united-states european-union sexual-assault identification sexual-offences
A had sexual intercourse with B because A misidentified B as her boyfriend. Did B committed sexual assault?
<p>B has similar facial characteristics with A's boyfriend, C. A had sex with B with both sides' consent. B did not lie about his identity.</p>
<p>Later A find out that B is actually not her boyfriend. Does A has reasonable ground to claim it a sexual assault (or rape, or other similar offense)?</p>
<p>Answer from US, Canada, Europe, or any other countries is welcome.</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>
<h3>Avoiding an overly literal reading of your assertion that &quot;both sides consent&quot;</h3>
<p>The <em>actus reus</em> of sexual assault is sexual touching without the consent of the complainant.</p>
<p>In your scenario, you say that &quot;both sides&quot; consented. If this is truly the case, then there is no sexual assault.</p>
<p>But I don't think you meant to say this. As I explain below, in order to consent, A must not have been mistaken about the identity of B: A could not have thought that B was C. If she was mistaken, as you assert in the title and in the second paragraph, then she was not consenting at law in Canada.</p>
<p>Thus, I will assume you have used &quot;consent&quot; more colloquially, and move on to assess the scenario in which A merely &quot;consented&quot; in the sense that she was not physically or otherwise coerced into the physical acts.</p>
<h3>Can mistaken identity result in sexual assault? Yes</h3>
<p>In your scenario, where A thought B was C, the <em>actus reus</em> of sexual assault has occured: sexual touching without A's subjective consent. This is because consent is linked to the identity of the partner (see <em>R. v. Barton</em>, <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17800/index.do" rel="nofollow noreferrer">2019 SCC 33</a> at para. 88).</p>
<p>See also <em>R. v. Hutchinson</em>, <a href="https://canlii.ca/t/g62cv#par57" rel="nofollow noreferrer">2014 SCC 19 at para. 57-58, 63</a>:</p>
<blockquote>
<p><strong>a complainant’s mistaken belief about the identity of the partner</strong> or the sexual nature of the act — whether or not that mistake is the result of a deception — <strong>will result in no consent</strong> under s. 273.1(1) of the Criminal Code.&quot;</p>
</blockquote>
<blockquote>
<p>... if a complainant agrees to sexual activity with A, who is a specific individual known personally to her, she is not agreeing to sexual activity with B</p>
</blockquote>
<blockquote>
<p>... the Ontario Court of Appeal in <em>R. v. G.C.</em>, <a href="https://canlii.ca/t/2b6nr" rel="nofollow noreferrer">2010 ONCA 451</a>, 266 O.A.C. 299, leave to appeal refused, [2010] 3 S.C.R. v, adopted this approach and held that the complainant’s belief that the partner was her boyfriend when it was in fact his identical twin resulted in no consent to the “sexual activity in question” under s. 273.1 of the Criminal Code. (See also <em>R. v. O.A.</em>, <a href="https://canlii.ca/t/g0qcv" rel="nofollow noreferrer">2013 ONCA 581</a>, 310 O.A.C. 305.)</p>
</blockquote>
<p>Since A was mistaken about the identity of the partner, there was no consent.</p>
<p>B may very well have a defence available: mistaken belief in communicated consent (<em>R. v. Barton</em>). This defence asserts that the accused did not possess the <em>mens rea</em> of sexual assault (which is knowing of the lack of consent, or being reckless as to the lack of consent). This defence asserts that, despite A not consenting, B believed that A did consent. This was the attempted defence in <em>G.C.</em> and <em>O.A.</em>, cited above.</p>
<p>For this defence to be successful, B's belief in A's communicated consent must be based on reasonable steps taken by B to ascertain consent. Whether the steps taken by B were reasonable depends on what was known to B at the time.</p>
<blockquote>
<p>the accused must take steps that are objectively reasonable, and the reasonableness of those steps must be assessed in light of the circumstances known to the accused at the time</p>
</blockquote>
<p>In your scenario, you have not asserted that there is anything <em>known to B</em> about &quot;similar facial characteristics [he shares] with A's boyfriend.&quot; However</p>
<ul>
<li>if it is well-known to B that he looks like C, and</li>
<li>depending on how similar the features are, and</li>
<li>depending on what B knew about A's ability to discern the difference between B and C</li>
</ul>
<p>this might put an obligation on B to affirmatively confirm with crystal clear language that A knows that B is not C, failing which, he would not have the defence of mistaken belief in communicated consent. For example, in <em>G.C.</em> (the identical-twin case), &quot;[t]he trial judge recited the relevant facts of that night known to the appellant and concluded that without doing more than he did to make his identity perfectly clear to the complainant, the appellant could not be said to have taken reasonable steps necessary to ascertain that the complainant was consenting.&quot;</p>
<hr />
<p><sup>Anticipating comments that will always come up about evidence: this answer intentionally skips over questions like &quot;how would you prove X in court.&quot; This answer only says what the law is and what would have to be proven. If you would like to read about evidence and how to prove facts in court, please see <a href="https://law.stackexchange.com/questions/86825/how-do-you-prove-a-fact-at-issue-in-litigation">this answer</a> to the question <a href="https://law.stackexchange.com/questions/86825/how-do-you-prove-a-fact-at-issue-in-litigation">How do you prove a fact at issue in litigation?</a></sup></p>

<p>In the criminal law context, the <em>mens rea</em> <strong>of the defendant</strong> is all important. The relevant legal question is whether the defendant knew (or at least acted recklessly as to whether this was the case, the threshold varies from jurisdiction to jurisdiction) that he was misidentified as a partner. The fact that she was mistaken in and of itself isn't sufficient.</p>
<p>If the defendant believed in good faith that the woman he was having sex with knew who he was and there was no evidence that would have been apparent to him that the woman was mistaken, then he has not committed rape (or any other crime).</p>
<p>The facts suggest that the man lacked the necessary intent by stating &quot;B did not lie about his identity.&quot;, but to really get to the bottom of the question, one would need a much richer set of facts about what happened, and in particular, what his knowledge, intent, and understanding about what she believed was at the time. If he knew she had made a mistake of identity, even if he didn't expressly lie, this would be the necessary level of <em>mens rea</em> in most U.S. jurisdictions. But, if he had nothing to clue him in (maybe he'd never even met her boyfriend who happened to have the same first name, both of which could easily happen in big city or at a large university), he would not have the <em>mens rea</em> necessary to be guilty of a crime.</p>
<p>Also, of course, it is necessary to prove guilt beyond a reasonable doubt, and he can't be compelled to testify. This isn't an insurmountable barrier to a prosecution, but it makes the case much harder to prosecute.</p>

<blockquote>
<p>B did not lie about his identity.</p>
<p>Later A find out that B is actually not her boyfriend.</p>
</blockquote>
<p>From that I deduct that A had sex with B <em>assuming</em> that he was C.</p>
<p>However, it is not clear how things went from the point of view of B. Options are:</p>
<ol>
<li>B <em>knew</em> that A was thinking he was C and that she would not consent had she known that he wasn't;</li>
<li>B had no idea of the existence of C, and assumed that A specifically wanted to have sex with him (B).</li>
</ol>
<p>So,</p>
<blockquote>
<p>Does A has reasonable ground to claim it a sexual assault (or rape, or other similar offense)?</p>
</blockquote>
<p>No — unless A can somehow prove beyond reasonable doubt that it was #1 above and not #2.</p>

<p>It is quite possible that a person doesn’t care or doesn’t care much about the identity of their sexual partner. So the first question should be: Would there have been consent if the true identity had been known?</p>
<p>So if the person agrees with that then there is no case.</p>
