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.