BOSTON (AP) – A bill filed Wednesday would expand the scope of the state’s rape law, allowing prosecutors to bring charges against those who use fraud or deceit – not just physical force – to engage in sexual intercourse.

Proponents said existing law must be tightened after a Westfield man allegedly had sex with his brother’s girlfriend while posing as his brother in a darkened room, and a Wilbraham pharmacist allegedly posed as a gynecologist and gave exams to two women.

The Supreme Judicial Court ruled last year that the Westfield man could not be convicted of rape because sex obtained through fraud is not a crime, while Hampden County prosecutors decided last month they could not bring rape charges against the pharmacist for the same reason.

In its ruling last year, the state’s highest court urged the Legislature to address the issue, a process begun this week.

“For far too long our state has inadequately served survivors of rape and sexual assault yet based statute and common law on the dispelled myth that rape happens only at night, in a dark alley, at the hands of a stranger. This is not the case,” said Rep. Peter Koutoujian, D-Waltham, who filed the bill.

Joining him at a news conference at the Statehouse Wednesday were Middlesex District Attorney Gerard Leone and Worcester District Attorney Joe Early.

“‘No’ continues to mean “no;’ what this bill will ensure is that “yes’ means “yes,’ ” Leone said.

Koutoujian said the law would not ensnare so-called boasters, people who might brag of being a doctor, a war veteran, a sports star or something similar to win the affection of another.

“This legislation is meant to target sociopaths,” he said.

Nonetheless, Leone conceded he expected the issue would be discussed by the Legislature, since the bill as drafted does not specifically exempt boasters by name.

It says, in its entirety: “Whoever has sexual intercourse or unnatural sexual intercourse with a person having obtained that person’s consent by the use of fraud, concealment or artifice, and who thereby intentionally deceived such person so that a reasonable person would not have consented but for the deception, shall be punished by imprisonment in the state prison for life or any term of years. As used in this statute, “fraud’ or “artifice’ shall not be construed to mean a promise of future consideration.”

Leone said “fraud,” “concealment” and “artifice” have defined contexts in the courtroom and any court hearing a boasting case would likely look at the Legislature’s intent in passing the expanded rape definition before deciding if charges were warranted.

In addition, the final sentence would exempt those who obtained sex by, for example, promising to marry someone or give them a role in a movie.

Amid a series of questions from reporters, Koutoujian said prosecutors would consider societal norms, adding “I don’t know a norm of society right now that would bring those up for a charge of rape.” He immediately added, “We can never say never.”

Early said the primary focus of the bill is to target people such as the alleged fake boyfriend or the bogus doctor.

One supporter of the bill, Mary Lauby, executive director of Jane Doe Inc., a support service focused on ending domestic violence and sexual assault, said it also shifts legal thinking from long-held concerns rooted in property law or defendants’ rights to those more oriented toward victims and nonphysical threats.

“Neither of those serve us in the universe I live in,” she said of property or defendant rights.

Two cases highlighted the loophole in the state’s current rape law.

The first dates to January 2005, when Alvin Suliveres was accused of raping his brother’s girlfriend.

The woman was staying at her boyfriend’s home, where the brother also lived. While her boyfriend was working a night shift, the door opened and she assumed it was him returning.

The brother allegedly got into bed, removed her clothes and had sex with her for about 10 minutes. When he opened the door to leave, she realized it was the brother.

In the pharmacy case, Nicholas Creanza was arrested in 2005 after two women told police he assaulted them at the Louis & Clark pharmacy in Springfield. Prosecutors said Creanza performed pelvic examinations on the women, while posing as a doctor.

Creanza’s attorney said there was no evidence of rape or indecent assault and battery.

AP-ES-02-27-08 1502EST

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