Rape - The different categories

TheBoyConor

Following on from a post on another thread in TGC with this question:

So as we all know, a rape can be committed in a number of circumstances
without any consent & by force and breach of a conditional consent for sex and by the latter I am talking about where a woman agreed to sex with a condom but the man didn't use one or removed it unbeknownst to the woman until afterwards. That is rape.

But I am wondering would it be considered rape if, instead of the conditional consent of a condom being used, the woman agreed to sex so long as the man assured her he had a vasectomy and so couldn't make her pregnant. Lets say the man didn't have a vasectomy but told his partner he was vasectomised and she agreed to sex on that basis. If the woman subsequently discovered that he had lied and was not vas'd , either by him telling her, her finding herself pregnant at a later time, or otherwise finding out, would a rape have occured in this scenario?

Peregrinus

If she wouldn't have consented, but for the assurance about the vasectomy, and if he knew that and gave her the assurance in order to obtain her consent, then what we have here is consent obtained by fraud. Which is no consent. So this is rape.

But for a successful conviction you'll need evidence to prove that she wouldn't have consented without the vasectomy assurance. The mere fact that she sought the assurance doesn't mean that she wouldn't have consented without it; she might instead have used contraception, for instance.

And you'll need evidence that he knew that she wouldn't have consented without the assurance. Again, the mere fact that he gave the assurance doesn't prove that he knew she wouldn't consent without it.

hullaballoo

No, it isn't rape according to the law as it stands. Fraud only vitiates consent when it goes to the nature or quality of the act. Typically, the examples given are R. v. Flattery where there was consent for a "surgical procedure" but when that consisted of intercourse, consent was nixed. Also R. v. Williams where the accused told the victim he was doing a procedure to improve her singing voice.

The most infamous case in this regard is probably R. v
Linekar where the accused agreed to pay for sex but refused after the act to pay. The Court of Appeal (England and Wales) held that she had consented to the act and consent wasn't vitiated by the fraud as the complainant understood the nature of the act to which she was consenting. The CA went further and in a non-binding part of its judgment said that if the accused had an STD and didn't communicate it, that wouldn't have undermined consent either.

Now, we've had discussions here about the STD aspect and I have said for years that it's probably endangerment but until recently, there weren't any examples of that here. However, earlier this year, a man was convicted of causing serious harm for infecting two former partners with HIV: https://www.irishtimes.com/news/crime-and-law/courts/circuit-court/man-who-infected-two-partners-with-hiv-jailed-for-ten-years-1.3577406?mode=amp

On the OP's question, as against the above, I can't see how it could be considered fraud enough to undermine consent if a man tells his prospective partner that he has had a vasectomy when he has not. It doesn't go to the nature or quality of the act in any way. Similarly, the practice of removing protection unbeknownst to the man's partner while having sex is probably not, for now, regarded as rape under the law as it stands.

Having said all that, I think it's high time these aspects are legislated for. There should be specific rape offences for misrepresentations that materially alter the consequences that would follow from the act, even if ensuring such legislation is both effective and constitutional would be incredibly difficult. I don't think the Oireachtas should continue to shy away from creating offences for new or relatively new societal phenomena simply because it's a bit tricky.

Peregrinus

hullaballoo wrote: »

No, it isn't rape according to the law as it stands. Fraud only vitiates consent when it goes to the nature or quality of the act. Typically, the examples given are R. v. Flattery where there was consent for a "surgical procedure" but when that consisted of intercourse, consent was nixed. Also R. v. Williams where the accused told the victim he was doing a procedure to improve her singing voice.

The most infamous case in this regard is probably R. v
Linekar where the accused agreed to pay for sex but refused after the act to pay. The Court of Appeal (England and Wales) held that she had consented to the act and consent wasn't vitiated by the fraud as the complainant understood the nature of the act to which she was consenting. The CA went further and in a non-binding part of its judgment said that if the accused had an STD and didn't communicate it, that wouldn't have undermined consent either . . .

There's a difference, though, beween simply omitting to mention something that you haven't been asked about, and affirmatively asserting an untruth in response to a direct question. And that difference is often crucial when considering whether a particular course of action is fraudulent.

hullaballoo wrote: »

On the OP's question, as against the above, I can't see how it could be considered fraud enough to undermine consent if a man tells his prospective partner that he has had a vasectomy when he has not. It doesn't go to the nature or quality of the act in any way.

Here speaks a man, I think!

It certainly does go to the "nature or quality" of the act. Unprotected sex between fertile partners is procreative, or potentially so, and may lead to pregnancy. Sex with a partner who has been sterilised and so is infertile is not procreative and cannot lead to pregnancy. That's a huge difference. (Which is precisely why, in the hypothetical in the OP, the woman has asked the question.)

hullaballoo

I don't know of any cases where the consequences of the act go to whether or not consent can be given. That's the crucial point - the law looks at the circumstances immediately surrounding the act itself when it comes to the offence of rape.

My gender has nothing to do with appraising the law and if I wasn't clear enough in my initial reply, I believe the law as it stands is incorrect for societal purposes, which is what it's supposed to be for, and needs to be updated drastically.

I've given the authorities that support what I say the law would make of the circumstances put forward by the OP. I am not a criminal law practitioner however and I do not know if things have changed meaningfully in respect of redefining what constitutes fraud sufficient to vitiate consent but that is what must have happened if your analysis is correct, Peregrinus.

sexmag

Peregrinus wrote: »

There's a difference, though, beween simply omitting to mention something that you haven't been asked about, and affirmatively asserting an untruth in response to a direct question. And that difference is often crucial when considering whether a particular course of action is fraudulent.


Here speaks a man, I think!

It certainly does go to the "nature or quality" of the act. Unprotected sex between fertile partners is procreative, or potentially so, and may lead to pregnancy. Sex with a partner who has been sterilised and so is infertile is not procreative and cannot lead to pregnancy. That's a huge difference. (Which is precisely why, in the hypothetical in the OP, the woman has asked the question.)

In the Reverse can the man be considered to have been "raped" if his potential partner had told him she was on birth control but was not, if it could be proven he would not have consented to sex if she wasnt on said birth control?

hullaballoo

hullaballoo wrote: »

the practice of removing protection unbeknownst to the man's partner while having sex is probably not, for now, regarded as rape under the law as it stands.

There was a male convicted of rape here in Ireland with this exact circumstance. Pretty sure he was convicted of rape.
Recently I think

Captain_Crash

bubblypop wrote: »

There was a male convicted of rape here in Ireland with this exact circumstance. Pretty sure he was convicted of rape.
Recently I think

I'm still only studying law so don't claim to have the level of knowledge as some people on this forum, but we covered this topic in great detail last year. The case you are referring is likely a Swiss case from last year. The rape conviction was overturned and he was instead convicted of "defilement".


With regards to the OP's question, I don't believe it has been tested in Ireland, but I cant imagine its not rape as its quite clear that consent was obtained via deception, which is fraud. Thus making the consent invalid. Again, I don't practice and am still studying law so others may view it with a lot more experience and knowledge than I.

Captain_Crash

sexmag wrote: »

In the Reverse can the man be considered to have been "raped" if his potential partner had told him she was on birth control but was not, if it could be proven he would not have consented to sex if she wasnt on said birth control?

Men cant be "raped" in Ireland per se. Although there is S.4 Sexual Assault which should cover any instance of a man not providing consent which would be rape were the victim a woman.

sexmag

Captain_Crash wrote: »

.With regards to the OP's question, I don't believe it has been tested in Ireland, but I cant imagine its not rape as its quite clear that consent was obtained via deception, which is fraud. Thus making the consent invalid. Again, I don't practice and am still studying law so others may view it with a lot more experience and knowledge than I.

There was a thread a while back, i believe i stated it regarding providing people with false information regarding yourself with the clear intention of sleeping with them, is that deception considered rape if the person was found to be 100% not who they claimed to be and/if the person became pregnant, i think it will fall under your comment here

Peregrinus

hullaballoo wrote: »

I don't know of any cases where the consequences of the act go to whether or not consent can be given. That's the crucial point - the law looks at the circumstances immediately surrounding the act itself when it comes to the offence of rape.

I'm not talking about the consequences of the act. Whether pregnancy does in fact result from the act would be a consesquence, but whether pregnancy is capable of resulting from the act would be a quality or characteristic of the act itself.

hullaballoo wrote: »

My gender has nothing to do with appraising the law . . .

That was intended to be light-hearted. My apologies if that didn't come across.

hullaballoo wrote: »

I've given the authorities that support what I say the law would make of the circumstances put forward by the OP. I am not a criminal law practitioner however and I do not know if things have changed meaningfully in respect of redefining what constitutes fraud sufficient to vitiate consent but that is what must have happened if your analysis is correct, Peregrinus.

I think, actually, our positions are quite close. There has undoubtedly been a dishonest deception by the man if, when asked if he has had a vasectomy, says "yes, I have". And lets assume for the purposes of the discussion that he knows - because, perhaps, she has said this - this is a necessary condition of her consenting to have sex with him.

The only thing that remains is whether the presence or absence of the possibility of pregnancy is a fundamental quality of the act, such that fraud on that point vitiates consent to the act. I would argue that it is, but I freely admit that I don't think we have jucicial authority on the point.

GM228

We had an interesting thread previously (dealing with STDs) but touching on consent which the OP may find interesting.

https://www.boards.ie/vbulletin/showthread.php?p=101377725

Captain_Crash

Captain_Crash wrote: »

I'm still only studying law so don't claim to have the level of knowledge as some people on this forum, but we covered this topic in great detail last year. The case you are referring is likely a Swiss case from last year. The rape conviction was overturned and he was instead convicted of "defilement".


With regards to the OP's question, I don't believe it has been tested in Ireland, but I cant imagine its not rape as its quite clear that consent was obtained via deception, which is fraud. Thus making the consent invalid. Again, I don't practice and am still studying law so others may view it with a lot more experience and knowledge than I.

https://www.irishtimes.com/news/ireland/irish-news/man-jailed-for-raping-woman-over-refusal-to-wear-condom-1.3425186

also, deception doent automatically mean fraud, nor does it make consent invalid.
for example, if a man tells me he is an unmarried doctor, looking for love/a wife, & I sleep with him based on that knowledge, it turns out he is actually an unemployed married man, that does not make my consent for the act of sex, invalid.

TheBoyConor

My thinking would be that him misrepresenting himself to you by saying he is an unmarried doctor looking for love would not vitiate the consent because as previously covered it does not alter the nature and quality of the act. ie, whether he is a handsome doctor or a married bin-man would not have affected whether or not he could have got you pregnant or passed on an STD. However, the fact or having had/not had a vasectomy could have real world physical consequences if a pregancy were to result so in that instance I would feel that consent was nullified.