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