So a woman met someone at the bar who told her he was a guy. Everyone refers to the individual as he/him and the couple even had a conversation that brought up the fact that she was straight.
Because she's under the influence when they go home she doesn't realize that the penetration was from a "strap on" not an actual penis as is her sexual preferences, religion. And culture.
Would this be considered rape?
In English law it can't be 'rape' because that requires a penis (section 1 Sexual Offences Act 2003). However, the behaviour might amount to the offence of 'assault by penetration' (s2 Sexual Offences Act 2003).
A necessary element of both offences is the absence of consent or absence of reasonable belief in consent. Consent: "a person consents if he agrees by choice, and has the freedom and capacity to make that choice" (s74 Sexual Offences Act 2003).
In terms of the intoxication issue
The complainant cannot consent if they are incapacitated (which is not the same as being unconscious).
If, through drink (or for any other reason) the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting ... However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so [she can consent] ... We should perhaps underline that, as a matter of practical reality, capacity to consent may evaporate well before a complainant becomes unconscious. Whether this is so or not, however, is fact specific, or more accurately, depends on the actual state of mind of the individuals involved on the particular occasion.
R v Bree [2007] EWCA Crim 804 paragraph 34
In terms of the gender issue
"Depending on the circumstances, deception as to gender can vitiate consent" (R v Justine McNally [2013] EWCA Crim 1051).
In this context, "to vitiate" means "to destroy or impair the legal validity of."
Meaning, if the accused actively or deliberately misled the complainant about the accused's gender, then the accused did not get consent. As well as McNally there have been other cases in which a cis-female, who normally identified as female, pretended to be male to deceive another female into sexual activities (example 1, example 2).
It seems more difficult to be so definitive if there is no deliberate deception. Suppose the accused identifies as a particular gender; for some time before meeting the complainant they lived that gender identity, it has been and is their normal life; in terms of their sex or gender the accused never lied to the complainant, never intentionally manipulated or exploited the complainant. They had sex. In these circumstances, did the complainaint consent, did the accused have reasonable belief in consent?
Some people argue that the trans person must disclose their biological sex, that if the other person is not aware of it then they are not capable of consenting. I don't know if there is case law that settles this one way or another. In late 2022 the Crown Prosecution Service (CPS) ran a public consultation about deception as to gender but, at the time of writing this, I don't think the conclusions have been published. At the same time, the CPS published a proposed revision to the legal guidance for prosecutors that doesn't seem to address the particular issue of consent when there is no deliberate deception.
In terms of the penis/"strap on" issue
Did the complainant consent to being penetrated with the "strap on", did the accused have reasonable belief in consent to penetration with the "strap on"? If the answer to either of those is yes, then the offence is not made out.
In the scenario, presumably the complainant did not consent to being penetrated with the "strap on." Therefore the accused must rely on having reasonable belief in consent.
The accused is responsible for ensuring the complainaint consented to the sexual activity. Did the accused genuinely believe the complainant consented and was this belief reasonable? The police and prosecutors will ask the accused what steps the accused took to arrive at this belief. Ultimately a jury will decide whether this was a reasonable belief.
To prove an offence, the Crown (prosecution) must establish both the actus reus and mens rea of the offence.
The actus reus of sexual assault is that:
"The mens rea is the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched" (R. v. Ewanchuk, [1999] 1 S.C.R. 330).
In R. v. Kirkpatrick, 2022 SCC 33, 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 actus reus for sexual assault.
The Court said:
The law recognizes that consent to penetration in one area of the body does not constitute consent to penetration in a different area because these are distinct physical acts. Similarly, consent to a form of touching may depend on what is being used to touch the body because the law appreciates there is a physical difference between being touched by a digit, penis, sex toy or other object.
That conclusion does not depend at all on the anatomy, gender-identity, or sexual preferences of either of the participants. Those aspects of the question are red herrings. The same specificity of consent is required for all sexual touching. If anyone used a sex toy on anyone, without specific consent to that touching, it would make out the actus reus of sexual assault.
If there is no consent to the specific sexual activity, that would establish the actus reus of sexual assault. To make out the complete offence, the Crown (prosecution) would also have to prove that the accused knew or was reckless as to the lack of consent.
The crime of rape has been abolished, but what you describe might be sexual assault under s61I of the Cimes Act 1900:
Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years.
From s61HA
"sexual intercourse" means--
(a) the penetration to any extent of the genitalia or anus of a person by--
(i) any part of the body of another person, or
(ii) any object manipulated by another person, or
(b) the introduction of any part of the genitalia of a person into the mouth of another person, or
(c) the application of the mouth or tongue to the female genitalia, or
(d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).
So penetration by a strap on (or anything else) clearly meets 61HA(a)(ii).
There are circumstances in s61HJ where there cannot be consent, relevently:
(1) A person does not consent to a sexual activity if--
(c) the person is so affected by alcohol or another drug as to be incapable of consenting to the sexual activity, or
You describe her as "under the influence", which doesn't sound like "so affected by alcohol or another drug as to be incapable of consenting", particularly where it does not seem to be disputed that she consented to a different type of sexual activity.
Which brings us to s61HI:
(5) A person who consents to a particular sexual activity is not, by reason only of that fact, to be taken to consent to any other sexual activity.
As described, she did not agree to be penetrated by a strap on so she has not given consent.
And s61HK deals with knowledge:
(1) A person (the "accused person" ) is taken to know that another person does not consent to a sexual activity if--
(a) the accused person actually knows the other person does not consent to the sexual activity, or
(b) the accused person is reckless as to whether the other person consents to the sexual activity, or
(c) any belief that the accused person has, or may have, that the other person consents to the sexual activity is not reasonable in the circumstances.
(2) Without limiting subsection (1)(c), a belief that the other person consents to sexual activity is not reasonable if the accused person did not, within a reasonable time before or at the time of the sexual activity, say or do anything to find out whether the other person consents to the sexual activity.
...
(5) For the purposes of making any finding under this section, the trier of fact--
(a) must consider all the circumstances of the case, including what, if anything, the accused person said or did, and
(b) must not consider any self-induced intoxication of the accused person.
As described, it appears that the accused has possibly been reckless but, in any event, there is no evidence that they "within a reasonable time before or at the time of the sexual activity, say or do anything to find out whether the other person consents to the sexual activity", which means any belief they had that there was consent was not reasonable under 61HK(1)(c).
This assumes that the facts stated in the second paragraph are proven - that's always tricky. Assuming that they are, a conviction is a near certainty. From the Criminal Trials Bench Book suggested jury instruction:
A person who consents to a particular sexual activity is not, by reason only of that fact, to be taken to consent to any other sexual activity. There is evidence the complainant may have consented to [describe relevant sexual activity]. If you decide [she/he] may have consented to that activity, it does not follow that for that reason only [she/he] consented to the act of intercourse alleged by the Crown. [Summarise the evidence and relevant arguments of the parties.]]
The discussion on gender does not appear to be relevant to the particular case, although it might be relevant in others. In particular, one cannot give consent if one is mistaken about the nature of the sexual activity (s61HJ(1)(i)) or if there was fraudulent inducement (s61HJ(1)(k)).
There has been no case law in NSW regarding whether a mistake about gender identity or sexual orientation would be captured by these provisions or, if they were, this mistake would have to have been induced by the accused. Certainly, under s61HJ(1)(k) they would, but under s61HJ(1)(i) it is not so clear.
In the example you give, the accused was male, held themselves out to be male, and was identified by others as male - apart from your statement in the title, there is no suggestion that they lied about being assigned a different sex at birth or that it even came up. Similarly, the victim holding herself out to be female and identifying as "straight" doesn't mean that she can't consent to sex with any male irrespective of that male's history - or any woman for that matter. There is no "fraudulent inducement"; if she had consented to the strap on (which she didn't), there's no reason to believe that that consent would not have been genuine and valid.
It is a crime, but which one depends on the amount of influence the victim was under.
If the victim was heavily incapacitated, then this will probably be considered estupro de vulnerável ("rape of vulnerable person"), punished by 8 to 15 years in prison.
If the victim was aware of the sexual act she participated, then this can be considered estelionato sexual ("sexual fraud"), punished by 2 to 6 years in prison.
