State of Iowa v. Michael Cory Kelso-Christy

IN THE SUPREME COURT OF IOWA
No. 16–0134

Filed May 4, 2018

STATE OF IOWA,

Appellee,

vs.

MICHAEL CORY KELSO-CHRISTY,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Marion County, Martha L.

Mertz and Gregory A. Hulse, Judges.

Defendant seeks further review of his conviction for burglary in the

second degree, contending he did not enter the premises with the specific

intent to commit sexual abuse. DECISION OF COURT OF APPEALS AND

JUDGMENT OF DISTRICT COURT AFFIRMED.

Mark C. Smith, State Appellate Defender, and Melinda J. Nye,

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Tyler J. Buller and Sheryl Soich,

Assistant Attorneys General, and Edward Bull, County Attorney, for

appellee.
 2

CADY, Chief Justice.

In this appeal, we must primarily decide if one person’s consent to

engage in a sexual encounter with another, obtained through the other

actor’s fraudulent misrepresentations that he is someone else, constitutes

a valid consent to engage in the sexual encounter. We conclude such

deception does not establish consent to engage in a sexual encounter. We

affirm the judgment of the district court and the decision of the court of

appeals.

I. Factual Background and Proceedings.

In April 2015, Michael Kelso-Christy created a fake Facebook profile

of a man, S.P., who had attended his high school. Posing as S.P., Kelso-

Christy began to send Facebook messages to women who also attended

school with S.P. The messages informed women that S.P.’s profile had

been hacked and that he had created a new one. Then, Kelso-Christy

would attempt to solicit nude photographs or proposition the women for

sex.

On April 26, Kelso-Christy sent one such Facebook message to S.G.

The two began a conversation, as S.G. knew S.P. from high school. Posing

as S.P., Kelso-Christy gave S.G. his phone number and the two began

texting. The conversation turned sexual in nature.

Kelso-Christy repeatedly asked S.G. to send him nude photographs of

herself, which she ultimately did. Then, Kelso-Christy, still posing as S.P.,

suggested the two have a sexual encounter wherein S.G. would be

blindfolded and restrained in handcuffs. S.G. agreed and invited S.P. to

her home.

Kelso-Christy instructed S.G. to blindfold herself and wait for his

arrival, which she did. When Kelso-Christy arrived, he did not say

anything, but rather quickly handcuffed S.G. and proceeded to have
 3

intercourse. Afterwards, he immediately left S.G.’s home without undoing

the blindfold or handcuffs. S.G. eventually freed herself and saw a text

message from S.P. saying his brother was in the hospital and he could not

stay. S.G. grew suspicious when S.P. stopped responding to text messages

and the Facebook profile was no longer active. S.G. also did not see any

Facebook posts by others indicating that S.P.’s brother was hospitalized.

The next day, S.G. sent a message to the original S.P. Facebook account

and determined that someone had been impersonating him.

S.G. immediately contacted the sheriff’s office and reported her

assault. S.G. repeatedly affirmed she only consented to an encounter with

S.P., whom she knew personally, and never consented to any encounter

with Kelso-Christy. An investigation linked Kelso-Christy’s phone number

to the one given to S.G., and a latent print matching Kelso-Christy’s left

thumbprint was found on the condom wrapper used during the encounter.

Pursuant to a valid warrant, officers searched Kelso-Christy’s home and

found a list of women’s names in his bedroom that included S.G.’s. Kelso-

Christy was arrested and charged by trial information with burglary in the

first degree and sexual abuse in the third degree. The State and Kelso-

Christy reached a plea arrangement in which the State reduced the

charges to only burglary in the second degree, and Kelso-Christy agreed

not to resist a ten-year prison sentence if he was found guilty.

Prior to trial, Kelso-Christy filed a motion to dismiss the charge. He

asserted the stipulated evidence lacked any indicia that he entered S.G.’s

residence with the specific intent to commit sexual abuse. Kelso-Christy

argued S.G. consented to the sex act, and any concealment of his true

identity was mere fraud in the inducement. The district court overruled

the motion. It concluded S.G. only consented to have an encounter with

S.P. The district court reasoned that consent to a sex act inherently
 4

requires knowledge of the actual identity of the partner. Thus, the court

concluded that Kelso-Christy’s deception amounted to fraud in fact, which

vitiated any prior consent given by S.G.

Kelso-Christy agreed to a trial on the minutes of testimony. The

minutes indicated S.G. would testify that she only consented to engage in

a sexual encounter with S.P. The minutes also provided that S.P. would

testify that he never created a separate Facebook account and that he had

been contacted by other men who were angry with him for soliciting sex

from their wives and girlfriends.

The district court found Kelso-Christy guilty of burglary in the

second degree in violation of Iowa Code section 713.5 (2015). The court

concluded (1) Kelso-Christy entered S.G.’s residence, (2) the residence was

an occupied structure, (3) Kelso-Christy did not have authority or

permission to enter the residence, (4) the residence was not open to the

public, (5) one or more persons was present in the structure, and (6) Kelso-

Christy entered the residence with the specific intent to commit sexual

abuse. The district court sentenced Kelso-Christy to ten years in prison

and imposed a $1000 fine.

Kelso-Christy appealed. He asserted the record lacked sufficient

evidence to find he acted with the specific intent to commit sexual abuse.

We transferred the case to the court of appeals. The court found S.G.

consented to a sexual encounter with a specific former classmate and,

instead, experienced an entirely different act—an act to which she plainly

did not consent. Accordingly, the court held there was sufficient evidence

to conclude Kelso-Christy entered S.G.’s home with the specific intent to

commit sexual abuse. Kelso-Christy applied for further review, which we

granted.
 5

II. Standard of Review.

We review the sufficiency of the evidence for correction of errors at

law. State v. Robinson, 859 N.W.2d 464, 467 (Iowa 2015). Pursuant to

this review, “we examine whether, taken in the light most favorable to the

State, the finding of guilt is supported by substantial evidence in the

record.” State v. Meyers, 799 N.W.2d 132, 138 (Iowa 2011). Substantial

evidence exists when the evidence “would convince a rational fact finder

the defendant is guilty beyond a reasonable doubt.” Id.

III. Analysis.

To support the conviction in this case, the State was required to

prove six elements beyond a reasonable doubt: (1) the defendant entered

a structure; (2) the structure was occupied; (3) the structure was not open

to the public; (4) the defendant did not have permission to enter the

structure; (5) one or more persons were present in the structure at the

time of entry; and (6) the defendant entered the structure with an intent

to commit a felony, assault, or theft therein. Iowa Code § 713.1, .5. The

parties do not dispute that the State has proven the first five elements.1

Accordingly, we only consider whether Kelso-Christy entered S.G.’s

residence with the specific intent to commit sexual abuse. Kelso-Christy
primarily argues his nefarious actions in arranging the encounter with

S.G. did not vitiate her consent and that the State failed to submit any

evidence that he entered her house with the intent to commit sexual

abuse.

A. Mens Rea and Sexual Abuse. The focal point of the crime of

sexual abuse is consent. Id. § 709.1(1). This critical element does not

1Kelso-Christy’s position on appeal, therefore, is that he obtained consent to
sexual intercourse with S.G. by posing as S.P., but he did not obtain permission to enter
S.G.’s home by posing as S.P.
 6

inquire into the mind of the defendant to create a specific-intent crime,

but turns on the intentions and mental state of the victim. See State v.

Riles-El, 453 N.W.2d 538, 539 (Iowa Ct. App. 1990) (“[S]exual abuse is a

general intent crime.”); see also State v. Booth, 169 N.W.2d 869, 874 (Iowa

1969) (“[T]he crime of rape requires no specific intent. The statutory

definition makes the proof of certain acts alone sufficient and the general

criminal intent is supplied by the performance of such acts.”). In this case,

however, the defendant was not convicted of sexual abuse. Instead, he

was charged and convicted of burglary based upon the entry into an

occupied structure with the intent to commit sexual abuse. Thus, the

crime of burglary was committed only if the offender intended to engage in

a nonconsensual sex act when entering the residence of S.G. Accordingly,

our inquiry is ultimately directed at the intent of the defendant, but we

nevertheless examine that intent to see if the facts support a finding of

intent to engage in a sex act without the consent of the other person.

B. Specific Intent to Commit Sexual Abuse.

1. Sexual abuse. Sexual abuse is “[a]ny sex act . . . done by force

or against the will of the other.” Iowa Code § 709.1(1). Beyond the “against

the will of the other” standard, the legislature has codified specific,

additional instances of nonconsent. See id. §§ 709.1–.4. By utilizing both

broad and specific conceptualizations of sexual abuse, the legislature

sought to “capture both case-specific circumstances of an ‘actual failure

of consent’ as well as circumstances when the legislature has declared

‘consent as incompetent’ or nonexistent.” Meyers, 799 N.W.2d at 143

(quoting Model Penal Code & Commentaries § 213.1 cmt. 4, at 301 (1980)).

The purpose of criminalizing sexual abuse is to protect the freedom

of choice to engage in sex acts. Id. We have previously explained that “the

‘against the will of another’ standard seeks to broadly protect persons from
 7

nonconsensual sex acts, even under circumstances showing the victim

had no opportunity or ability to consent.” Id. Indeed, in furtherance of

the statute’s clear purpose, we inquire into whether the victim gave

meaningful consent and consider the “circumstances indicating any

overreaching by the accused, together with circumstances indicating any

lack of consent by the other person.” Id. at 146.

At the same time, we are mindful that “the [sex abuse] statute as a

whole expresses no limit on the conduct or circumstances that can be used

to establish nonconsent.” Id. at 143. For example, in Meyers, we

considered whether the “against the will” element “includes circumstances

in which pervasive psychological coercion vitiates the consent of the

victim.” Id. at 140. Although the statute did not specifically provide for

“rape by psychological coercion” within chapter 709, we explained “the

legislature never intended to limit the circumstances that could be used

to vitiate consent under the ‘by force or against the will’ standard.” Id. at

144. Rather, the “against the will” element is deliberately broad and

consciously designed to capture all circumstances when “there is an actual

failure of consent.” Id. at 143 (quoting Model Penal Code & Commentaries

§ 213.1 cmt. 4, at 301). Accordingly, we held “psychological force or

inability to consent based on the relationship and circumstance of the

participants may give rise to a conviction under the ‘against the will’

element of” sexual abuse. Id. at 146.

As in other cases that do not involve conduct that is expressly

identified as sexual abuse within section 709.1 or section 709.4, we apply

the “against the will of the other” standard to the case-specific

circumstances to determine whether there was an actual failure of

consent. We look to Kelso-Christy’s state of mind to determine the
 8

sufficiency of evidence that he intended to engage in a sex act in the

absence of consent.

2. Specific intent. As to the specific intent of Kelso-Christy, we have

said that

[i]ntent is a state of mind difficult of proof by direct evidence.
It may, however, be established by circumstantial evidence
and by inferences reasonably to be drawn from the conduct of
the defendant and from all the attendant circumstances in the
light of human behavior and experience.

State v. Casady, 491 N.W.2d 782, 787 (Iowa 1992) (quoting State v. Erving,

346 N.W.2d 833, 836 (Iowa 1984)). “Direct and circumstantial evidence

are equally probative.” State v. Maynard, 379 N.W.2d 382, 383 (Iowa Ct.

App. 1985). A defendant acts with the specific intent to commit sexual

abuse if

[t]he overt act . . . reach[es] far enough towards the
accomplishment, toward the desired result, to amount to the
commencement of the consummation, not merely
preparatory. It need not be the last proximate act to the
consummation of the offense attempted to be perpetrated, but
it must approach sufficiently near it to stand either as the first
or some subsequent step in a direct movement towards the
commission of the offense after the preparations are made.

State v. Radeke, 444 N.W.2d 476, 478 (Iowa 1989) (quoting Maynard, 279

N.W.2d at 383).

In Casady, we determined a defendant’s prior crimes evinced a

modus operandi of committing sexual abuse. 491 N.W.2d at 788. In that

case, the defendant approached a woman in his vehicle, “lured her to the

window, and grabbed her arms in an attempt to pull her inside the car.”

Id. at 786. The defendant “did not make any sexual comment to [the

victim], touch her in a sexual manner, attempt to remove any clothing, or

act in any other way which would indicate a plan to engage in sexual

activity.” Id. at 787.
 9

However, the State presented evidence of two prior crimes involving

strikingly similar facts. Id. at 784. In 1976, the defendant attempted to

lure a woman into his car, and when she refused, he struck her and began

to remove her clothing before a passerby intervened. Id. In custody, the

defendant informed the officers “he intended to have sex with the woman.”

Id. In 1979, the defendant again attempted to lure a woman into his car.

Id. at 784–85. The defendant pulled her into the vehicle, “drove to a remote

area[,] and repeatedly sexually assaulted” her. Id. at 785. We concluded

the defendant’s assault in the case at issue was “equally similar to the

1979 crime he committed,” and the “modus operandi was clearly parallel.”

Id. at 788. Thus, “the trial court could reasonably infer that if [the victim]

had not escaped, Casady would have continued with his plan and

committed sexual abuse.” Id.

In Radeke, the defendant made an appointment to meet a real estate

agent in a remote area using a false name and personal history. 444

N.W.2d at 478. He specifically requested that the female agent, rather

than the homeowner, show him the house. Id. He falsely informed the

agent he was married with children and that his employer was purchasing

the home, despite being unemployed, unmarried, and without children.

Id. During the viewing of the home, the “defendant got behind the agent,

put his hands over her mouth, grabbed her around the waist, and told her

that if she did as he said, he would not hurt her.” Id. at 477. Defendant

then instructed the agent to unbutton her blouse, which she did. Id. The

agent then managed to escape the defendant’s hold. Id. The defendant

apologized and left immediately. Id.

We concluded sufficient evidence existed to convict the defendant of

assault with intent to commit sexual abuse. Id. at 479. First, we

explained, “Planned deception is inconsistent with claimed innocent
 10

purposes,” and a jury could easily infer the defendant’s misrepresentations

“were made to prevent his apprehension after committing an illegal act.”

Id. at 478. Second, the defendant only left after the owner informed him

“that her office knew where she was and that the owner was on his way

home.” Id. Thus, a jury could infer that “her statements made him so

fearful of discovery that he then chose to leave rather than to sexually

assault her.” Id. Third, the defendant’s “own words and actions” lent

themselves to a finding of specific intent. Id. “The evidence of deception,

assault and defendant’s desire to have sex are circumstances from which

the jury could infer an intent to commit sexual abuse.” Id. at 479.

Because the circumstantial evidence was sufficient for a reasonable juror

to conclude beyond a reasonable doubt that the defendant acted with the

specific intent to commit sexual abuse, we affirmed his conviction. Id.

3. Merits. In this case, we are challenged to consider how the

deception used by Kelso-Christy impacted the issue of consent.

Kelso-Christy argues he could not have intended to commit sexual abuse

when he entered the residence because S.G. had consented to the

encounter and the deception he used did not undermine or vitiate that

consent.

In State v. Bolsinger, we acknowledged that some forms of deception

are substantial enough to negate a prior consent.

If an act is done that is different from the act the
defendant said he would perform, this is fraud in fact. If the
act is done as the defendant stated it would be, but it is for
some collateral or ulterior purpose, this is fraud in the
inducement. Fraud in fact vitiates consent; fraud in the
inducement does not. . . .
[I]f deception causes a misunderstanding as to the fact
itself (fraud in the factum) there is no legally-recognized
consent because what happened is not that for which
consent was given; whereas consent induced by fraud
is as effective as other consent, so far as direct and
 11
immediate legal consequences are concerned, if the
deception relates not to the thing done but merely to
some collateral matter (fraud in the inducement).

709 N.W.2d 560, 564 (Iowa 2006) (quoting Rollin M. Perkins & Ronald N.

Boyce, Criminal Law ch. 9, § 3, at 1079 (3d ed. 1982) [hereinafter Perkins

& Boyce]).

To illustrate, we observed that the distinction between fraud in fact

and fraud in the inducement is commonly seen in cases in which a patient

consents to a medical procedure only to discover that the doctor engaged

in a sexual act. Id. We favorably quoted a treatise that explained when a

doctor informs the patient of his or her intention to engage in a sex act,

but misrepresents its medical necessity, the doctor’s misrepresentation is

fraud in the inducement. Id. In that instance, “the patient knew exactly

what was to be done and was deceived only in regard to a collateral

matter—the reason why it was to be done.” Id. (quoting Perkins & Boyce,

at 1079–80). Conversely, a doctor who obtains consent to a legitimate

procedure, but then instead performs an undisclosed sexual act, engages

in fraud in the factum, and any consent to the “procedure” is vitiated. Id.

In Bolsinger, we adopted the treatise’s reasoning. In that case, a

program supervisor in a state facility for delinquent boys repeatedly

brought boys into a private room and touched their genitals. Id. at 562.

The supervisor informed the boys he was checking for injuries and

testicular cancer and requested permission before conducting the “exam.”

Id. The boys testified they would not have consented to the touching if

they knew the true reason behind the request, which was the supervisor’s

sexual gratification. Id.

Because the boys consented to the encounter, but were misled about

the motivations behind it, we held the supervisor’s conduct amounted to

fraud in the inducement. Id. at 564. Had the boys consented to a different
 12

body part being touched and the supervisor instead touched their genitals,

the supervisor would have engaged in fraud in fact. Id. However, because

“the victims were touched in exactly the manner represented to them,” the

supervisor’s deception was fraud in the inducement and did not

undermine the boys’ consents. Id.

Kelso-Christy asserts that the approach we followed in Bolsinger is

dispositive in this case. He claims his deception initiated through the

Facebook page only extended to inducement, not to the sex acts that the

two actors subsequently engaged in during the encounter. As with the

deception visited on the boys in Bolsinger that did not vitiate consent,

Kelso-Christy claims no sexual abuse occurred in this case as a matter of

law because S.G. consented to the encounter that took place, and his fraud

only went to his conduct in inducing her consent. As such, he asserts he

could not have committed burglary because he did not have intent to

commit sexual abuse when he entered the residence.

As Bolsinger reveals, fraud or deceit may or may not vitiate consent

to a sexual encounter. The rule we have followed is that consent is vitiated

by deceit when the deception is fraud in the fact, but not when the

deception is fraud in the inducement. This rule was built on the notion

that consent between two actors only extends to the act agreed to by the

two persons. If the agreed to act is different from the act that ultimately

occurred, there is no consent for that act. However, when the fraud or

deception does not result in a different act, but relates to the matter

collateral to the act, the consent given is not vitiated because the agreed

to act is still the act that occurred.

While the path we pursued in Bolsinger can be questioned, it is

unnecessary to resolve if it was incorrectly decided. The Bolsinger rule did

not contemplate situations in which one actor, through fraud or deception,
 13

induces another person to consent to an act under the false pretense the

actor is a different person entirely. Matters are collateral when they are

not essential to the resolution of an issue, and motives and reasons behind

the acts of defendants are generally viewed in our law to be collateral to

the elements of the crime and are not part of the crime itself. Thus, it is

understandable that deceptive motives can be viewed to be outside the rule

that fraud vitiates consent in cases of sexual abuse. Even though the

motive may have been fraudulent, the two actors ultimately engaged in the

agreed to act.

Yet, consent to engage in a sexual act with one person is not consent

to engage in the same act with another actor. Deception in this context is

not collateral in any way, but goes to the very heart of the act. When a

person is deceived as to who is performing the previously consented to act,

the person ultimately experiences an entirely separate act than what was

originally agreed to. This approach is consistent with our long-standing

principle that consent to engage in sexual intercourse with one person

does not imply consent to engage in sexual intercourse with another

person. See State v. Ball, 262 N.W.2d 278, 279 (Iowa 1978).

In Ball, a defendant accused of sexual abuse sought to introduce

evidence of the “victim’s sexual conduct with third parties during the year

preceding this incident.” Id. We determined the evidence was irrelevant.

Id. at 281. In so finding, we explained “[w]e have never adopted the

principle that a victim’s consent to intercourse with one man implies her

consent in the case of another, and we reject it now.” Id. at 280. While

this principle was originally adopted in the evidentiary context, we find it

is equally applicable in the present case.

Accordingly, it has long been the law that belief in consent to

intercourse cannot be predicated upon the victim’s consent to intercourse
 14

with someone else. See also Young v. State, 429 So. 2d 1162, 1163 (Ala.

Crim. App. 1983) (“Complainant’s past sexual conduct has no bearing on

whether she has consented to sexual relations with defendant.” (quoting

People v. Cornes, 399 N.E.2d 1346, 1352 (Ill. App. Ct. 1980))); State ex rel.

Pope v. Super. Ct., 545 P.2d 946, 952 (Ariz. 1976) (en banc) (“The fact that

a woman consented to sexual intercourse on one occasion is not

substantial evidence that she consented on another, but in fact may

indicate the contrary.”); Lynn v. State, 203 S.E.2d 221, 222 (Ga. 1974)

(“(The) more satisfactory reason (for the rule) is that her consent in the

case of one man does not imply consent in the case of another.” (alteration

in original) (quoting 3 Underhill’s Criminal Evidence 1766 (5th ed.)));

Commonwealth v. McKay, 294 N.E.2d 213, 218 (Mass. 1973) (“[T]he

victim’s consent to intercourse with one man does not imply her consent

in the case of another.”); People v. Williams, 330 N.W.2d 823, 828 (Mich.

1982) (“[T]he notion that unchaste women are especially prone to lying has

become as antiquated and as fatuous as the belief that simply because a

woman has consented to intercourse with a third party on another

occasion, she probably consented to intercourse with the defendant.”);

State v. Hill, 244 N.W.2d 728, 731 (Minn. 1976) (“[T]he proffered evidence

of complainant’s prior cohabitation with two men did not have sufficient

probative value in the context of this case to permit its introduction on the

issue of whether or not she consented to sexual relations with this

defendant.”); Goss v. State, 465 So. 2d 1079, 1082 (Miss. 1985) (“The fact

that the prosecutrix voluntarily had sexual relations with her boy friend,

Charles Goss, and even that she might possibly have had sex with Jerry

Hunt, has little probative value on the issue of consent in the assault in

question . . . .”); State v. Green, 260 S.E.2d 257, 261 (W. Va. 1979) (“A rape

victim’s previous sexual conduct with other persons has very little
 15

probative value about her consent to intercourse with a particular person

at a particular time.”). This law is relevant to this case. Kelso-Christy may

have deceived S.G. into consenting to engaging in a sex act with another

person, but not with him.

Kelso-Christy relies on two cases from other states to argue that

deception as to the actual person who is performing the sexual act cannot

give rise to a sexual abuse conviction. In the first case, People v. Hough, a

New York trial court held that a man who pretended to be his twin brother

in order to have sexual intercourse with his brother’s girlfriend was not

guilty of sexual misconduct. 607 N.Y.S.2d 884, 884, 886–87 (Dist. Ct.

1994). The outcome in Hough, however, rested on the prosecutor’s error

in charging the defendant with sexual misconduct rather than sexual

abuse. For the crime of sexual misconduct, lack of consent “results from

forcible compulsion or incapacity to consent.” Id. at 885. Conversely, for

the crime of sexual abuse, nonconsent exists under “any circumstances

. . . in which the victim does not expressly or impliedly acquiesce in the

actor’s conduct.” Id. The court found “[t]he lack of consent which forms

the basis of the charge against defendant is not claimed to have been by

forcible compulsion or the complainant’s incapacity to consent.” Id.

Although the definition of nonconsent for sexual misconduct is narrow,

“[w]here the Legislature intended to extend the definition of lack of

consent, it did. For instance, lack of consent as applied to the crime of

sexual abuse . . . .” Id. at 887. Accordingly, the court had “no choice but

to dismiss the charge of sexual misconduct.” Id.

Importantly, the court then explained “this decision is not

concluding that the defendant did not do anything wrong . . . . Instead,

what this court is saying is that the District Attorney’s office has charged

the defendant with the wrong crime.” Id. The court, therefore, did not find
 16

that deception as to the actual person performing the sexual act is not

sexual abuse. Rather, the court found that the narrow, exhaustive

definition of nonconsent for sexual misconduct did not contemplate the

defendant’s actions. Here, Iowa’s sexual abuse statute, in stark contrast

with the statute at issue in Hough, is intentionally broad and seeks to

capture all instances of actual nonconsent. Thus, Hough’s holding that

the defendant’s scheme did not involve forcible compulsion or incapacity

is not instructive.

Second, Kelso-Christy relies on the Massachusetts Supreme Court

case, Suliveres v. Commonwealth, 865 N.E.2d 1086 (Mass. 2007). In

Massachusetts, the crime of rape is defined as “sexual intercourse

compelled ‘by force and against [the] will’ of the victim.” Id. at 1087

(alteration in original) (emphasis added) (quoting Mass. Gen. Laws ch. 265,

§ 22). In 1959, the Massachusetts Supreme Court concluded that “it is

not rape when consent to sexual intercourse is obtained through fraud or

deceit,” as “ ‘[f]raud cannot be allowed to supply the place of force which

the statute makes mandatory.’ ” Id. (alteration in original) (quoting

Commonwealth v. Goldenberg, 155 N.E.2d 187, 192 (Mass. 1959)). At

issue in Suliveres was whether the court should “overrule the Goldenberg

decision and hold that misrepresentations can in fact substitute for the

requisite force.” Id.

The court declined to overturn Goldenberg. The court explained that

it has “never suggested that force is not an element of the crime, or that

‘by force’ is synonymous with lack of consent.” Id. at 1089. The court was

not free to remove elements of a crime. Id. Further, Goldenberg had been

the law for forty-eight years and yet the legislature failed to address the

holding. Id. at 1090. Thus, in Massachusetts, the crime of rape requires

proving the element of force, and deception as to the actual person
 17

performing the sex act cannot supplant the necessary statutory element

of force. Id. However, the court did conclude that, as in Goldenberg,

deception as to the person performing the sex act was fraud in the

inducement, as “there is no claim that the complainant did not know she

was consenting to a sex act.” Id.

We disagree with the characterization of the conduct in Suliveres as

fraud in the inducement. As in this case, the deception was no collateral

matter, but went to the heart of the act. Furthermore, beyond that

characterization, Suliveres rests entirely on the force element in the

Massachusetts rape statute. The Iowa legislature eliminated the force

requirement for sexual abuse in 1921. 1921 Iowa Acts ch. 192, § 1. Thus,

we are not adding or removing elements from the sexual abuse statute,

but rather considering whether, in light of all the circumstances, Kelso-

Christy intended to engage in sexual intercourse in the absence of consent.

Reliance on Suliveres is therefore inapposite.

Accordingly, we reject the claim by Kelso-Christy that S.G.

consented to the sexual encounter as a matter of law because the

deception he engaged in was insufficient to vitiate the consent. We,

therefore, consider whether sufficient evidence was presented to support

the finding that Kelso-Christy intended to engage in a sexual encounter

with S.G. in the absence of her consent at the time he entered the house.

Under this framework, we consider what was known to Kelso-Christy at

the time of entry and whether there is substantial evidence in the record

to support a finding that he entered S.G.’s residence with the intent to

commit sexual abuse.

When Kelso-Christy entered S.G.’s home, he knew that S.G.

intended to have a sexual encounter with another man, but not with him.

Unlike in Bolsinger, Kelso-Christy knew S.G. never consented to any
 18

physical contact with him, sexual or otherwise. Rather,

Kelso-Christy knew S.G. wished to have sex with someone else and simply

decided that fact gave him license to proceed, regardless of S.G.’s actual

feelings or preferences. Because it has long been the law in Iowa that

consent to sex with one man cannot imply consent to sex with another,

Kelso-Christy could not have believed S.G. consented to a sexual

encounter with him.

Further, the exact circumstances of Kelso-Christy’s scheme buttress

our finding that he entered S.G.’s residence with the intent to proceed with

sexual intercourse in the absence of consent. Kelso-Christy created a fake

social media profile and made plans to ensure that S.G. would be

blindfolded and bound during the duration of the encounter. A reasonable

juror could conclude that Kelso-Christy anticipated that S.G. might

discover his ploy and attempt to flee, and thus he took steps to ensure that

she would be unable to escape. See Radeke, 444 N.W.2d at 478–79.

Accordingly, we find Kelso-Christy entered S.G.’s home with the intent to

engage in sexual intercourse with someone who had not consented to the

encounter.

IV. Conclusion.

The identity of a sexual partner is no mere collateral matter.

Women, and men, must be free to decide, on their own terms, who their

sexual partners will be. Kelso-Christy’s actions denied S.G. the “freedom

of choice” that breathes life into our sexual abuse statutes. Meyers, 799

N.W.2d at 143. That she consented to an encounter with another man is

irrelevant. Because substantial evidence in the record supports a finding

that Kelso-Christy entered S.G.’s home with the intent to commit sexual

abuse, we affirm his conviction.
 19

DECISION OF COURT OF APPEALS AND JUDGMENT OF

DISTRICT COURT AFFIRMED.

All justices concur except Wiggins and Appel, JJ., who dissent, and

Hecht, J., who takes no part.
 20

#16–0134, State v. Kelso-Christy

WIGGINS, Justice (dissenting).

I respectfully dissent for a number of reasons. Before I delve into

the crux of my dissent based on the language of Iowa Code section 709.1(1)

(2015), I discuss some preliminary matters.

First, I mention the distinction between fraud in fact and fraud in

the inducement. Fraud in fact means the defendant misrepresents the

nature of the act performed. State v. Bolsinger, 709 N.W.2d 560, 564 (Iowa

2006). For example, when the victim consents to a medical examination

but the defendant performs a sex act instead, it is fraud in fact. Id. In

contrast, fraud in the inducement means the defendant misrepresents the

circumstances surrounding the act. Id. For example, when the defendant

asks for permission to touch the genitals under the guise of checking for

testicular cancer and performs the act in the manner he said he would for

purposes of sexual gratification, it is fraud in the inducement. See id. at

562.

We stated in Bolsinger that “[f]raud in fact vitiates consent; fraud in

the inducement does not.” Id. at 564. The negative implication of this

reasoning is that there is valid consent in the first instance for both types

of fraud.

In terms of legal consequences, I think it is irrelevant whether the

deception was to a facet of Michael Kelso-Christy’s identity or to the whole

of another’s identity, although the latter may be more morally

reprehensible. The majority’s decision implicitly creates different tiers or

degrees of fraud in the inducement. Yet we did not create tiers or degrees

of fraud in the inducement in Bolsinger. Rather, in Bolsinger, we treated

fraud in the inducement as an umbrella term that encompasses fraud in

part and fraud in whole.
 21

It is true that in United States v. Booker, the United States Court of

Military Appeal stated, “[C]onsent to the [sex] act is based on the identity

of the prospective partner.” 25 M.J. 114, 116 (C.M.A. 1987). However, the

court qualified this statement in a footnote “[i]n light of the two separate

opinions.” Id. at 116 n.2. In distinguishing fraud in fact from fact in the

inducement, Judge Cox, the author of the lead opinion, stated, “I must

acknowledge that perhaps I have treated the subject of ‘fraud in the factum’

too gently.” Id. Judge Cox continued, “[F]or there to be actual consent, a

woman must [agree] to the penetration of her body by a particular

‘membrum virile,’ . . . ; it is quite irrelevant whether she knows the ‘real’

identity of the owner thereof.” Id. (citation omitted).

Our caselaw recognizes the distinction between fraud in fact and

fraud in the inducement. Our caselaw does not debate the question as to

whether vitiating consent concerns only the act itself or also the actor. The

former goes to fraud in fact while the later goes to fraud in the inducement.

We drew that line in Bolsinger.

Assuming the logic behind the distinction between fraud in the

inducement and fraud in fact is sound, the case at hand is a fraud-in-the-

inducement case and, as such, Kelso-Christy’s impersonation of S.P. did

not vitiate S.G.’s consent. This reasoning alone undermines the majority’s

outcome.

Second, the fact that the court convicted Kelso-Christy of burglary

in the second degree, rather than sexual abuse, does not affect the

outcome of my dissent. I acknowledge the crime of sexual abuse is a

general intent crime. I also acknowledge that because the court convicted

Kelso-Christy of burglary, the issue is whether Kelso-Christy entered

S.G.’s residence with the specific intent to commit sexual abuse.
 22

The majority uses State v. Ball, 262 N.W.2d 278, 280 (Iowa 1978),

to support its proposition that “it has long been the law in Iowa that

consent to sex with one man cannot imply consent to sex with another” to

unpack Kelso-Christy’s mental state at the time he entered S.G.’s

residence. In Ball, the defendant sought to introduce evidence of the

victim’s sexual conduct with other people during the year prior to the

incident in which the defendant raped her. Id. at 279. We determined the

evidence was irrelevant to the issue of whether the victim had consented

to have sexual intercourse with the defendant. Id. at 281. In other words,

we held the victim’s past sexual history with third parties did not tend to

show the victim consented to sexual intercourse with the defendant.

Here, Kelso-Christy is not attempting to admit evidence of S.G.’s

past sexual conduct with third parties to show S.G. consented to have

sexual intercourse with him. Nevertheless, the majority’s expansion of

Ball to the facts of this case makes sense when supporting the majority’s

conclusion that Kelso-Christy could not have believed S.G. consented to

have sexual intercourse with him. However, analyzing specific intent is

putting the cart in front of the horse. In the end, it ultimately does not

matter what Kelso-Christy intended because the language of Iowa Code

section 709.1(1) does not provide for sexual abuse by fraud or deception.

I would therefore find Kelso-Christy did not commit sexual abuse pursuant

to section 709.1(1). This leads me to my third point.

Iowa Code section 709.1(1) provides,

Any sex act between persons is sexual abuse by either
of the persons when the act is performed with the other person
in any of the following circumstances:

1. The act is done by force or against the will of the
other. If the consent or acquiescence of the other is procured
by threats of violence toward any person or if the act is done
while the other is under the influence of a drug inducing sleep
 23
or is otherwise in a state of unconsciousness, the act is done
against the will of the other.

Iowa Code § 709.1(1) (emphasis added).

As a general rule of statutory construction, we narrowly and strictly

construe criminal statutes and resolve doubts in the defendant’s favor.

State v. Halverson, 857 N.W.2d 632, 637 (Iowa 2015). “To the extent there

is an unresolved ambiguity, our cases require a narrow construction of the

statute.” Id. at 638. The ambiguity here is whether “against the will of the

other” encompasses deception.

Our legislature has not provided for sexual abuse by deception in

section 709.1(1). We must not write words into the statute. Auen v.

Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004). “In the end, a

criminal statute cannot be expanded beyond those circumstances

intended by the legislature to be within the scope of the statute.” State v.

Meyers, 799 N.W.2d 132, 141 (Iowa 2011).

I examine two instructive cases. In Suliveres v. Commonwealth, the

defendant impersonated the identity of his brother—the victim’s

boyfriend—and had sexual intercourse with the victim. 865 N.E.2d 1086,

1088 (Mass. 2007). The victim believed she was having intercourse with

her boyfriend, and had she known it was the defendant, she claimed she

would not have consented. Id.

The court addressed whether it should overrule Commonwealth v.

Goldenberg, 155 N.E.2d 187 (Mass. 1959), in which it had held consent to

a sex act obtained through fraud or deceit was not rape. Suliveres, 865

N.E.2d at 1087. The court examined the rape statute, which provides,

(b) Whoever has sexual intercourse or unnatural sexual
intercourse with a person and compels such person to submit
by force and against his [or her] will, or compels such person
to submit by threat of bodily injury, shall be punished . . . .
 24

Id. at 1088 (quoting Mass. Gen. Laws ch. 265, § 22(b)).

I acknowledge that the Massachusetts rape statute provides for “by

force and against his [or her] will.” See id. (emphasis added) (quoting

Mass. Gen. Laws ch. 265, § 22(b)). Moreover, I acknowledge Goldenberg

concluded “[f]raud cannot be allowed to supply the place of the force [that]

the statute makes mandatory[.]” Id. (alteration in original) (quoting

Goldenberg, 155 N.E.2d at 192). However, that is not the point. I rely on

Suliveres for the principle that the judiciary may not usurp the role of the

legislature to pen an outcome-driven opinion.

The court in Suliveres honored the doctrine of separation of powers

in concluding the statute did not define rape to include fraudulently

obtaining consent to sexual intercourse. See id. at 1090. It reasoned the

legislature is aware of existing statutes and the prior state of the law when

it enacts legislation. Id. It further reasoned the legislature did not overrule

Goldenberg in forty-eight years although it had amended the statute three

times and despite the changing attitudes and scholarship concerning rape.

Id. Most importantly, the court reasoned, “The [l]egislature is free to

amend the rape statute or create a new substantive offense to encompass

the conduct at issue, as many other States have done.” Id. “However,

where the [l]egislature has chosen not to do so, ‘[i]t is not for this court . . .

to rewrite the clear intention expressed by the statute.’ ” Id. (quoting

Commonwealth v. Leno, 616 N.E.2d 453, 457 (Mass. 1993)). Thus, the

court held under the statute, fraudulently procuring consent to sexual

intercourse did not constitute rape. Id. at 1091.

Moreover, the court assumed the defendant committed fraud in the

inducement. Id. at 1089. Notably, the court did not give any weight to the

fact the defendant impersonated another’s identity in whole, rather than

just an aspect of his identity. See id. at 1089.
 25

In People v. Hough, the defendant impersonated the identity of his

twin brother—the victim’s boyfriend—and deceived the victim into having

sexual intercourse with him. 607 N.Y.S.2d 884, 884 (Dist. Ct. 1994). The

court addressed whether the victim had actually consented to sexual

intercourse with the defendant when the defendant had procured her

consent by impersonating her boyfriend. Id. at 885. The New York sexual

misconduct statute at the time provided, “A person is guilty of sexual

misconduct when: . . . Being a male, he engages in sexual intercourse with

a female without her consent.” Id. at 884 (quoting N.Y. Penal Law

§ 130.20(1)). 2 The court read this statute in conjunction with section

130.05, which provides the definition of lack of consent. Id. at 885. The

court reasoned the victim did not claim her lack-of-consent was based on

either “forcible compulsion” or “incapacity to consent.” Id. Instead, lack

of consent stemmed from the victim’s “mistaken belief resulting from [the]

defendant’s alleged fraud.” Id.

Admittedly, for the crime of sexual abuse, as opposed to that of

sexual misconduct, the statute provides that lack of consent encompasses

“any circumstances in addition to forcible compulsion or incapacity to

consent in which the victim does not expressly or impliedly acquiesce in
the actor’s conduct.” Id. (citing N.Y. Penal Law § 130.05(2)(c)). The plain

language of the statute reflects the New York legislature’s intent to expand

the definition of lack of consent. However, our legislature has not done so.

Thus, because Iowa Code section 709.1(1) does not include fraud or

deception, I find the logic of Hough applicable to this case.

In fact, the court observed, “In general, in the absence of a statute,

where a woman is capable of consenting and does consent to sexual

2The statute now uses gender-neutral terms but the substance remains the same.
See N.Y. Penal Law § 130.20(1) (McKinney, Westlaw through L. 2018, ch. 1–3).
 26

intercourse, a man is not guilty of rape even though he obtained the

consent through fraud or surprise.” Id. at 886 (emphasis added). The

court relied on basic rules of statutory construction to conclude the

legislature had defined what constitutes lack of consent and had not

included fraud or deception in the statute. Id. at 886–87. In affirmatively

stating “[c]ourts should avoid judicial legislation[,]” the court deferred to

the language of the applicable statutes. Id. at 887. The court reasoned,

“It is a basic tenet of statutory law that where the legislature fails to include

a matter within the scope of an act, its exclusion was intended.” Id. at 886

(emphasis added). Thus, the court concluded the legislature intended to

exclude fraud or impersonation cases from the definition of lack of

consent, which is a necessary element to prove sexual misconduct under

section § 130.20(1). Id. at 887.

Iowa Code section § 709.1(1) does not provide for sexual abuse by

deception. If the legislature wants to subsume fraudulently obtaining

consent to sexual intercourse under the statutory definition of sexual

abuse, then it knows how to do so. For example, other states have codified

fraudulent inducement as a form of rape or sexual misconduct. See, e.g.,

Ala. Code § 13A-6-65(a)(1) (Westlaw current through Act 2018-124, Act

2018-126 through Act 2018-151, and Act 2018-153 through Act 2018-

392) (stating “[a] person commits the crime of sexual misconduct if” the

man has sexual intercourse with a woman “where consent was obtained

by the use of any fraud or artifice”); Cal. Penal Code § 261(a)(5) (West,

Westlaw through ch. 10 of 2018 Reg. Sess.) (stating rape constitutes

“sexual intercourse accomplished with a person not the spouse of the

perpetrator . . . [w]here a person submits under the belief that the person

committing the act is someone known to the victim other than the accused,

and this belief is induced by any artifice, pretense, or concealment
 27

practiced by the accused, with intent to induce the belief”); Kan. Stat. Ann.

§ 21-5503(a)(4)–(5) (West, Westlaw through 2018 Reg. Sess.) (providing

rape constitutes “sexual intercourse with a victim when the victim’s

consent was obtained through a knowing misrepresentation made by the

offender”); Mich. Comp. Laws Ann. § 750.520b(1)(f)(v) (West, Westlaw

through P.A. 2018, No. 111 and 114) (providing sexual penetration of

another “through concealment” constitutes criminal sexual conduct in the

first degree); Okla. Stat. Ann. tit. 21, § 1111(6) (West, Westlaw through ch.

65, 2018 2d Reg. Sess.) (providing rape constitutes sexual intercourse in

which “the victim submits to sexual intercourse under the belief that the

person committing the act is a spouse, and this belief is induced by

artifice, pretense, or concealment practiced by the accused or by the

accused in collusion with the spouse with intent to induce that belief”);

Tenn. Code Ann. § 39-13-503(a)(4) (West, Westlaw through 2018 2d Reg.

Sess.) (stating “sexual penetration [that] is accomplished by fraud”

constitutes rape).

The majority should decide the instant case on the language of the

statute, not on policy. We are not in a position to engage in judicial

legislation. Moreover, we are not in a position to determine the wisdom

and propriety of the legislature’s actions on matters within its authority.

Post-Bolsinger, the legislature did not amend section 709.4(1), which

defines sexual abuse in the third degree, to include fraud in the

inducement. Had the legislature intended to criminalize third-degree

sexual abuse by fraud in the inducement, it would have amended section

709.4(1) after we concluded in Bolsinger that fraud in the inducement does

not vitiate consent and therefore fraudulently procuring a sex act does not

constitute sexual abuse in the third degree. See 709 N.W.2d at 564.
 28

As a caveat, I emphasize that I am not saying the defendant did not

commit a wrongful act. See Hough, 607 N.Y.S.2d at 887. Rather, because

the allegations of fact do not contain all the necessary elements to find

Kelso-Christy guilty of sexual abuse, the State could have charged the

defendant with another crime. See id.

Lastly, the majority’s holding stands for the proposition that

misrepresentation as to the whole in the course of seduction to achieve

sexual intercourse constitutes sexual abuse because the

misrepresentation may be material to the victim. Specifically as to fraud

in the inducement, say for example, John meets a woman on the Internet

supposedly named Jane. Jane represents herself on the Internet as a rich

business owner who can advance John’s career if they have sex. In reality,

Jane is really Cindy who is unemployed and likes to have casual sex with

numerous partners. Cindy has been impersonating the identity of Jane to

procure sex. John agrees to have sexual intercourse with Cindy based on

Cindy’s misrepresentations. Based on the majority’s holding, fraud in the

inducement does vitiate John’s consent and permits the State to prosecute

Jane for sexual abuse. Again, I emphasize such a holding is inconsistent

with that of Bolsinger for the reasons I have already stated in my dissent.

Accordingly, I would reverse the conviction.

Appel, J., joins this dissent.