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Court rules sex through use of fraud is not rape

A Hampden County man who allegedly tricked his brother's girlfriend into having sex with him by impersonating his sibling in the middle of the night cannot be convicted of rape, the state's highest court ruled yesterday in a controversial decision that affirms the court's long-held view that sex obtained through fraud is no crime.

The Supreme Judicial Court unanimously ruled that a judge should have dismissed the rape charge against Alvin Suliveres , 44, of Westfield, because Massachusetts law has for centuries defined rape as sexual intercourse by force and against one's will, and that it is not rape when consent is obtained through fraud.

If the Legislature wants to make sex through fraud qualify as rape, it should follow the lead of several other states -- including Alabama, California, Michigan, and Tennessee -- and change the law, the court said.

Brownlow M. Speer , a state public defender who represented Suliveres in the challenge, praised the ruling. His client, who has been free since his March 2006 trial ended in a hung jury, denies impersonating his brother and maintains that the sex was consensual.

But Wendy J. Murphy , who teaches at the New England School of Law and advocates for victims of violence, condemned the ruling as regressive.

"The message that the court sends today is . . . that a man's ability to obtain sex through fraud with regard to who he is is more important than a woman's fundamental right to control her own body," said Murphy. She added, "It is impossible -- as a matter of fact and law -- to consent to sex with the wrong person."

Justice Judith A. Cowin , one of two women on the court, wrote the ruling.

The case dates to a night in January 2005. The woman was living with her boyfriend, Duane Suliveres , in a basement room of his father's home, according to the defense brief. Alvin Suliveres was also staying at the house.

Duane Suliveres , now 33, was working night shifts, the brief said. At 3 a.m., the woman later told authorities, she was awakened by the sound of the door opening to the dark room and said, "Duane, why are you home so early?" but heard no response. Then, she said, someone she thought was her boyfriend got into bed, removed her clothes, and had sex with her for about 10 minutes.

He got up and opened the door, and she saw that it was Alvin Suliveres, she told authorities.

After Hampden County prosecutors presented their case, Suliveres's trial lawyer asked Superior Court Judge Tina S. Page to acquit his client for lack of evidence, but the judge refused. The case went to the jury, which could not reach a verdict.

Jonathan Saltzman can be reached at