Interesting question. I’d say rape because her consent is based on the fact that she thinks she has given consent to a specific man she has given consent to in the past. The impostor gains consent based on his clothed appearance of being exactly like his twin brother and making the misrepresentation of being the twin brother, a misrepresentation that the woman reasonably believes to be true. I do see room for argument though.
This is an interesting question, and an example of why I love this message board.
ruadh’s description of English common law is how I think it should be. It would be really challenging to enforce misrepresenting your characteristics (and where would you draw the line - if a woman misrepresented her looks with make-up would that be rape if she seduced a man?). Ultimately it seems reasonable to me that people would factor these risks into their lives: is the sleazy guy who just said he was a millionaire being honest?
To me misrepresenting yourself through intentional identify theft crosses the line. It is difficult to express in words why my “sense of justice” makes me feel this way, but in the identify theft case it seems to me that consent has been given, just not to you. In the characteristics case consent has been given to you, even if you are a liar.
Everything I’ve read indicates that consent to sexual intercourse is valid even if that consent is procured by fraud. She knew the act she was consenting to, knew that the person standing before her would be performing those acts, and that’s all the law requires.
Now, it’s possible he could be charged with something else, like simple assault or “offensive contact” or some such, just not sexual assault.
That’s a very fine line and I’m not sure I’d agree. Take the following two scenarios.
You pick up a girl and make out you’re a movie director who just happens to be casting his new blockbuster. You don’t mention your name but the girl is so starstruck she ends up in the sack with you.
Now, wind back. You pick up the girl and tell her you’re Ridley Scott and you’re casting your new blockbuster. The girl is so starstruck she ends up in the sack with you.
To me there is no essential difference between these scenarios. In each case you’re obtaining sex by deception. That makes you a sleazebag but not a criminal. Or if it does make you a criminal surely it has to be in both cases rather than one.
Bit of a hijack, but I’m a little embarrassed that the guy in this story was a police officer in the town in which I grew up and my parents still live. (On the bright side, he was only a probationary officer, so he didn’t make it all of the way through the process.)
And the last article from the local paper (the New Haven Register) is here.
I don’t see how that can be rape, since all John has done is have sex with a woman who, to the best of his knowledge, wanted to have sex with him.
In Ireland I met a pair of French twins who had been separated at birth (let’s call them Jean and Jacques): the parents had initiated the divorce during the pregnancy and the judge felt salomonic, something they apparently like in the case of twins, I know others. They grew up in different regions and social classes. They were part of a group sent there by the Social Services of the town Jean had grown up in; most of the rest of the group were semi-street children. One of the things many of them were curious about was the professions of my group’s parents: lawyers, accountants, HR managers, teachers… as most of them had only one parent and that parent had a police record as thick as the phone book.
The twins were very nervous around each other until the BFF of one of them thought of getting them together over the weekend and making them practice at passing for each other. We saw neither hide nor hair of any of the three of them all over the weekend.
On Monday, they both wore Jean’s boots, blue jeans, Jacques’ shirts, sunglasses, no watch, no medals. Jacques was in the class that had the best English skills, Jean on the worst. The teachers kept saying “this isn’t MY twin!” and sending them to the other class.
It didn’t end until one of them tried to kiss Jean’s girlfriend. She stepped back saying “no way! Take those glasses off or you’ll both eat them!”
Jean had blue eyes, Jacques green. The chains from which their medals hung were of different length. They had different accents both in French and in English, but evidently nothing that couldn’t be solved by some intensive training. There must have been other physical differences but they would have required some very close-up inspection.
In Virginia it’s almost certainly not rape. It would be prosecutable as a Class 1 misdemeanor called “Sexual battery,” which is completed, inter alia, if a person has sexual contact with another by ruse.
This sort of case may be covered in a book called The Law’s Strangest Cases. The chapter is called ‘A Question of Entry’ and the case is Crown v Collins, Colchester 1971. Convicted, but overturned on appeal in 1972. Basically, if the woman assumes that the person is who she thinks he is, rather than who he actually is, and he doesn’t present himself as someone else, then he’s safe.
Quoting sufficient to detail may violate UK copyright, so I won’t.
I’m sure legal Dopers (AK84?) will weigh in.
Have you met his brother? I’m sure a quick “Hey, can I take a look at your johnson?” should be enough to put this issue to rest. 
That’s what I was thinking. I could lie about my characteristics… which would be jerky but not criminal. But saying I’m someone else totally, that’s another. (I almost feel an metaphysical “essence” and “existence” argument coming on… oh, wait. It was a sneeze 
)
Likewise, what if the situation were reversed, and you had female twins? Wouldn’t they be guilty of sexual assault?
Not sure if that will put things to rest. In order to be completely accurate she may not want things to be at rest.
Studies have shown correlation between things like weight during puberty and penis size. I think it is possible for twins to have different sizes. I’d expect to find them similar in size if they had fairly similar diets and lifestyles. From my expert opinion watching porn, the gay twins I’ve seen have not been notably different. My studies aren’t that in depth though I find sex scenes that include 2 family members kinda off putting even if they aren’t having sex with each other.
What if you are the twin left out and the woman is your wife? And what if your wife is almost blind? Then would it be rape?
If it’s rape, then what makes the difference – the marriage? her inability to tell you apart because she can’t see you as well? the fact that it was happening to you and your wife?
What if it’s not your twin brother, but just your brother?
What about a half-brother or a cousin?
At what point will she have the potential for feeling violated – with the identical twin brother possibly?
If the law allows for this to happen to any woman and go unpunished, the law is wrong. She chooses to take one man as her lover. That man is more than a body. He is a complex mental and emotional personality. It is to him that she gives herself – so she believes. This person who enters her is a rapist in disguise.
I don’t see it going unpunished. The question is what to charge the twin with; rape, sexual battery, or something else?
At some point, though, doesn’t this lead to infantilizing women? Basically, the law saying, “We realize that even though you knowingly consented to sex, you didn’t really know what you were doing. We know better than you, so don’t worry, we got ya covered.”?
Unlike what we tend to think of as traditional, forcible “rape”, in this situation there’s an element of simply making a bad decision, without any element of force or intoxication or anything along those lines. At what point does the State come in and say that the intelligent, knowing decision to have sex is no longer yours?
Morally yes, legally, probably not. But then, morally speaking if that was her reason then she’s also a prostitute or close to it. . .
But it wasn’t “knowing.” She was deceived, and thus was mistaken as to the identity of her sexual partner. Had she known the whole story, she would not have agreed to it.
Um, no. :rolleyes:
But…if a female tells me (a male) that she is 19, but it turns out she is 17…