Another attempt to define rape...

Over the “transgendered etc etc etc.” thread, I made the attempt to postulate that the victim, in other circumstances, may have been guilty of rape.

I am not here to debate the death of M. Arjuno.

I am not here to debate Hate Crime legislation.

My belief- If a homosexual man, posing as a woman (for whatever reason) makes an attempt to engage another male (heterosexual) without revealing the fact of his bio-gender, he may be guilty of rape.

Hypothosis- I dress up in drag as a convincing woman. I attend a gay bar, and pick up on a lesbian. Half way through the sex act, I reveal myself as a male. I am willing to bet that I would be charged with rape.

Hence, the same situation, in this case, should be true.

A male, under false pretenses, attempted to have sex with another male, knowing that the male would in NO CIRCUMSTANCES would have been interested in the first male. This is more than false representation.


You’d certainly be a class-A jerk. But rape…hmmm…no I don’t think you’d get a rape charge, but I betcha you WOULD get some legal charge, probably something along the line of “sexual misconduct”, which I believe in most states is a misdemeanor. I mean my goodness, people trick each other into having sex every damn day in the world. It oughtn’t happen, but if we locked everyone away who did this, the jails would be even more full than they are because of the “war on drugs” (but that is for a different post).

Consider…if a married man meets a girl and tells her he’s single in order to have sex with her, under your logic she could sue him for rape arguing she never would have consented to sex had she known he was married.

These dudes in the Arjuno case, they needed to check under the hood a bit more closely.

If it’s consensual, it’s not rape, no matter what’s being lied about. If a teenage girl lies about her age to a forty year old man, is she “raping” him? Please explain to me why a lie about gender is any different from a lie about anthing else. That bondage chick on Joe Millionaire probably wouldn’t have given him a BJ if she had known he was broke. Is he a “rapist.”

Cite, please, that this kind of deception is illegal anywhere?

:rolleyes: So this is what I’ve been missing while I’ve been watching CSI. I can’t believe that my mother watched that show. :dubious:

First off, according to state law in most states, our OP would be in violation simply by dressing as a woman.

As for the rest, I was just giving my opinion (when I say things like “I betcha”, be advised that an opinion is coming), so let’s keep our citation demands to ourselves shall we? Is there a law that specifically notes “If you dress up like a woman and trick a lesbian into cunnilingus, you get 90 days in jail”, of course not. But “sexual misconduct” is a vague enough charge in most jurisdictions that if the lesbian in question raises enough of a stink, and the local DA is having a slow day, I BETCHA he/she could make the charge stick. Who ever said the law was handed out in a reliable way?

Categorically untrue. Name one state laws which bans crossdressing.

How about the guy who was charged with rape for convincing a woman he was a fortune teller and she had to have sex with him or she’d die? (I will search for the thread shortly).

Thereis an implied death threat here, Splanky, and the sex was coercive, not consensual. It’s not an applicable case.

I looked this up, and it appears that you are right, for the most part it is city ordinances that ban cross-dressing, not state law. I see that some cities (Houston, Boston, San Diego) have repealed these ordinances within the last 20 years, but I suspect that such ordinances remain in many other locales. Do you have any reason to doubt this?

Nontheless, I do emphasise you were right about the state laws, and I shouldn’t have been so flippant. :frowning:

Still, I think there’s a good chance our “lesbian bandit” could wind himself with some jailtime, which was my original point.

I’m curious as to your reply…after which I will accept that we may disagree on some points, and hope that we can return to the OP…regarding what qualifies as rape in this case.:dubious:

Hmmmm. There seems to be some ambiguity. If I knew of a GLBT message board, it would be interesting to get some feedback on the issue.

Also, yes, in fact if a teenager lied to a 40 year old man, and he had sex with her, the state could charge him with statutory rape, even if the parents of the girl in question had no problem with it.

Here is the thread. You can call it coercive, I wouldn’t. There were no threats (he didn’t say he’d kill her, simply that he was a psychic and that’s what he “saw”. Of course she was entitled to walk away- he wasn’t forcing anything upon her. I don’t feel like rehashing this conversation because it’s come up at least twice.

I also don’t see how the Arjuo case can be called rape. He was having acts performed on him- it obviously was consensual.

Though I feel that if there isn’t a law against this type of deception, there should be one.

Trying to avoid the Arjuo case, but it is unclear what sex acts may have occured in the past. At least by what I’ve read.

And I think Splanky may have hit it on the head. If there isn’t a law, there aught to be.

mmh…I’ll chime in with my own experience.
I’m a female to male transsexual attracted to guys, the vast majority of my sexual partners have been guys I picked out in a nearby gay cruising area; I performed oral sex on them. In a few cases they knew after or halfway or even before that I wasn’t biologically male but trans.
Their reactions have been:
-if they knew before hand: a no or a I don’t care.
-halfway: idem
-after: I don’t care or can we meet again

Frankly I have yet to meet one saying I have raped him or being violent/insulting me/trying to beat me up/kill me.

The Law of Rape and Deception

Fraud in the inducement does not (usually) provide the basis for criminal liability for sexual assault. For example, A fraudulently tells B that he loves her to induce her to engage in sex. They have sex. Not a crime in the vast majority of jurisdictions.

Fraud in the factum – i.e., that they were having sex at all – does provide the basis for criminal liability for sexual assault. A famous “fraud in the factum” case is Boro v. Superior Court. In that case, the victim got a phone call from a “Dr. Stevens” who convinced her that she had a medical condition that would either require expensive and painful surgery (costing $9000) or an innovative medical procedure: having sex with an anonymous donor who had been injected with the serum that could cure the disease (a bargain at only $4500!). The victim got together a $1000 down payment and then let the “anonymous donor” – the defendant – have sex with her, and then gave him the money to remit to “Dr. Stevens,” who, of course, was also the defendant.

The defendant was charged with rape “accomplished by means of force or fear of immediate bodily injury” and with rape “where a person is at the time unconscious of the nature of the act and this is known to the accused.” The jury convicted him of the second count. Because the rape statute didn’t provide for criminal liability for any kind of rape accomplished by fraud, the appellate court vacated the defendant’s conviction. The state legislature promptly revised the rape statute to criminalize sexual activity where consent was procured by fraud in the factum, where the deception induces fear of physical injury or death to the person or any relative of the person. The legislature’s revision required that the fraud be one that the reasonable person be susceptible – so the funny thing was that Boro wouldn’t have been convicted even under the new statute.

There’s a limited exception the “criminal liabilty for rape only for fraud in the factum but not for fraud in the inducement” rule: if the defendant procures consent by impersonating the victim’s husband, that’s treated as fraud in the factum. Most state rape statutes simply provide that this is a separate “rape” crime.

Since in the transgendered situation, the “victim” knows that he is going to have sex with the transgendered individual, it’s fraud in the inducement rather than fraud in the factum. Hence, under many state statutes, it’s not rape. It’s not a crime.

I think that, ultimately, rape laws will move in the direction of criminalizing all sex that is not affirmatively consensual. Some day this may be rape, but it’s not today.

Of course, it is sodomy, or at least attempted sodomy, which is itself a crime in a number of states – though this may not be true after the Supreme Court decides Lawrence v. Texas, a challenge to Texas’s law criminalizing homosexual sodomy. I think it’s likely that the Court will overrule Bowers and declare that criminalizing sodomy violates the Due Process clause. I think the case will be decided on due process grounds rather than equal protection grounds (striking down the law because criminalizing only homosexual and not heterosexual sodomy violates the Equal protection clause). That way, the Court can strike down the law without opening the door to a challenge to the state prohibitions of homosexual marriage and the like.

The difference being that the men you are picking up on are looking for a man, and that you, being FTM Trans, are “part of the club” in some respects.

Most hetero men are a little more gunshy than that.

yeah that I concede, I guess I was more thinking in terms of that double standard, that when you’re a transwoman there is a very real and high risk of violence when you date het guys not in the known, but I can date pretty much anyone of any gender and orientation wihout fear of physical violence (usually) or being accused to have raped the other person.

I’m trying to see what was my point…that if a law was to be made against this kind of “false representation during sex”, it would be in some aspects “biased”, since it’s probably transwomen attracted to guys who would be the most penalized.
I guess it would better to educate people about trans stuff and teaching some het guys not to go balistic at the thought/act of a gay guy or a transwoman hitting on them, or a transwoman having sex with them.
But that’s kinda idealistic, though I think that was the point I was trying to make in my head. Sorry if I’m not being really clear.

No problem.

And all the education in the world isn’t going to help some people.

And the law, if followed, wouldn’t have any sort of bias. Example… you are FTM Trans. If you still look/present as a female, and want to date me (:)), just tell me ahead of time you’re on T and going through transition to male. Conversely, if you’re a man, transitioning to woman, just make that aware when you’re dealing with the people you’re dealing with.

Seems pretty simple, at least on the surface, doesn’t it?

lol yes, the sad and ironic part is that it is really that simple in theory.

Responding to the OP, the homosexual man who misrepresents himself is not guilty of rape. He’s guilty of misrepresenting himself, period.