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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?


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.

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  • 2
    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, 2017 at 4:04
  • 1
    Comments are not for extended discussion; this conversation has been moved to chat.
    – feetwet
    Feb 20, 2021 at 22:59

5 Answers 5

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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.

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    "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, 2017 at 22:00
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    You seem to assume that not disclosing "by the way, I changed my gender" is a deception.
    – Brandin
    Nov 7, 2017 at 7:50
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    @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, 2017 at 7:56
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    "By the way, I changed my gender" is not how being transgender worked. They don't change their gender. They change their appearance to make it match their gender at last. The transgender woman in the question was always a woman, it just wasn't obvious to the people around her for a long time.
    – gnasher729
    Feb 20, 2021 at 21:18
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    @gnasher729 That is exactly the question. Your definition is a popular definition that many are using today. Go back 50 or 100 years, and most people would have had a very different understanding of the subject. And while your view is definitley a nice way to treat the matter, it is not an indisputable, fundamental truth, same as any other way of viewing any other aspect of human experience. As such it is very possible to have different views than yours, and in the end, the answer to the question heavily depends on how the law and the judge view this matter.
    – Dakkaron
    May 23, 2022 at 18:40
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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).

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  • 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, 2017 at 15:13
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    I clarified the statement. But, it is relevant as it clarifies how the situations in question play out legally in practice.
    – ohwilleke
    Nov 6, 2017 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, 2017 at 18:12
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    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, 2017 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, 2017 at 18:22
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No, at least in the US, there is no criminal or even tortious liability stated here.

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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.

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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.

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  • 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, 2017 at 13:59
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    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, 2017 at 14:54
  • Usually to consent to sex, people look at each other while dressed, later look at each other while undressed, and decide based on that. There’s no requirement to tell the other person your whole life story. Might be different if the other person had asked and you lied to them.
    – gnasher729
    Mar 12, 2021 at 9:14

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