criminal-law sexual-assault transgender
Is it rape to have sex with a man without disclosing that one is a male-to-female transgender person?
<p>A male-to-female transgender person meets a male partner, but does not tell the partner about being transgender. Thus, the male partner believes the transgender woman is a (cis-gender) woman, and they have sex. If the transgender woman hadn't hidden this fact, the male partner would not ever have wanted to have sex.</p>
<p>Is this considered rape?</p>
<hr />
<p>Considering the growing ratio of people going through a sex change operation, and living later hiding this fact from the society, the problem will likely become more and more common.</p>

<p>Not disclosing transgender identity is not a crime of any kind, not rape, not fraud, not anything else. There is really no qualification to this statement. </p>

<p>There is pretty much no plausible scenario in which concealing a transgender identity leads to liability for fraud of any kind and this never constitutes rape by deception.</p>

<p>What is a crime and is regularly prosecuted, is retaliating against the person or property of someone who they discover is transgender while having sex. Incidents like these happen with some frequency and they alway create criminal liability for the person retaliating and never for the transgender individual in the cases where the transgender individual isn't killed (dozens of time each year in the U.S. the transgender individual is killed in a situation like this one).</p>

<p><strong>tl;dr</strong>: It might be rape, but it depends.</p>

<p>There is the concept of <a href="https://en.wikipedia.org/wiki/Rape_by_deception" rel="noreferrer">rape by deception</a>, which might apply here. However, that concept is usually only applied under very narrow circumstances - not every act of deception in a relationship can be used to later claim rape by deception.</p>

<hr>

<p>There was a related case <strong>in England</strong> in 2015, where the situation was reversed to your question: A woman pretended to be a man as a means having sex with another woman. She was sentenced to eight years in prison. BBC article: <a href="http://www.bbc.com/news/uk-england-34799692" rel="noreferrer">Woman who posed as man jailed for sex assaults</a>. However, in that case the accused never claimed to be transgender, she just falsely claimed to be a man. In the case of a transgender person, some would claim that their "new" gender is the real gender, so a court might decide differently.</p>

<p>Wikipedia lists another case <strong>in Massachusetts</strong>, where a woman had sex with her boyfriend's brother because he claimed to be the boyfriend. In that case the brother was found not guilty, because in Massachusetts rape by definition has to involve force:</p>

<blockquote>
  <p>(b) Whoever has sexual intercourse or unnatural sexual intercourse
  with a person and compels such person to submit by force and against
  his will, or compels such person to submit by threat of bodily injury
  [...]</p>
</blockquote>

<p><em><a href="https://malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter265/Section22" rel="noreferrer">Commonwealth of Massacusetts, General Laws, Section 22</a></em></p>

<p><strong>In Germany</strong>, I could not find any similar cases. However, in the German criminal code, the definition of rape includes:</p>

<blockquote>
  <ol>
  <li>der Täter ausnutzt, dass die Person nicht in der Lage ist, einen entgegenstehenden Willen zu bilden oder zu äußern,</li>
  </ol>
  
  <p>[...]</p>
  
  <ol start="3">
  <li>der Täter ein Überraschungsmoment ausnutzt,</li>
  </ol>
</blockquote>

<p>English:</p>

<blockquote>
  <ol>
  <li>the offender uses the fact that the person is unable to form or to express a contrary will</li>
  </ol>
  
  <p>[...]</p>
  
  <ol start="3">
  <li>the offender uses a moment of surprise</li>
  </ol>
</blockquote>

<p><em><a href="https://www.gesetze-im-internet.de/stgb/__177.html" rel="noreferrer">Strafgesetzbuch (StGB) -
§ 177 Sexueller Übergriff; sexuelle Nötigung; Vergewaltigung</a>, translation mine</em></p>

<p>So, again, a court <em>could</em> decide that the use of a deception causes the victim to be "unable to form a contrary will". However, courts will have to decide each case individually.</p>

<p>No, at least in the US, there is no criminal or even tortious liability stated here.</p>

<p>Since the question was asked jurisdiction-independend, I'll try to answer it that way.</p>
<p>This greatly depends on the jurisdiction.</p>
<p>In general, I'd say, about any country that allows people to legally change their gender will not consider this rape. Because, in the eyes of the law, this person <em>is</em> a woman. So legally, there is nothing to hide.</p>
<p>In countries, where that's not the case, the outcome might be very different. There, since the person is legally still a man, that could be considered as hiding material information. Then the question is whether that jurisdiction has something like &quot;rape by deception&quot;, and on how that is exactly defined.</p>
<p>Also, things might be different, if a person says, they identify as the other gender, but haven't changed their legal status. This might also be an issue, but again, only if the jurisdiction has &quot;rape by deception&quot; and then only if it actually encompasses that behaviour.</p>
