Is it rape to have sex with a man without disclosing that one is a male-to-female transgender person?

Question

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.

Is this considered rape?

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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.

Answer 1

tl;dr: It might be rape, but it depends.

There is the concept of rape by deception, 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.

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There was a related case in England 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: Woman who posed as man jailed for sex assaults. 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.

Wikipedia lists another case in Massachusetts, 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:

(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 [...]

Commonwealth of Massacusetts, General Laws, Section 22

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

1. der Täter ausnutzt, dass die Person nicht in der Lage ist, einen entgegenstehenden Willen zu bilden oder zu äußern,

[...]

3. der Täter ein Überraschungsmoment ausnutzt,

English:

1. the offender uses the fact that the person is unable to form or to express a contrary will

[...]

3. the offender uses a moment of surprise

Strafgesetzbuch (StGB) - § 177 Sexueller Übergriff; sexuelle Nötigung; Vergewaltigung, translation mine

So, again, a court could 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.

For a contrary position, the article "Zur Strafbarkeit von Täuschungen im Sexualstrafrecht" (About the culpability of deception in sexual criminal law) argues that obtaining consent to a sexual act by deception is not punishable under German law, because §177 (2) ("unable to form or to express a contrary will") only applies to cases of coercion or suprise, not to prior deception, and because deception is not explicitly covered elsewhere (my translation):

Richtigerweise ist also davon auszugehen, dass Täuschungen in allen vier Fallkonstellationen die Voraussetzungen eines sexuellen Übergriffs nach geltendem Recht nicht erfüllen. Der Täter erreicht durch die Manipulation des Sexualpartners dessen Zustimmung zur sexuellen Handlung und verhindert damit schon die Bildung eines entgegenstehenden Willens.

Rightly it must be accepted that in all the four cases listed, deception does not fulfill the conditions for a sexual crime under current law. The perpetrator obtains the sexual partner's consent by manipulating them, and thereby prevents the formation of a contrary will.

Answer 2

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.

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.

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. See, e.g., Andrade gets life for murder of transgendered woman. 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).

Answer 3

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

Answer 4

Since the question was asked jurisdiction-independend, I'll try to answer it that way.

This greatly depends on the jurisdiction.

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 is a woman. So legally, there is nothing to hide.

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 "rape by deception", and on how that is exactly defined.

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 "rape by deception" and then only if it actually encompasses that behaviour.

Answer 5

france

It depends

The statute is at article 222-23 of the penal code :

Tout acte de pénétration sexuelle (...) commis sur la personne d'autrui ou sur la personne de l'auteur par violence, contrainte, menace ou surprise est un viol (...)

Any act of sexual penetration (...) committed on another or on oneself by violence, coercion, threat or surprise is rape (...)

That does not help much. What constitutes "surprise" exactly?

Luckily, there is a case on point: Cour de cassation, criminelle, Chambre criminelle, 23 janvier 2019, 18-82.833. A man filled out online dating profiles with falsified information, including pictures of other (younger, more attractive) people. Multiple women accepted to have sex with him under circumstances where they could not discover the deception until after the sexual act (= they were blindfolded beforehand).

The relevant part is the first attendu (*):

Attendu que l'emploi d'un stratagème destiné à dissimuler l'identité et les caractéristiques physiques de son auteur pour surprendre le consentement d'une personne et obtenir d'elle un acte de pénétration sexuelle constitue la surprise au sens du texte susvisé

Using a stratagem to hide one's identity and physical characteristics, to obtain the consent of a person by deception and obtain from her an act of sexual penetration, qualifies as surprise under the cited text [222-23]

(*) Opinions by the cour de Cassation took until recently the form of a single run-on sentence that started with "given that (law), given that (law as applied facts), ..." - the "attendus" are the textual analysis.

My understanding is that male-to-female transgender individuals is that such individuals do have "physical characteristics" that differ from the typical cisgender female in a way that is relevant to sexual consent.

The question, however, is whether there was a "stratagem". The 2019 case is full of evidence of deceptive intent. The hypothetically-misled man might have not been lied to at any point, and even so might have difficulties proving it.

On a historical note, France had a public transgender figure 250 years ago; transgender identity is not exactly new.

Answer 6

Woman A considers having sex with a man, but definitely doesn’t want sex with a transgender man. Woman B considers having sex with a man, but definitely doesn’t want sex with a married man. Both are lied to.

Woman A should be able to realise that the man is a transgender man before anything happens that legally constitutes rape. Actually, the particular laws in the UK require the use of male body parts for rape, so rape wouldn’t even be possible (until some medical progress is made). Woman B doesn’t have a chance to find out, she might only learn the man was married a long time later.

So for this reason it is unlikely to be rape, but you would need the exact words of the laws in any jurisdiction, which are quite likely written without any thought of this situation.

Answer 7

Not disclosing a material fact does not constitute rape. Falsifying information, or not disclosing or lying would be a crime. Not of a criminal offense.