A woman in the UK named Gayle Newland is on trial for 5 counts of sexual assault. Apparently she tricked a friend into having sex with her by pretending to be a man. She insisted that the complainant wear a blindfold during their sexual encounters, and used a prosthetic penis. The sex was consensual.
So the question is: if the person you’re doing is not the person you think he - or she - is, is it sexual assault?
Legally, I don’t know. Philosophically, though, yes it is. It’s deception.
Yes, it’s rape. If you obtain consent with a deception about something fundamental (like who you are, or what gender you are) that’s rape in any jurisdiction that I know of. Deception about something less fundamental (“If you have sex with me, I’ll get you tickets for that concert you want to go to”) may not be rape.
It seems obviously morally wrong. Whether it is defined as a crime, and what we choose to call that crime, is a policy choice.
Do you have a cite for that?
Sorry to nitpick, but you’re asking two different questions.
In the subject you ask “Rape or not rape?”, but in the actual post you ask “is it sexual assault?”
In the UK (where the offence was committed) there is a significant distinction, which is why Ms Newland has been accused of five counts of sexual assault, but no counts of rape. Per the Sexual Offences Act 2003, rape is quite specifically defined"
““A person (A) commits an offence if—
(a)he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b)B does not consent to the penetration, and
(c)A does not reasonably believe that B consents.””
Ms Newland, lacking a penis, cannot be guilty of rape in England.
Here is a cite for the relevant law in the UK:
76 Conclusive presumptions about consent
**
(1) If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2)** existed, it is to be conclusively presumed—
(a) that the complainant did not consent to the relevant act, and
(b) that the defendant did not believe that the complainant consented to the relevant act.
(2) The circumstances are that—
(a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;
(b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.
So a woman who makes a man perform a sex act oh her at gunpoint isn’t commiting rape? Wow. How is this law legal in the UK? Is there no equal protection by sex or gender?
They use different terminology, but rape and sexual assault by penetration (which would apply to a female perpetrator) have the same penalty.
Cite.
Thank you Camille. Ignorance fought.
In England, “rape” involves sexual penetration with a penis. Both men and women can be raped (and so they are equally protected), but only men can commit the offence. The max. penalty is life imprisonment.
The separate offence of “assault by penetration” involves sexual penetration with a body part “or anything else”. Both men and women can be raped, and either can commit the offence. The max. penalty is again life imprisonment.
Non-consensual sexual not involving penetration is the lesser offence of “sexual assault”. Again, men and women can both be victims, or perpetrators. Maximum penalty 6 months on summary conviction, 10 years on conviction on indictment.
Camille has posted a cite for England and Wales. But in fact I think the English legislation codifies a common law rule that consent is vitiated when it is obtained by fraud. In fact, the wording of the 2003 legislation basically reflects what was said in the 1888 case of R -v- Clarence (1888) 22 QBD 23, 44:
“. . . the only sorts of fraud which so far destroy the effect of a woman’s consent as to convert a connection consented to in fact into a rape are frauds as to the nature of the act itself, or as to the identity of the person who does the act. Consent in such cases does not exist at all because the act consented to is not the act done.”
I haven’t done the research, but I think we’ll find this case explicitly approved in other common law jurisdictions, or cases in those jurisdictions enunciating a similar rule, or legislation covering the point.
I think it’s legally rape by deception. Morally I definitely consider it rape.
See this is why the question so far is a bit vague. Is the OP asking whether it’s rape or sexual assault, and is that from a US perspective, or the perspective of the country where the case is happening.
Because if the question is simply “Is it rape”, then legally in the UK it most certainly isn’t. Ethically, that’s a whole different kettle of fish, and serves as a good example of why the crime Sexual Assault is used as a broad term to ensure people can be tried for heinous acts without getting bogged down on definitions.
This case is quite hard. And hard cases make bad law. The actions are certainly reprehensible. But are they illegal?
Hmmm. Certainly there was fraud and deception involved. But common law and statute, and precedent based upon interpretation of the same, seems to suggest that deception has to be as to the very nature of the act itself and towards the specific identity, Courts tend to limit scope of crimes generally.
So while she was certainly misled, did this go to the heart of the issue? In cases like this, Courts tend to look into your motivations for entering the transactions rather then the “but for” test.
Basically, being misled as to fundamental identity or nature of the act=no consent, misled as to Attributes= consent not vitiated. R v Richardson [1998] 2 Cr App R 200
(On the other hand R v Tabassum [2000] 2 Cr App R 328, accused pretending to be a medical practitioner from a breast cancer society, was deemed to have assaulted women he “examined for cancer”, they would not have consented had they known who he was)
I think the deception as to identity will not affect consent, the accused made a false persona true, but she did agree to sex with that persona. It would be different if she had been impersonating someone real she knew or heard about.
A better chance would be nature of the act.
R v Williams [1923] 1 KB 340, accused told a rather naive teenager that he was trying to improve her voice; no consent.
On the other hand in R v Dica [2004] EWCA Crim 1103 failure to tell the complainants about an STD was held not to vitiate consent.
So to answer the OP, no fucking clue.
I feel like this hypothetical was on a law school exam.
Thank you. I don’t know the law of UK. So consider ignorance fought.
In the US, if there was a law that applied to certain persons - say “it’s theft, but only if Jewish people do it” it might fun afoul of the equal protection clause of the US Constitution. I know the UK doesn’t have a constitution - or rather, it has an unwritten constitution - but is there nothing in the UK that’s the equivalent of US equal protection clause?
In Israel, there was a man who was convicted of rape by deception for pretending to be Jewish when he wasn’t. I don’t think that would be a crime in the US. So far as I know, the US doesn’t have a rape by deception law. If anyone knows, would that be a crime in the UK? Should it be a crime?
The issue here is just that our legal system is very old. As such, some concepts have got hundreds of years of case law defining precisely what they are, so it becomes easier to add a new crime (sexual assault) rather than try to re-write everything from scratch and then have to establish new case law and precedent.
So we end up with a broad range of sexual offences, many of which carry exactly the same penalty as the one you’d logically think would apply but doesn’t.
By the way, with regards to this particular case there is some degree of doubt over the allegations. Certainly the victim would have had to be particularly easily led to have not noticed anything at all for the 4 years they had a physical relationship.
Deception about the nature of the act tends involve literally that; the perpetrator says he’s a doctor, and that they won’t be having sex but performing a diagnostic procedure involving his penis.
Deception about identity tends to center on the specific identity of the perpetrator (pretending to be the victim’s husband, boyfriend, etc.) rather than identifying details of the perpetrator. So the Israeli case is outside the normal course of things in Anglo-American law.