4

A male-to-female transgender meets a male partner, but does not tell the partner about being transgender. Thus, the male partner believes the transgender is a (cis-gender) woman, and they have sex. If the transgender hadn't hidden this fact, the male partner would not ever have wanted to have sex.

Is this considered rape?


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.

  • 1
    The question tries to be country-independent, but if it would result its closure, then we could assume U.S. law. – Gray Sheep Nov 6 '17 at 4:04
  • Hi, I edited your answer to make it clearer and easier to read. I hope I did not change your intended meaning - feel free to re-edit if I made a mistake. – sleske Nov 6 '17 at 9:11
  • @sleske You are using the neoliberal gender-terminology and I won't do it ever. The gendertheory is a lie, a pseudoscience. I will take it back asap. – Gray Sheep Nov 6 '17 at 14:29
  • 1
    What terminology do you object to? I used the word "cis-gender" to clarify the word "woman" which may mean different things to different people in this context. If you are more comfortable with "born as a woman" or something similar, feel free to edit. – sleske Nov 6 '17 at 18:06
  • 4
    @MorningStar If your question is whether the transgender person is legally a woman (in the U.S.), ask that. If your question is to make some sort of protest against transgenderism ("the gendertheory is a lie, a pseudoscience"), take it to another forum. – Brandin Nov 7 '17 at 7:57
9

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.


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,

[...]

  1. 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

[...]

  1. 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.

  • "einen entgegenstehenden Willen zu bilden" I can't imagine a court ruling it was rape based on that paragraph. Having undergone sex change operation doesn't magically cause other people to no longer be able to say "no". – idmean Nov 6 '17 at 22:00
  • You seem to assume that not disclosing "by the way, I changed my gender" is a deception. – Brandin Nov 7 '17 at 7:50
  • 2
    @Brandin: Yes, it might be considered a deception by omission. I'm not judging whether it is (I don't know myself, I'm not a specialist lawyer), I just pointed out what the law says and that this is one way this could be considered rape, if a court sees it that way. If you have something to add which shows that this would not be considered deception, by all means go ahead and write an answer (or edit mine). – sleske Nov 7 '17 at 7:56
  • No, but both of your examples cited are clearly deception. The statement "the situation was reversed to your question" in particular is misleading; it was not reversed. As you say, transgenderism was not even involved in that case, and there was clear deception. – Brandin Nov 7 '17 at 7:59
6

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. 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).

  • Your last paragraph is not relevant to the question. Besides, whether the retaliation was criminal would depend on the actions. Unfriending the partner from social media as retaliation is almost certainly not a crime. Verbal or physical threats probably are, whether as retaliation or not. – Brandin Nov 6 '17 at 15:13
  • I clarified the statement. But, it is relevant as it clarifies how the situations in question play out legally in practice. – ohwilleke Nov 6 '17 at 15:20
  • While I respect your experience - are you sure it is this clear-cut? As far as I understand, if a jurisdiction has "rape by deception" (which not all do), a judge might consider this rape by deception. Or is there some specific language in these laws which rules that out? – sleske Nov 6 '17 at 18:12
  • 1
    Rape by deception is an extremely narrow doctrine adopted in only a few jurisdictions and generally with quite explicit statutory or case law language that wouldn't reach these circumstances. See e.g. prior SE answer law.stackexchange.com/questions/23845/… Neither of the UK grounds would apply. The "nature and purpose" clause applies to e.g. fake gynecologists and fake strip searches allegedly by police. If the sex is for purpose of pleasurable sex it doesn't apply. – ohwilleke Nov 6 '17 at 18:18
  • There is an overview article at digitalcommons.law.yale.edu/cgi/… but it is loading slowly for me today so I can't quote it. – ohwilleke Nov 6 '17 at 18:22
-3

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.

  • The question is whether not disclosing information in order to have sex would be considered rape. Your answer seems to disregard that. If you mean to say that lying or omitting information in order to get willingness to have sex is not a crime, make it clear that that's what you're saying. – Brandin Nov 6 '17 at 13:59
  • Concealing one's transgender status from a potential sexual partner is not a crime of any kind, nor for that matter is it a tort. – ohwilleke Nov 6 '17 at 14:54

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