LOVE AND THE LAW

Seduction is not Rape, ...... is it ?

The case of Mary Kay and Vili Fualaau, where 34-year-old teacher got sexually involved with a 13-year-old student of hers and had a child from him, rocked the US in late 90s. But with the news of Mary and Vili’s marriage after Mary’s release from prison coming in, the controversy is far from over. Vili refuses to call himself a ‘victim’ so by implication Mary is no victimizer. So, was the law right in punishing Mary? Is ‘seduction’ actually ‘rape’? HemRaj Singh examines the issue.

Tuesday, July 12, 2005: While Persis Williams (45) heard Judge Laxmi Rao hand her down five years of rigorous imprisonment together with a fine of Rs. 2000/- for kidnapping a minor, having ‘illicit intercourse’ with him and using him for ‘immoral purposes’, little did she know that she was a player in what was virtually an Indian rerun of an American tale, which rocked the US in 1996 and is yet to die down. Though in Persis’ case there has been no confession of love like in the American story but two very significant facts are common in both the cases. One, that the boys involved were not exactly ‘forced’ to have an intercourse, and, two, they actually enjoyed the indulgence and were no less the initiators than the punished ‘seductresses’, if not more. In the Indian case, it was this 16-year-old boy who called up a phone-sex service in May 2000 and got through to one Rachna, whose actual name was Persis Williams. Talking led the way and two finally met in November 2000. The boy went missing on November 2, 2000 and a report was filed with the police. No breakthrough came until the boy e-mailed his cousins on November 7, 2000 informing them that he was fine. The mail was traced to a cyber café and the police managed to pick the boy up on November 18. Notably, the boy’s testimony reportedly supplied the firmest base for Persis’ conviction. It must be noted here that the consent of a minor to sexual intercourse is immaterial in law, so a minor’s testimony affirming the intercourse is sufficient to have the accused convicted and sentenced. Now this virtually means that if a young boy of 16 worked his charms over a woman of, say, 21 or 25 or 48, and got her into the act, it would be the woman who would be labeled as ‘seductress’ and punished irrespective of the boy’s adventurous attempts at wooing and his active participation.

Now, let’s have a look at the famous American case I just referred to. Mary Kay, a married woman of 34, had a 13-year old student named Vili Fualaau, who was her favourite. Her fondness for the boy grew and grew, partly because of her husband’s indifference and partly because of her need to be comforted when her matrimonial troubles pushed her too much. On one such comforting sessions Vili kissed a weeping Mary, who returned his kiss through her tears. Emboldened by the response, Vili went further and they were soon embracing, touching and kissing deeply and passionately. It was inside a car and the police found it suspiciously parked so they interrupted and enquired. They took the couple to the police station but when Vili’s mother vouched for Mary and said
that if her son was with her he was safe, the police let them go. A few days later they had sex – she was 34, he 13.

Mary got pregnant and knew it was Fualaau’s and not her husband’s. She shared the secret with a friend (Michele Rheinhart-Jarvis) and also told that she wanted to keep her husband thinking that it was his child but it could not be hidden once the baby was born, for it was to have curly hair and dark skin like his or her 13-year-old father. Mary’s husband got the wind of it much earlier and on February 25, 1997, her husband’s cousin called Child Protective Services and reported the matter anonymously. A detective questioned Vili. Vili admitted that they had had sex. Mary was arrested for statutory rape. In May 1997 Mary gave birth to a baby girl. She was named Audrey Lokelani Fualaau (‘Lokelani’ means ‘rose of heaven’).

Judge Linda Lau heard the case but before the sentencing Mary addressed the court thus: “Your honor, I did something that I had no right to do, morally or legally. It was wrong and I am sorry. I give you my word that it will not happen again. Please help me. Help us all.” She was apparently fighting her tears. The plea bargain was accepted on the condition that Mary Kay gave up custody of Audrey to Vili’s mother until her release, and that she was never again to have any contact with Vili. Mary agreed. She was, therefore, released in January 1998 after serving three months behind the bars.

However, within a month she was back before the same judge, on February 3, 1998, Seattle police officers found a grey Volkswagen Fox Sedan in which two people appeared to be engaged in sex. They were Mary Kay and Vili Fualaau. The plea bargain was vacated and Mary Kay was sentenced to a seven and a half years in prison, the maximum for child rape. With Mary’s release approaching, the news, now, is that she and Vili are going to tie the knot.

During the entire legal proceedings Vili maintained that he was not a ‘victim’. Even Vili’s mother despite her general disapproval of her son’s relationship with Mary, refuses to accept the idea that her son has been a ‘victim’, and she has come to say it loud enough. If we accept this position – and we have no reason not to – it amounts to a crime without a victim, which turns out to mean that Mary’s crime, at best, was an offence not against an individual but against the general sense of moral uprightness. Now if we consider the fact that she was punished in accordance with law, the concerned law appears to be capable of being morally judgmental in certain situations while its object was to prevent sexual abuse. Laws might be moral and may also serve a moral purpose in addition to its legal or social objective, but generally speaking, their primary functions is to protect and promote and not to moralize.

Moreover, Mary was punished because the child rape law in the State of Washington is gender neutral. If she and Vili were in the State of California, Mary could have gotten off unpunished, for California’s statutory rape law defines the crime as “an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years.” The definition came under challenge on grounds of gender discrimination in Michael M. v. Sonoma Superior Court, 450 U.S. 464 (1981). The case reached the US Supreme Court. The Court rejecting the charge of gender discrimination observed that “one of the purposes” of the law was to “protect women from sexual intercourse and pregnancy at an age when the physical, emotional, and psychological consequences are particularly severe” and since men do not get pregnant the Court held that the “gender classification” was not “invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances.” Owing to the biological distinction, a man might have sexual intercourse with a minor girl without her consent but it would be difficult for a woman to do so with a minor boy, for the female does not have to be aroused in order to engage in sexual intercourse but the male has to. Therefore, where a sexual intercourse is in question, the consent of a male can be safely presumed unless the contrary is proved. The only question in case of a minor male is whether ‘seduction’ can be termed as ‘child rape’. Should there be no distinction in law between a female ‘seducing’ a minor boy and a male ‘ravaging’ a minor girl violently, against her will? Howsoever immoral seduction be, it is not violent in nature in the way rape is. Calling it ‘rape’ even if prefixed with ‘statutory’ is not an accurate description of the offence. Doubtlessly, a minor exposed to sex at the hands of an older woman at an early age may carry psychological scars undetectable even to the minor himself. He might just turn into a child abuser himself for a simple reason that his in-built value system does not recognize it as a reprehensible act. He might at best take it for a socially unacceptable act to be done in private. Now, this kind of man is a beast in innocuous human skin, which makes him doubly lethal. An act with such devastating potential must be checked hard but at the same time the law cannot afford to forget the fact that the women abusers do not intend to have any such effect, and most of them have no idea whatsoever of the potential damage. They do it for pleasure, and pleasure alone, and revel in the pleasure that they derive and give. There is no force or violence used. They don’t intend to harm nor do they have any idea of the possible harm. To them the act is, at most, socially unacceptable. The question, therefore, is: Can the law hold a person with no guilty intention and no knowledge of the harmful social consequences of his act criminally liable for the act? In exceptional circumstance, yes. And in cases of sexual abuse of male minors by women offenders, the damage and the offence are exceptional enough. But it is still not ‘rape’, for lack of violence. At this point I am perfectly willing to concede that rape hits one person while child abuse may trigger a chain of abuse of innocent little children. But then, the idea that a sexually abused male child turns into a compulsive abuser is largely inconclusive, for it is just a possibility and not certainty. Therefore, the female abusers must be punished but where no psychological damage is established – like in Vili’s case – the courts, while sentencing, must consider all the facts and see things in real-life perspective. And, of course, the courts must be allowed necessary discretion. After all, we don’t want the rerun of what might turn out to be the climax of Mary-Vili case – the so-called victimizer walking out of prison and marrying the so-called victim to live happily ever after with their kids.