An identical twin seduces his brother's girl. Can he be charged with rape?

[BigT]

@Guinastasia

Um, no. :rolleyes:

This is GQ. You need a cite, or at least an explanation. The post you responded to had one. Yours didn’t. This implies that you don’t actually have a reason. If your disagreement was so obvious that you don’t need to explain it, what is the point of disagreeing?

I’m really, really getting tired of this. We’re supposed to be intelligent people here on the Dope, trying to eradicate ignorance. Yet so many people fail to even try to communicate. GQ is not a polling place, asking for an opinion. It’s a place for ascertaining facts.

[Otara]

Google shows:

http://www.cbsnews.com/stories/2008/02/29/politics/uwire/main3894875.shtml

So in Massachusett’s, Tennessee and California at least its going to be considered rape, and it suggests others will too. It looks like in practise the deception will have to be significant, ie ‘Im your twin husband’ rather than the ‘Im a movie director’ shtick.

Otara

[Gfactor]

Most jurisdictions that have considered it have held that it’s not criminal unless the defendant uses force:

See, e.g., Suliveres v. Commonwealth, 449 Mass. 112, 865 NE2d 1086 (Mass 2007) (defendant tricked twin brother’s girlfriend into having sex with him); Commonwealth v. Culbreath, 36 Va. Cir. 188, 1995 WL 1055824 (VaCirCt 1995) (defendant impersonated another in order to obtain consent to sexual penetration); People v. Hough, 159 Misc2d 997, 607 N.Y.S.2d 884 (NYDistCt 1994) (defendant tricked twin brother’s girlfriend into having sex with him); Commonwealth v. Goldenberg, 338 Mass. 377, 155 NE2d 187 (Mass 1959), cert. denied, Goldenberg v. Massachusetts, 359 US 1001, 79 S. Ct. 1143, 3 L. Ed. 2d 1032 (1959) (insufficient evidence of force to prove that intercourse was without the consent of the woman); Commonwealth v. Duchnicz, 42 PaCC 651 (1914), rev’d on other grounds, 59 PaSuperCt 527 (1915) (defendant procured consent to penetration by fraudulently impersonating woman’s husband); Lewis v. State, 30 Ala 54 (1857) (defendant procured consent to penetration by fraudulently impersonating woman’s husband).

State v. Klaudt, 2009 SD 71, 2009 S.D. LEXIS 139, fn. 11 (S.D. 2009) (distinguishing this line of cases becasue Klaudt used coercion).

Some cases have suggested that it is sexual abuse, and some jurisdictions include obtaining consent by fraud within the definition of rape or some other sex crime.

Here is a discussion from a law review article:

One of the most notorious recorded sexual scams is the case of Raymond Mitchell, dubbed the “Fantasy Man” by the press. n135 Mitchell telephoned women, pretended to be their fiancees or boyfriends, explained that he had had a fantasy about having sex with a blindfolded woman, and persuaded them to leave their doors unlocked and to wait in bed blindfolded. n136 He also instructed his victims not to touch him during sex. n137 Mitchell was convicted under a Tennessee statute specifically criminalizing rape by fraud–the only one of its kind in the United States. n138 Although arguing that the women consented to the sexual intercourse, the court held that consent is ineffective if obtained by deception. n139 Presently, Mitchell is arguing on appeal that the statute is too vague as it does not specifically set forth the types of fraud which would lead to conviction. n140 [*68]

Similarly, in People v. Hough, n141 the defendant impersonated his twin brother in order to have sexual intercourse with the brother’s girlfriend. The court phrased the question in the case as “whether a female actually consents to sexual intercourse with a male who procures the female’s consent by impersonating the female’s boyfriend.” n142 The court found New York’s nonconsent statute required either forcible compulsion or incapacity to consent and did not include fraud:

In general, in the absence of a statute, where a woman is capable of consenting and does consent to sexual intercourse, a man is not guilty of rape even though he obtained the consent through fraud or surprise. . . . The reason is that in the traditional definition of the crime of rape, the sexual intercourse must have been achieved “by force”, or “forcibly”.

The court also pointed out that New York’s statute, unlike other jurisdictions’, did not contain a husband impersonation provision. It concluded that the legislature had intentionally excluded cases of fraud or impersonation and dismissed the information.

The case of United States v. Booker provides a third variation on the impersonation theme. Booker had sexual intercourse with a sleeping or unconscious woman shortly after she had consensual intercourse with another man, arguably impersonating the woman’s voluntary lover. He was tried for rape under military law.The court struggled with whether his action constituted rape by fraud and whether such fraud was in the factum or in the inducement. The court ultimately held that fraud as to the identity of a sexual partner constitutes fraud in the factum which vitiates consent because: “The better view is that the ‘factum’ involves both the nature of the act and some knowledge of the identity of the participant.” Thus, Booker was convicted of rape.

Patricial Falk, “Rape by Fraud and Rape by Coercion,” 64 Brooklyn L. Rev. 39 (1998).

Military courts, like the court in Booker, tend to reject the theory that agreement to the act is sufficient consent when the victim is deceived about the identity of her partner:

Article 120 defines rape as “an act of sexual intercourse, by force and without consent.” Paragraph 45c(1)(b), Part IV, Manual, supra, provides that, “if there is actual consent, although obtained by fraud, the act is not rape.” The distinction involved in this case is between fraud in the inducement and fraud in the factum. The former applies to situations where consent is obtained by misrepresentations (“No, I’m not married.”; “I’ll respect you in the morning.”); the latter applies to misrepresentations about the nature of the act itself. See United States v. Booker, 25 M.J. 114, 116 (CMA 1987).

Before this Court appellant asserts that the military judge incorrectly applied the concept of fraud in the factum when he denied the motion for a finding of not guilty. Appellant relies on People v. Hough, 159 Misc. 2d 997, 607 N.Y.S.2d 884 (Dist. Ct., Nassau County, 1994), for the proposition that sexual intercourse is not rape if the woman consents to having intercourse, even if the man fraudulently leads her to believe that he is someone else. The Government relies on this Court’s opinions in United States v. Traylor, 40 M.J. 248 (CMA 1994), and United States v. Booker, supra, for the proposition that PFC B did not consent to intercourse with appellant and, thus, her purported consent was invalid because it was obtained by fraud in the [**6] factum.

In Booker, then-Judge Cox recognized that “there are differences of opinion as to whether ‘consent’ relates only to the act or also to the actor.” 25 M.J. at 116. Writing the lead opinion in a plurality decision, Judge Cox opined that actual consent means that “a woman must be agreeable to the penetration of her body by a particular 'membrum virile,'” i.e., a particular male sex organ. Id. at n.2, citing Stedman’s Medical Dictionary 1049 (4th Unabridged Lawyers ed. 1978 reprint). Although the two concurring judges in Booker found it unnecessary to decide whether Judge Cox’s view was correct, in Traylor his view was adopted by a 4-1 majority of this Court. 40 M.J. at 249.

Appellant argues that Traylor is distinguishable from this case because, in Traylor, the victim protested as soon as she realized that the second male had penetrated her. We reject appellant’s argument. In Traylor we held that the victim’s retroactive consent or lack thereof “has no effect on the accused’s guilt” because the offense was completed at the moment of penetration. Id., citing United States v. Robertson, 33 C.M.R. 828, 835 (AFBR 1963).

Applying the principles articulated in Traylor and Booker, we hold that there was sufficient evidence of record to show that PFC B did not consent to being penetrated by appellant. Accordingly, we hold that the military judge did not err by denying the motion for a finding of not guilty. To the extent that Hough is inconsistent with this opinion or our earlier opinions, we decline to follow it.

United States v. Hughes, 48 M.J. 214; 1998 CAAF LEXIS 51 (C.A.A.F. 1998)

The *Traylor *case, btw, involved a very different fact pattern:

Specialist G was awakened by Specialist Sly, who asked her to meet him outside. They boarded a vacant bus parked nearby, talked for 5-10 minutes in the rear of the bus, and [*249] then began engaging in sexual intercourse. After a few minutes, they changed positions so that Specialist G had her knees on the edge of a seat and her head toward the side of the bus, with Specialist Sly behind her engaging in vaginal intercourse from the rear.

Specialist G testified that Specialist Sly “slipped out but immediately reentered” two-three times. She testified that “he slipped out one more time and I thought it was him reentering but something felt different this time.” She turned her head and saw that appellant had entered her. She testified that she “was shocked . . . mad, upset, and I just – all I said was, ‘Hey, Traylor, what’s going on?’” She testified that she “tried to pull away a little,” but appellant “pulled me back.”

[ruadh]

@Quartz

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.

(bolding added)

There was a case on this in Ireland a while ago, DPP v C. The victim believed the accused was her boyfriend but he did not actually lead her to believe this. It was held that this could still amount to rape, since her consent was given on the basis that he was another person and therefore it was not real consent. However, depending on the circumstances of the case the accused might be able to argue that he reasonably believed consent had been given - and if he did then he would not be guilty of rape, since rape requires knowledge or recklessness as to lack of consent.

[Red_Barchetta]

@ZipperJJ

I’m dating a twin now and am dying to know as well. But he’s not saying! (actually he says he doesn’t know) I need to find out if size is “nature” or “nuture”. I’ll let the SDMB know if I ever find out…

Maybe you already have? :eek:

[JerseyFrank]

@boytyperanma

Studies have shown correlation between things like weight during puberty and penis size.

Cite? Fat guy during puberty checking in here and wondering what I’m missing…

[JerseyFrank]

duplicate post due to DB errors

[HeyHomie]

@JerseyFrank

Cite? Fat guy during puberty checking in here and wondering what I’m missing…

Agreed. One of my nephews is all kinds of porky and he’s just about to enter puberty. I don’t think he’s due for a huge dong, though.

[Noel_Prosequi]

American law has its own fascinating nuances, and I would not doubt Gfactor’s exegesis of it.

Elsewhere, fraud is commonly a basis for negativing what superficially appeared to be consent, and of course consent is an issue not just in rape cases but in many sexual assault offences, too. Not all fraud counts, however, which is the answer to the concerns expressed above about fraudulently pretending to be rich. But where it does count, some truly odd cases have emerged.

Fraud as to the nature or purpose of the act can negative consent in some jurisdictions. There is a bizarre case called Williams [1923] 1 KB 340 where a teacher pretended that sex was in fact an operation which would improve a singing student’s breathing.

Other cases include those where a fraudulent alternative medical practitioner pretends there is a medical purpose to the penetration. I remember one case I had where the practitioner persuaded his female patient that it was therapeutically beneficial for her to sit on a chair with her feet in a bucket of cold water and with vegetables tied to her wrists, and masturbate. This was a serious WTF? moment for me, but the complainant was young and trusting, so accepted all this was on the up and up. Practitioner was convicted.

I recall another case where a police officer who had some prestige because of his position in a small religious community of which he was a member persuaded young members of the community to become “undercover agents” under his official charge for the purpose of catching pedophiles. He convinced them that they had to undertake various bizarre tasks, and then had them open parcels that had been pre-prepared by him to have needles in them. Once they got needle-stick injuries, he would pretend that they may have needle-borne diseases, and that they could not go to their usual doctor because of the sooper-seekrit nature of the undercover work they were doing. He told them, however, that he could arrange testing through the sooper-seekrit agency he and they were working for. The testing involved having them run about in the bush doing exercises in the nude, then take an intimate swab of themselves while having an orgasm after masturbating. They also had to provide pubic hair samples. He, of course, was present for all this. Amazingly, the complainants bought all this nonsense and went along with it. He, too, was convicted.

Fraud as to the identity of the accused can also negative consent. Some jurisdictions limit fraud as to identity to the inducement of a fraudulent belief that the accused is the complainant’s sexual partner. This limitation prevents prosecution of someone who pretends to be Steven Spielberg to seduce a wannabe starlet.

If the complainant merely makes a mistake about identity that was not induced by the accused, then on the issue of consent it may in some jurisdictions mean that the complainant did not consent. However, a separate issue then emerges. That separate issue is whether the accused had an honest and reasonable but mistaken belief that she was consenting (to him). If he has not induced the mistake as to identity held by her, then in principle the mistake by him (thinking she was consenting) may excuse him.

Gets complicated, doesn’t it?

As always, jurisdiction matters.

The law gets complicated because although the law in most cases is simple enough, there are always unusual cases at the margin that require more than casual examination.

[Guinastasia]

@BigT

This is GQ. You need a cite, or at least an explanation. The post you responded to had one. Yours didn’t. This implies that you don’t actually have a reason. If your disagreement was so obvious that you don’t need to explain it, what is the point of disagreeing?

I’m really, really getting tired of this. We’re supposed to be intelligent people here on the Dope, trying to eradicate ignorance. Yet so many people fail to even try to communicate. GQ is not a polling place, asking for an opinion. It’s a place for ascertaining facts.

Perhaps I should have been more clear – I don’t believe it’s “infantilizing women” to consider a situation like this rape and/or sexual assault. If anything, it’s saying, “Well, if you’re too stupid to know any better, too bad.”