A pressures B into having sex with C, who committed rape?

Question

In france, rape is defined by sexual intercourse in the absence of enlightened consent given without (...) force or menace.

Abel pressures, menaces or whatever Bob to force him to have sex with Cindy and to tell her he consents to it. Sex did take place without consent being freely given by Bob. Sex is done to Bob by Cindy without his consent, but Cindy is not aware of that, and did everything the law could reasonably ask of her : verify the age of the partner and ask for consent. Abel is responsible for (morally at least, and is the at the cause of) the consent being coerced.

Who, if anyone, committed rape ? Is it Abel who didn't have sex, or Cindy who didn't know about anything ?

I'm interested in how this would be solved in the french system or in systems where the rape laws are conceived similarly. Also, please don't take the gender of my imaginary protagonists into account.

Answer 1

new-south-wales

There is no crime of rape in NSW although the word is still colloquially used. It was abolished by s80AD of the Crimes Act in 2002 and replaced by a number of more discreet statutory offences.

Let’s start with the easy bit: Bob did not consent to the sexual activity because s61HJ(e) states that consent given under force or fear is not consent.

s61HK deals with knowledge of lack of consent. A person knows there is a lack of consent if they actually know there is a lack of consent (so Able knows), they are reckless about consent, or a belief that there is consent is unreasonable. On the facts as stated, Cindy does not know there is a lack of consent.

NSW law recognises three broad types of sexual crimes: sexual assault and assault with intent to have intercourse, sexual touching, and sexual act. “Sex” as used in the question probably means sexual assault.

Cindy is not guilty of sexual assault because she lacked knowledge of the lack of consent.

Bob is not guilty of sexual assault because he had Cindy’s consent.

Able is guilty of Causing Sexual Servitude under s80D for causing Bob to enter sexual servitude as defined in s80B if he used threats - which the question hints at but is not specific about. “Pressure” may or may not involve the use of threats; “menaces” seems like it does. If convicted, Abel can be imprisoned for up to 15 years or 20 years if there were circumstances of aggravation (Bob or Cindy were under 18 or cognitively impaired).

Answer 2

My hypothesis is that it would be like underage sex, where not knowing is not considered an excuse (for Cindy in this case). In that case, Abel could fall for complicity to commit the crime and be convicted to a heavier sentence than Cindy, who could be granted alleviating circumstances.

But I have no factual grounds to support that. Sources or contradictory theories would be much appreciated.