united-kingdom criminal-law sexual-assault rape sexual-offences
If sexual consent is gained by deceit or misapprehension, is the resulting sex legally a rape?
<p>In Arthurian legend, the wizard Merlin magically disguises Uther Pendragon to look like his enemy Gorlois, enabling Uther to sleep with Gorlois' wife Lady Igraine; thus conceiving the child that would grow up to become King Arthur. From a legal perspective, would this act count as rape? (Looking for UK based answers, as the story is based in the UK, but happy to hear from other countries too).</p>
<p>According to the <a href="https://www.met.police.uk/advice/advice-and-information/rsa/rape-and-sexual-assault/what-is-rape-and-sexual-assault" rel="noreferrer">Metropolitan Police</a>,</p>
<blockquote>
<p>The legal definition of rape is when a person intentionally penetrates another's vagina, anus or mouth with a penis, without the other person's consent.</p>
</blockquote>
<p>They link to the &quot;<a href="http://www.consentiseverything.com/" rel="noreferrer">Consent is Everything</a>&quot; site, which states:</p>
<blockquote>
<p>Sexual consent is where a person has the ability and freedom to agree to sexual activity.</p>
</blockquote>
<p>Whilst Igraine freely agrees to sex, she is under the misapprehension that Uther is her husband; would that make her legally incapable of giving informed consent?</p>
<p>In the legend, Uther is deliberately deceiving Igraine; but would the situation be different if there was no deception? One can imagine a situation where two identical twins were separated at birth. Twin A gets married, but whilst he is out of town Twin B happens to meet his wife, and they end up having sex. The wife believed she was sleeping with her husband; Twin B believed it was an innocent one night stand. Since the wife's consent was contingent on a misapprehension, was she unable to freely consent, and thus the act was a rape?</p>

<p><strong>If sexual consent is gained by deceit or misapprehension, is the resulting sex legally a rape?</strong></p>
<p><a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" aria-label="show questions tagged &#39;england-and-wales&#39;" rel="tag" aria-labelledby="england-and-wales-container">england-and-wales</a></p>
<p><strong>YES</strong></p>
<p>The impersonation of Gorlois in this way under today's law would be considered as rape contrary to <a href="https://www.legislation.gov.uk/ukpga/2003/42/section/1?timeline=false" rel="noreferrer">section 1</a> Sexual Offences Act 2003 (<em>with person (A) being Uther Pendragon, and person (B) Lady Igraine</em>):</p>
<blockquote>
<p>(1) A person (A) commits an offence if—</p>
<ul>
<li><p>(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,</p>
</li>
<li><p>(b) <strong>B does not consent</strong> to the penetration, and</p>
</li>
<li><p>(c) A does not reasonably believe that B consents.</p>
</li>
</ul>
<p>(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.</p>
<p>(3) <strong>Sections 75<sup>1</sup> and 76 apply to an offence under this section</strong>.</p>
<p>(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.</p>
</blockquote>
<ul>
<li><strong>Consent</strong> is defined at <a href="https://www.legislation.gov.uk/ukpga/2003/42/section/74?timeline=false" rel="noreferrer">section 74</a> as:</li>
</ul>
<blockquote>
<p>For the purposes of this Part<sup>2</sup>, a person consents if [<em>s</em>]he agrees by choice, and has the freedom and capacity to make that choice.</p>
</blockquote>
<ul>
<li><a href="https://www.legislation.gov.uk/ukpga/2003/42/section/76?timeline=false" rel="noreferrer">section 76</a> provides a <strong>conclusive</strong> presumption that Lady Igraine did not consent and Uther did not reasonably believe that she consented:</li>
</ul>
<blockquote>
<p>(1) If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act [<em>i.e. rape</em>] and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed—</p>
<ul>
<li><p>(a) that the complainant <strong>did not consent</strong> to the relevant act, and</p>
</li>
<li><p>(b) that the defendant <strong>did not believe that the complainant consented</strong> to the relevant act.</p>
</li>
</ul>
<p>(2) The circumstances are that—</p>
<ul>
<li><p>(a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;</p>
</li>
<li><p>(b) <strong>the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.</strong></p>
</li>
</ul>
</blockquote>
<hr />
<p><sub><sup>1</sup><a href="https://www.legislation.gov.uk/ukpga/2003/42/section/75?timeline=false" rel="noreferrer">section 75</a> refers to the use / threat of violence, incapacitation etc and does not seem applicable here according to the facts given.</sub></p>
<p><sub><sup>2</sup> &quot;this Part&quot; means Part 1 of the Act - i.e. <a href="https://www.legislation.gov.uk/ukpga/2003/42/part/1?timeline=false" rel="noreferrer">sections 1 to 79</a></sub></p>

<p><a href="/questions/tagged/new-south-wales" class="post-tag" title="show questions tagged &#39;new-south-wales&#39;" aria-label="show questions tagged &#39;new-south-wales&#39;" rel="tag" aria-labelledby="new-south-wales-container">new-south-wales</a></p>
<h2>100% Sexual Assault</h2>
<p><em>The common law crime of Rape has been abolished in NSW</em></p>
<p><a href="https://legislation.nsw.gov.au/view/html/inforce/2022-08-19/act-1900-040#sec.61HI" rel="nofollow noreferrer">S61HJ</a> of the Crimes Act relevantly provides that consent is not given if:</p>
<blockquote>
<p>(j) the person participates in the sexual activity with another person because the person is mistaken—</p>
<p>(i)  about the identity of the other person, or</p>
<p>(ii)  that the person is married to the other person, or</p>
</blockquote>

<p><a href="/questions/tagged/france" class="post-tag" title="show questions tagged &#39;france&#39;" aria-label="show questions tagged &#39;france&#39;" rel="tag" aria-labelledby="france-container">france</a> (after all, some dubious interpretations of Arthurian legend take place in Britanny...) : <strong>yes</strong>.</p>
<p><a href="https://www.legifrance.gouv.fr/codes/id/LEGISCTA000043409028/" rel="noreferrer">Code Pénal, article 222-23</a>: (emphasis added)</p>
<blockquote>
<p>Tout acte de pénétration sexuelle, de quelque nature qu'il soit, ou tout acte bucco-génital commis sur la personne d'autrui ou sur la personne de l'auteur par violence, contrainte, menace <strong>ou surprise</strong> est un viol.</p>
</blockquote>
<blockquote>
<p>Any act of sexual penetration, of any nature, or oral sex act, made upon another or upon the author by violence, coercion, threat, <strong>or deception</strong> is rape.</p>
</blockquote>
<p>Translation note: &quot;surprise&quot; has the same meaning in plain English and plain French (i.e. &quot;unexpected occurrence&quot;), however in the context of that statute and the jurisprudence surrounding it &quot;deception&quot; is a better match. I could find two fact patterns matching closely the &quot;shapeshifting king&quot; example that reached the <em>Cour de Cassation</em> (the highest court of appeals) and where the court judged that the facts constituted &quot;surprise&quot;.</p>
<ul>
<li><a href="https://www.legifrance.gouv.fr/juri/id/JURITEXT000033880005/" rel="noreferrer">Crim. 11 janv. 2017, n°15-85.680</a>. The victim was drunk in bed and believed that person X (her boyfriend) had joined her, when in fact person Y had, and consented to touching under that misapprehension. Y was condemned for sexual assault (not rape, but the &quot;surprise&quot; element is the same).</li>
<li><a href="https://www.legifrance.gouv.fr/juri/id/JURITEXT000038091405" rel="noreferrer">Crim. 23 janv. 2019, n°18-82.833</a>. The author lied in his internet dating profile (using someone else’s picture and making himself 30 years younger) to convince multiple women to come to his home, get blindfolded, and have sex with him. The victims knew of the blindfold-and-sex scheme before going to his home, so that part was not a &quot;surprise&quot; in the plain meaning of the term. The court still judged that the use of deceptive maneuvers constituted &quot;surprise&quot; for the purpose of the statute.</li>
</ul>

<p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="united-states-container">united-states</a></p>
<blockquote>
<p>If sexual consent is gained by deceit or misapprehension, is the
resulting sex legally a rape?</p>
</blockquote>
<p>The predominant rule in U.S. law is that sexual consent gained by deceit or misapprehension is not legally a rape. This general rule is one of the sources of the aphorism, &quot;all's fair in love and war.&quot;</p>
<p>But this rule is almost always subject to an exception that applies in this fact pattern.</p>
<p>The exception to the general rule is that sexual consent secured by deceit or misapprehension about who you have having sex with (e.g. blindfolding someone and deceiving them to think that they are having sex with their spouse) is rape.</p>
<p>This rule (sometimes statutory and sometimes a common law rule) mirrors the statutory rule in New South Wales cited by @DaleM in his answer.</p>
<p>This exception applies when: &quot;Merlin magically disguises Uther Pendragon to look like his enemy Gorlois, enabling Uther to sleep with Gorlois' wife Lady Igraine.&quot;</p>
<p>Most jurisdictions also treat sexual penetration or contact secured by pretending to provide medical care or a lawful law enforcement search to be rape. But, most often, the law structures this as an immunity for people who are doing so properly, rather than as consent obtained by fraud for those who do so when they don't qualify for this immunity from rape liability. This is because legitimate law enforcement searches and legitimate medical treatment is not always consensual and/or sometimes involves someone incapable of consent - like medical care provided to an unconscious person.</p>
<p>As the statutory language quoted by @Rick indicates, however, in England and Wales, impersonation of a law enforcement officer or medical practitioner, for example, with a lawful purpose, is structured, at least in part, as a lack of consent due to fraud issue.</p>
<p>If someone knows who they are having sex with, however, and are induced to have sex, for example, by a lie about how rich they are, or that they intend to pay a prostitute when that person does not intend to do so, or about not having an STD, or about planning to marry that person, these falsehoods do not cause the sexual conduct to be rape.</p>
<blockquote>
<p>would the situation be different if there was no deception? One can
imagine a situation where two identical twins were separated at birth.
Twin A gets married, but whilst he is out of town Twin B happens to
meet his wife, and they end up having sex. The wife believed she was
sleeping with her husband; Twin B believed it was an innocent one
night stand. Since the wife's consent was contingent on a
misapprehension, was she unable to freely consent, and thus the act
was a rape?</p>
</blockquote>
<p>For purposes of a criminal prosecution, it is the intent and knowledge of the criminal defendant, and not the intent and knowledge of the victim, that is relevant. Under the Model Penal Code (not adopted in any state but used as a model for particular criminal code definitions in many U.S. states) and under most U.S. state criminal codes, the minimum level of culpability for rape is recklessness, but this varies considerably from U.S. state to U.S. state. Some require, for example, knowledge, rather than mere recklessness as to whether or not they have secured consent without deceit that causes the act to be rape.</p>
<blockquote>
<p>Whilst Igraine freely agrees to sex, she is under the misapprehension
that Uther is her husband; would that make her legally incapable of
giving informed consent?</p>
</blockquote>
<p>The standard is consent, not informed consent. Informed consent is not required to avoid criminal liability for rape. Informed consent means that someone has been expressly told about enough of the material pros and cons of doing something to reasonably understand the risks and benefits of doing so, and then deciding to goes forward with something after having been informed in this manner. But this examination of the pros and cons of having sex which would be necessary to provide informed consent is not legally required for an action to not constitute rape (or for that matter, to consent to marriage).</p>

<p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="canada-container">canada</a></p>
<p>Consent in your scenarios would be missing: either due to failure to be specific to the activity in question, vitiation due to fraud/deceit, or missing an element of capacity.</p>
<h3>Specificity</h3>
<p>In <em>R. v. Kirkpatrick</em>, <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/19458/index.do" rel="nofollow noreferrer">2022 SCC 33</a>, a majority of the Supreme Court of Canada held that consent must be specific to the sexual activity in question. If there is no subjective consent to the actual sexual activity in question, that completes the <em>actus reus</em> for sexual assault. In that case, the issue was that the accused did not use a condom, but consent of the complainant was conditioned on condom use.</p>
<h3>Fraud/deceit</h3>
<p><em>Kirkpatrick</em> also did not overturn the older case of <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13511/index.do" rel="nofollow noreferrer"><em>Hutchison</em></a> which held that deceit/fraud can also vitiate consent. The concurring minority would have relied solely on <em>Hutchison</em>'s approach of deceit/fraud/vitiation.</p>
<h3>Capacity requires understanding of the identity of the partner(s)</h3>
<p>Futher, subjective consent is dependent on the <em>capacity</em> to consent. For someone to have the capacity to consent they must be capable of understanding &quot;the specific identity of the... partner or partners&quot; (<em>R. v. G.F.</em>, <a href="https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18884/index.do" rel="nofollow noreferrer">2021 SCC 20</a>).</p>
<h3>Conclusion</h3>
<p>Which these paths would be applicable to the scenarios you described is not clear, but it is clear that the <em>actus reus</em> of sexual assault would be made out.</p>
<p>(In the &quot;twin&quot; scenario, there <em>may</em> be a defence of &quot;mistaken belief in communicated consent,&quot; but this would depend on what reasonable steps were taken to ascertain consent. I find it highly unlikely that Twin B could take what would be considered to be reasonable steps to ascertain consent without revealing that he is not Twin A.)</p>
