Is this (hypothetical situation) rape and/or rape by deception?

Question

In this (completely hypothetical) situation where identical twins are impossible to tell apart, would/could a prosecutor bring charges of rape?

This takes place in England. Apologies for length.

To make the situation as clear as possible, I've called the twins Draco and Harry.

Draco meets Ginny and goes out on several dates but she won’t have sex with him because she’s not sure about him. He breaks a date (to screw another woman instead) and sends his identical twin, Harry, in his place. Ginny has such a good time with Harry that she tries to convince him to come back to her place for sex. Harry refuses because he's a good guy and she’s Draco’s girl.

On a future date, Ginny has consensual sex with Draco (because the dates with Harry were so wonderful). But Harry continues to step in whenever Draco breaks a date, because he’s desperate to spend time with Ginny and has fallen in love with her. Eventually, Harry can’t help himself, he has sex with Ginny.

The twins continue to share Ginny over a period of a year without her knowing they are two different men. Harry proposes and convinces Draco that he should attend the ceremony. Draco agrees because he’s really just using Ginny for sex anyway.

After three years of marriage, Draco thinks Ginny is getting suspicious, and coming between him and Harry. Draco resolves that Ginny has to go. Draco tries to shoot Ginny, but Harry steps in at the last minute and shoots Draco in the head, saving Ginny’s life (and the life of her unborn child, and a police officer Draco has left for dead in the bathtub upstairs).

Harry confesses their entire scam to the police. He only continued the scam because he was in love with Draco’s girl, and didn’t tell Ginny the truth because he was terrified of losing her.

He didn't create the deception specifically to gain consent.

Even though Ginny wants nothing to do with Harry anymore, she won’t bring charges of rape. Harry's still her husband and the sex was always consensual. Also, she can’t help herself, she still loves him.

What arguments could a prosecutor bring forward to accuse Harry of rape?

And what arguments against could a defence counsel present to prevent Harry being charged?

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Notes:

I've already done a lot of research on this. I'm aware of the law (in as much as a person with no legal experience can be).

But:

I've spoken to a Metropolitan Police Officer who said that, while consent by deception is rape, the prosecutor would have a flimsy case in these circumstances.

And I spoke to a lawyer who said, consent by deception is rape, there is no getting around it. Even without Ginny, the prosecutor would bring charges of rape. Whether a jury would deliver a guilty verdict is another matter.

Under s76 of the Sexual Offences Act 2006, it is possible to commit rape by gaining consent through deception.

The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy says that "rape by deception is almost universally rejected in American criminal law." But this is England.

And Mr Justice Stephens said, "the only sorts of fraud which so far destroy the effect of a woman's consent as to convert a connection consented to in fact into a rape are frauds as to the nature of the act itself, or as to the identity of the person who does the act. Consent in such cases does not exist at all because the act consented to is not the act done." And the identity of who Ginny gave consent to is in question.

@ohwilleke posted a comment on a similar question saying, "Consent obtained by deception is consent in every jurisdiction I have examined"

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With conflicting advice, I'd be interested to know what arguments you might bring forward depending on whether you were prosecuting or defending Harry.

Answer 1

Both Harry and Draco have raped Ginny

The relevant provision is s76 of the Sexual Offences Act 2003. It is conclusively presumed that there was no consent if "the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant."

At various times, both Harry and Draco did this.

Answer 2

For the DA side the DA COULD accuse Harry as being a accessory to rape since his interactions with her led to her having sex with Draco. But that again means he would have to intended to HELP his brother get to have sex with her. In this case I fairly certain that's the LAST thing he wanted to have happening if he cared about her since I've NEVER met a guy who's cool with sharing their woman. He was afraid to lose what he DID have with her by telling her the truth again showing that he was willing to share her rather then not having her in his life at all.

Answer 3

Speaking for a females pov and the LAW. Technically speaking the only person who has ILL INTENT was Draco since all he wanted was for her to consent to having sex with him since he was just a sex toy to him hence having his brother fill in to begin with. Even that action was not with any sort of ill intent hence him NOT trying to do anything with her at all. I completely understand how he thought he was just filling in one time and didn't at ALL plan for them to hit it off. This is key he WASN'T using the ability to pretend to be his brother in order for them to BOTH have sex with the same girl. Put it this way. Guys lie to girls ALL the time for various reason but if their lies and those lies don't make the sex non consensual just because someone doesn't know everything about you. What makes lying a issue is when it is done with the express purpose of getting someone to sleep with them and it has be done with the knowledge not only of what they are doing BUT that it is wrong to do so. So in other words it's ALL about intent. This shows exactly why rape cases are hard in general and btw a DA would be INSANE to take the case EVEN if he could technically. Here's general stats out of a 1000 rape allegations the DA ONLY takes an average of 13 of them on and only one case has been prosecuted without a victims testimony This is another reason why people who are raped don't report it, (Btw I'm one of those ppl) that and primarily not is it only your word against his but there can be politics/beliefs at play that are set up to KEEP you silent like in my case. IF you come forward in that sort of situation it's literally like getting raped again since now you have some detective filming your whole body and inserting things. When you are 21 and haven't had sex much at all that alone tends to stop you from wanting to report it. Your bodies/brains reaction is to get the hell away from those people FOREVER and try to forget it asap. The whole thing is embarrassing, humiliating, and insanely scary. You tend to become OBSESSED with the event wondering if some how YOU'VE done something wrong. I was drugged so I have missing time, I couldn't fight it was like I was watching myself from outside my body. It was SO crazy to not be able to move a muscle. Apparently he took TOO long so towards the end I started getting my memory back. So when I finally got out of there and went home I really didn't know what all happened and since I was young I was afraid to come forward without having that knowledge. Since I did drink something I thought that I got black out drunk (again it's STILL a crime! But I LITERALLY didn't know that.) I only realized later though obsessively trying to remember that I had only drank 1 and 1/2 beers over a hour or so (can't quite remember that other then I didn't like beer so I wasn't drinking fast at all) the last beer I had let my "friend" watch for me for a couple minutes. (This friend was someone I'd met through my roommates and had known for quite some time. All of them were super into Christian stuff and even the party was a engagement party while ONLY church goers. I obviously was more relaxed then I would EVER be at some place like a club or bar both of which I've only ever gone a couple times and I'm 30. Again NOT a risk taking lifestyle to be sure. lol) Crazy thing is I'm a heavy weight, I literally NEVER get drunk on beer at all EVER! lol I didn't know that fact since before then I had never really drank beer. (since the drug affects your memory prior to taking it) If I hadn't been SO shaken and trying to rack my brains to figure out what happened instead of just reporting it when the drugs might had system but I felt I lost TOO much vital time AND was too ashamed and afraid that I somehow had done something to deserve it to report it. This had a lot to do with my upbringing since I was taught pretty much that it's MY responsibility to be super modest etc so that guys don't want me. That's your conservative white christian mentality unfortunately. I still have issues with wanting to be SUPER vigilant ESPECIALLY around my home. I NEVER tell ANYONE where I live even friends, I ONLY go out to see them elsewhere and NEVER EVER drink more then 1 lite drink in those settings and if it is at someone else house I ALWAYS bring my own beer lol. Of course its not MY fault for getting raped BUT in order to not been constantly afraid I've taken specific actions to insure I can be as SAFE as possible then at that point I've done what I can and the rest is up to God. THAT it how I learned to cope, to move forward, and to gain back my power. That and being armed with SOMETHING (especially a phone). lol For me the frustrating part is that I didn't even realize that I HAD put myself in danger because I didn't view the world though the eyes of a predator. So if ANYONE could support NOT pressing charges for rape who is like me then in my book it ISN'T rape. The person above IS correct about it being unlawful to use someone else identity for the express purpose to having sex with that person. NOT for going on dates with the person.