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consent dissertation
Criminal Law (LW2220)
University of Leicester
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Leicester Law School
LW3360 Dissertation
2021-
How far does deception go before consent is
vitiated?
Dissertation in Law
Student number: 189007297
27
th
April 2022
Word count: 9967
Table of Contents
1. Abstract................................................................................
2. Introduction............................................................................
- Abstract................................................................................
- Introduction............................................................................
- deception.............................................................................................................. 3. Chapter 1: Dealbreakers and their impact on consent vitiating - Deal Breakers .................................................................................... - The Lenient Thesis............................................................................... - Gradable Voluntariness Theory................................................................ - .............................................................................................. Monica
- Chapter 2: The impact of Lawrance and the need to reform the law...
- The impact of Lawrance .....................................................................
- McNally ........................................................................................
- Inconsistencies since the 2003 enactment .................................................
- Chapter 2: The impact of Lawrance and the need to reform the law...
- Chapter 3: Reforms to mitigate inconsistencies within section 74 and
- Conclusion...........................................................................
- Table of authorities..................................................................
- Bibliography........................................................................
Introduction
The current law on consent and deception is governed by sections 74-76 of the Sexual Offences Act (SOA) 2003, which replaced the Sexual Offences Act 1956. This was due to previous law being considered archaic and not accurately reflecting changes in societal attitudes. 1 Sections 74 and 76 were designed to offer clarity on when consent can be vitiated and what types of deception will be enough to vitiate consent. However, recent case law, such as Lawrance 2 , McNally 3 and R v B 4 , leave questions as to how much clarity really was offered within this updated act. Section 74 defines consent as ‘a person consents if he agrees by choice and has the freedom and capacity to make that choice.’ 5 Section 76 covers conclusive presumptions stating that deception ‘as to the nature or purpose of the relevant act’ or ‘impersonating a person known personally to the complainant will be enough to negate consent.’ 6 Deception is generally recognised as D(defendant) intentionally causing V(Victim) to believe something false (x) and D knows or believes that X is false, or at least does not believe that X is true. 7 Deception can include a situation where V was unaware that the intercourse was taking place such as medical procedures being misrepresented to them. It can also occur in situations where V is fully aware that intercourse is taking place but is being deceived as to a physical aspect such as not wearing a condom, disease, or intention to ejaculate during penetration; or a material aspect such as an attribute of D which could be their occupation, religion, marital status, beliefs etc. Autonomy is the general consensus that a person should be able to decide both who and how someone touches their body and is essentially a fundamental right that a person can exercise control over their own being. 8 Sexual autonomy stretches within a remit that demands acknowledgement and state protection if this core fundamental value is infringed upon. 9 According to Jonathan Herring, the language of autonomy can be used to explain the role of
consent and decisions made by individuals should respected by others unless those decisions involve harming another. 10 Deception ultimately violates a person’s sexual autonomy because lying or failing to inform means V’s objectives are not pursued but D’s are. 11 Section 74 SOA highlights that a person “consents if he agrees by choice” but if it is not possible for a person to make an informed choice as they do not have the relevant information that is vital to that decision, then can it be said that a person has truly consented? This means that a line must be drawn as to what constitutes an infringement of a person’s sexual autonomy and what is just an everyday lie that is relatively shameful but not necessarily deceptive; essentially giving other people the power to decide what justifiably infringes upon another person’s autonomy.
1 Rebecca Williams, ‘A further case on obtaining sex by deception’ 183 (2021) LQR 188 2 R v Lawrance [2020] EWCA Crim 971 3 R v McNally [2013] EWCA Crim 1051 4 R v B [2007] 1 WLR 1567 5 Sexual Offences Act 2003 s. 6 Sexual Offences Act 2003 s (2)(a) and (b) 7 Matthew Gibson, 'Deceptive Sexual Relations: A Theory Of Criminal Liability' (2019) 40 Oxford Journal of Legal Studies. 8 Scheidegger N, “Balancing Sexual Autonomy, Responsibility, and the Right to Privacy: Principles for Criminalizing Sex by Deception” (2021) 22 German Law Journal 769 9 ibid 10 Jonathan Herring, 'RAPE AND THE DEFINITION OF CONSENT' [2014] 26(1) National Law School of India Review 66 11 David A. Strauss, 'Persuasion, Autonomy, and Freedom of Expression' [1991] 91(1) Columbia Law Review 355
Within the first chapter, I will critically analyse some academics theories and commentaries on what is believed to be consent vitiating deception. This mainly focusses on the theoretical side of deception and those deceptions that are not prosecuted by the courts. This chapter also acknowledges that it is difficult to distinguish between whether all violations of sexual autonomy involving deception should be enough to vitiate consent or whether there must be distinctions made to prevent over-criminalisation. The second chapter follows this idea by reviewing case law that hasn’t been enough to vitiate consent but should’ve been based upon the wording of sections 74 and 76, and prior prosecutions made for similar offences. This summarises what the law currently considers vitiating consent and advances on the idea that there is a need for reform to clarify the inconsistencies within the SOA and case law. This leaves the third chapter, which analyses what those reforms may look like and how this will help to clarify how far deception goes before it will vitiate consent under the Sexual Offences Act 2003.
who many would not judge to be sufficiently culpable to be labelled a rapist. 18 Herring offers a theory that is similar to both Dougherty’s and Rubenfeld’s ideas in which he says that consent ought to be vitiated whenever V is mistaken as to a fact and would not have consented to the sexual activities had they known the truth about the fact in circumstances where the defendant was aware of the same. 19 All 3 of these academics share the similar idea that if a person has a particular dealbreaker, even if that dealbreaker is not closely connected to the act itself, it should be enough to vitiate consent if V would’ve refused to have sex had she known of this dealbreaker.
The Lenient Thesis...............................................................................
The Lenient Thesis states that it is only a ‘moral wrong’ to deceive another person into sex by misleading them about certain personal features such as natural hair colour, occupation, or romantic intentions. 20 The theory does accept that morally it is wrong to deceive someone into sex but the wrong is so insignificant that it is not sufficient to invite any criminal sanction let alone being labelled as rape. The thesis offers more clarity within law as it recognises deception is wrong but what information a person is being deceived as to is not always necessarily seriously wrong. For example, if a person was to lie about their profession to sleep with someone, V may not feel as though they had not consented, but the deception was immoral nevertheless, although not enough to vitiate consent. It would be difficult to refer to a person withholding information as non-consensual sex as the lack of information given about a person’s attributes doesn’t relate to sex itself. For example, if a woman were to be wearing a wig and a deal breaker for her sexual partner is that they do not want to sleep with someone who wears wigs, Dougherty and Wertheimer essentially suggest that a person’s sexual autonomy is more important than other autonomy. It would be fair to suggest that if a piece of information does not harm or change the nature or purpose of the sexual act, another person should be entitled to privacy in withholding this information to prevent violation of their vulnerability. 21 The sensitivity of this subject for the potential deceiver will then be justified by the Lenient Thesis and its ability to balance the need for respect for autonomy. Jubb supports this by clarifying that dishonesty may be warranted as intimacy for some may only be attainable when someone is insincere in certain circumstances due to the level of vulnerability sex involves. 22 When sleeping with a stranger or someone you may not know much about, you accept a risk that as you have little or no idea who they are, they can fabricate attributes of themselves in order to suit the needs you may be verbalising. The Lenient Thesis therefore has the capacity to defend one off sexual encounters that involve deception over something trivial and unrelated to the act as it is unfair to expect a person to disclose their biggest insecurities to a stranger. People do not necessarily need to be aware of the whole truth for the relationship not to be exploitative or wrongful. Dougherty claims that these reasons mean the Lenient Thesis rests on an “objectionably moralized conception of sex” and that this skews our view on sexual morality as it creates common assumptions that some reasons are good reasons for deciding not to have sex but others are not. 23 On face
18 Jed Rubenfeld, 'The Riddle Of Rape-By-Deception And The Myth Of Sexual Autonomy' (2013) 122 Yale Law Journal. 19 Jonathan Herring, 'Mistaken Sex' [2005] Criminal Law Review <papers.ssrn/sol3/papers.cfm? abstract_id=1287130> 20 Daryl Ross smith, 'Sex, Deceit and the Major Role of Consent' (Oakwood Solicitors, 3 September 2019)<oakwoodsolicitors.co/knowledge/sex-deceit-and-major-role-of-consent/> 21 Robert Jubb, 'Consent And Deception' (2017) 12 Journal of Ethics and Social Philosophy. 22 ibid 23 Tom Dougherty (n 11)
value, this is what the Lenient Thesis does as it protects one person or the others autonomy which is mostly inevitable and sometimes necessary for the safety of people’s vulnerability. Dougherty also says that it is up to each individual to determine which features of a sexual encounter are particularly important to her and so surely for that reason, 24 a person should be able to withhold information they would not be comfortable with their sexual partner knowing if it isn’t related to the nature of the act.
Gradable Voluntariness Theory................................................................
When a lie is so far removed from the act itself such as occupation or relationship status, it would almost be irrational to suggest a person’s consent had been vitiated through a trivial lie. Manson defends this idea through the idea of a gradable voluntariness theory 25. The idea of a lie being enough to violate a person’s sexual autonomy is very much one that is reasonable but essentially it relies on objective rationality as to what can be considered non- consensual. This theory is based on the idea that deal breakers can be graded as either weak or strong. The gradable voluntariness theory offers rationality as to this moral dilemma to combat Rubenfeld’s and Dougherty’s ideas that all deception will vitiate consent. Feinberg defends the gradable voluntariness theory by saying that ‘there is a spectrum of voluntariness corresponding to variations in the fraudulently produced inducement to consent’. 26 This, on face value, will seem unfair that a person cannot decide if something considered trivial will invalidate consent, but the gradable voluntariness theory allows for what will objectively be considered rational or irrational in whether it should vitiate consent or not. The argument for this is that there is a contrast between relevant and irrelevant information as it is widely held that some kinds of deception such as lying about what type of pets a person likes do not undermine the moral force of consent but lies about other types of deception such as impersonating a professional or a person’s partner will obviously undermine consent. 27 The Gradable Voluntariness theory puts Dougherty’s idea of a Lenient Thesis into working practice as Doughterty’s idea doesn’t make allowances for the fact that there is and should be a distinction between deal breakers in order to avoid those deceiving a sexual partner about fertility and those deceiving a sexual partner about a preferred band being put into one category. There is a clear distinction between strong and weak deal breakers and whether it is harmless or malicious and damaging. The Gradable Voluntariness theory holds that not all deception into consent to sex invalidates the consent so given. 28 This means it accepts that lying and fabricating the truth is deception but doesn’t believe deception considered to be a weak deal breaker will be enough to invalidate consent. However, there is a line drawing problem here as to what will effectively constitute a weak or strong deal breaker. Archard offers a solution to this problem in suggesting that the information the consenter needs to know is “only everything that would make a real difference to whether or not she consented”. 29 It would be fair to suggest that deception about a weak deal breaker such as maybe hair colour or if a person finds you funny will not be enough to vitiate consent due to previously stated reasons of vulnerability. It would also be correct to suggest that if a person has a strong deal breaker and their sexual partner is reasonably aware of this, if they are then deceived as
24 Ibid 25 Neil Manson, 'How Not to Think about the Ethics of Deceiving into Sex' [2017] 2(127) Ethics 14 26 Joel Feinberg, 'Victims' Excuses: The Case Of Fraudulently Procured Consent' (1986) 96 Ethics. 27 Neil Manson (n 24) 28 ibid 29 David Archard, Sexual Consent (1st edn, Routledge 1997).
“broad common sense way” and lies such as the one here about a person’s occupation will not be enough to vitiate consent. 37 It is clear here that under case law, the courts are not willing to criminalise deceptions relating to the characteristics of a person as it runs the risk of unfair labelling and over-criminalisation which could be seen as restrictive but is on a common sense approach in that lies that do not relate directly to the act of sex should not be sufficient enough to vitiate consent as everyone runs the risk of being prosecuted. Amit Pundik holds a view that is like Herring and Tom Dougherty in that he believes deception should be extended to include any characteristic that the deceiver was aware was conditional. 38 As mentioned previously, this wouldn’t be viable as it would criminalise any deception that a person considers conditional or a dealbreaker as Dougherty puts it. By suggesting criminalising any characteristic that may be conditional, it leaves room for completely unrelated conditions to the act of sex such as the one in Monica, leading to unfair labelling. There needs to be clear boundaries so the law has clarity which the closely connected test attempts to do and although Monica involves deception, it would not be fair to criminalise a person’s actions over something entirely unrelated to the act of sex itself. The Divisional Court in Monica held that certain deceptions will be capable of vitiating consent but are limited to those set out in section 76. 39 If a person understands the physical nature of the act and isn’t deceived as to anything about the physical nature, it is difficult to say the deception has vitiated consent as the act in its entirety has been consented to. 40 The autonomy of these women had not been limited as stated by the House of Lords, they consented to sex with this person at this time in this place. 41 This means it is actively recognised in law that not all dealbreakers will be capable of vitiating a person’s consent. Herring acknowledges that the law is reluctant to criminalise the use of deception in sexual relations but also reminds his reader that the court is openly willing to admit that a person would not have consented had they known the truth in cases such as Lawrance. This means Herring is disputing a point as to why the court will readily admit an act is deception and had the victim known the truth, they wouldn’t have consented, but they are unwilling to prosecute such cases. 42 Wertheimer attempts to explain this by suggesting many people do not think lies about occupation and marital status are particularly serious. 43 If the courts were to utilise the theories of Herring and Dougherty, the test for deception would be entirely subjective, meaning any deception would be capable of vitiating consent which is not workable as it leaves no boundaries under what will be criminalised. Most deceptions wouldn’t necessarily fall under section 76 meaning section 74 is used instead under which a person must be making a free choice. If Herring and Dougherty’s ideas were put into practice, it would mean this no longer made sense because if a person is deceived as to someone’s marital status, occupation, beliefs etc, they are still consenting freely to the act of sex with the person in front of them. This idea of a subjective text would fundamentally alter consent law giving no clear definition of when boundaries have been crossed.
37 ibid 38 Amit Pundik, 'P8. DECEPTION ABOUT WHAT? SUBJECTIFYING THE CRIMINALISATION OF DECEPTIVE SEX' (Criminal Law Reform Now Network 2021) <clrnn.co/publications-reports/> 39 Caroline Derry, 'P1. SUSTAINED IDENTITY DECEPTIONS' (Criminal Law Reform Now Network 2021) <clrnn.co/publications-reports/> 40 ibid 41 Carole McCartney and Natalie Wortley, 'Under The Covers: Covert Policing And Intimate Relationships' [2018] Criminal Law Review. 42 Jonathan Herring, 'P5. CONSENT MISTAKEN' (Criminal Law Reform Now Network 2021) <clrnn.co/publications-reports/> 43 Alan Wertheimer, Consent to Sexual Relations (Cambridge University Press 2003 ) 199
victims consent under section 74 as V was incapable of making a free choice which is a question to be determined by the jury. Section 76 was not relied on here as it was considered the deception did not relate to the nature or the quality of the act. Similarly in R(F), the victim imposed a condition that the defendant (D) would not ejaculate inside the victim in which he did so anyway, and the court relied on the Assange ruling and section 74 to show the victim was deprived of free choice negating her consent. It could be argued that here all 3 of these cases should and could fall under both section 76 and section 74 as they relate to the nature and quality of the act and restrict a person’s freedom in terms of not being able to give informed consent. When allowing the appeal in Lawrance, the Lord Chief Justice, Mrs Justice Cutts and Mrs Justice Tipples stated that Lawrance was unlike Assange as V agreed to intercourse with Lawrance without imposing any physical restrictions and the deception did not relate to the physical performance under section 76 but the risks or consequences associated with it. 52 This is where the difficulty lies as it is very much arguable that the physical restriction imposed was the vasectomy itself which V had been reassured existed and was conditional to her agreeing. The court here provides very little guidance as to where the line is between what is “so closely connected” and one which is a broader circumstance surrounding it as the distinction seems very subtle. All 3 cases mentioned before sought to prevent fertile ejaculate from entering the vagina which is considered by the courts to be “closely connected” to the act of sex itself. The court stated that V agreed to both penetration and ejaculation without the protection of a condom. This is true but she did not agree to the ejaculate being fertile therefore being deceived as to the nature of the act as the physical restriction imposed. V was reassured repeatedly that the vasectomy was pre-existing, with the aim of preventing pregnancy and had she been aware D hadn’t had a vasectomy, she would have imposed a physical restriction such as a condom. V here was consenting to sex that was merely recreational and not sex that had the intention of being procreational. Contrary to Lawrance’s arguments, V did not consent to every aspect of the physical act as she sought assurance that he was fertile with a vasectomy being a condition meaning she was avoiding this aspect of the physical act which was the ejaculate containing fertile sperm. 53 This makes the Court of Appeal’s judgment unconvincing. Dyson defends this argument by saying that the “so closely connected” test in Monica has been applied unevenly as it creates as claim that ejaculate with fertile sperm is not physically different to that without it. 54 Although Herring’s idea of when deception can vitiate consent can go too far as seen previously, he is correct in suggesting that for this reason the courts have not been very clear as to what is considered to be a significant matter. 55 This raises questions as to whether the courts have correctly interpreted the test in Monica or whether they are being far too narrow in their judgments. Palmer rightly points out that there should be a freedom to negotiate these terms and Lawrance constrained V’s freedom of choice by providing false information which consequently prevented the use of a condom. 56 The idea of ‘freedom to negotiate’ stems from Palmer’s redraft of section 1 SOA 2003 in which resides on the point that a person should
52 Ibid 53 Isabella Glendinning, 'Should Mistaken Consent Still Be Consent? In Defence Of An Incremental Understanding Of Consent In The Sexual Offences Act 2003' (2021) 85 The Journal of Criminal Law. 54 Matthew Dyson ‘P3. REDEFINING SEXUAL CONDITIONS’ (Criminal Law Reform Now Network 2021) <clrnn.co/publications-reports/> 55 Jonathan Herring, 'P5. CONSENT MISTAKEN' (Criminal Law Reform Now Network 2021) <clrnn.co/publications-reports/> 56 Tanya Palmer, ‘P7. FREEDOM TO NEGOTIATE’ (Criminal Law Reform Now Network 2021) <clrnn.co/publications-reports/>
have their freedom to negotiate their participation in the penetration and/or touching. 57 In all three cases, the victim’s ability to make an informed choice about the use of contraception was deliberately removed by the defendants deception and therefore removing their freedom to negotiate the terms of the act.
McNally ........................................................................................
There have been several cases which may take away a person’s ‘freedom and capacity’ to consent as seen above. Controversially, it has been held that gender deception can also vitiate consent as confirmed in the case of McNally. 58 The court ruled that this deception had to be approached in a “broad common-sense way” in that the sexual nature of the act is different if a person is sleeping with a biological woman who they think is a man. 59 The facts of the case are that Justine McNally formed an online relationship with another girl under the persona of Scott who was a boy. Both parties were aged 12 and 13 when the online relationship began with both engaging in online chat for 3 years. After V’s 16th birthday, McNally visited her in London at her home on four separate occasions, engaging in sexual intercourse using a strap on dildo and digital penetration, with McNally keeping her clothes on and remaining in the dark during. V had previously mentioned to McNally that she had brought condoms for the occasion which shows that there was a clear impression to V that McNally was biologically male. It was only after V’s mother discovered McNally’s true identity when it all stopped. 60 The consequence of McNally is that trans people may feel forced to disclose their gender history, but it is also a person’s prerogative to decide what gender they have sexual relations with. A similar issue within section 76 as seen in the Lawrance case also arises here in which the courts claimed section 76 does not apply to the facts of McNally, in which arguably it does. 61 Firstly, the penetration with a strap on dildo and not an actual penis fundamentally alters the nature of the act as what V was penetrated with is entirely different to what she expected. The question here is whether biological gender deception deceives the victim as to the nature of the act or their ability to choose freely in which arguably it is both. This somewhat aligns with the same issues with the calls for reform in Lawrance as section 76 hadn’t been relied upon despite the nature and purpose of the act being altered and different. To protect sexual autonomy, it is paramount that people have a free and informed choice as to the gender of the person they will be sleeping with as everyone is entitled to their own preferences in a sexual partner. As McNally presented as a male and allowed V to believe and enforced beliefs that she was biologically male, the deception is active and not a mistake as to gender that went uncorrected as V believed she was choosing to have sexual encounters with a boy. Justice Patrick in the case of McNally, described the deception as for McNally’s “gain and their own gain” as McNally will have been aware that V would not consent if she knew the truth. 62 This is evident where McNally felt it necessary to keep the lights off and clothes on, and discuss buying condoms which alters the purpose of the act as sexual gratification but simply for herself alone. It would be difficult to suggest in this case that McNally took all the reasonable steps to gain the victims fully informed consent as the relationship was marred with lies from the very beginning. Gavin Doig states that by expecting V to have asked the
57 Ibid 58 McNally (n 2) 59 ibid 60 ibid 61 Penelope Childs, '‘Gender Fraud’ Where Do We Go From Here?' (2016) 8 The Plymouth Law & Criminal Justice Review <pearl.plymouth.ac/handle/10026.1/9044> 62 Amanda Clough, 'Conditional Consent And Purposeful Deception' (2018) 82 The Journal of Criminal Law.
It would be incorrect to say that trans people shouldn’t have a duty to disclose their gender because then consent given by a person will not be a free and informed choice and will be capable of negating consent as it infringes upon a person’s sexual autonomy and prerogative for preference. Herring shares this idea that a right to sexual autonomy outweighs a right to private life as deception has the capacity to be far more distressing than disclosure. 74 Herring’s proposed model works here as it protects individuals from gender deception like this but he does acknowledge there is an imposition on the right to privacy of trans people which may be a necessary evil in order to protect a person’s right to make a free and informed choice without the nature and purpose of the act being altered. 75 The CPS themselves have stated that gender deception will be judged on a case by case basis with reference to the general public interest test which give provisions where prosecutions against trans people will be given careful consideration. 76
Inconsistencies since the 2003 enactment .................................................
The lack of clarity and guidance given by judges in case law on how sections 74 and 76 should be interpreted has been an issue since before Lawrance. With Monica being discussed previously, it is clear deceptions such as ones concerning beliefs, marital status, occupation etc, are not enough to vitiate consent. However, other types of deception such as the one seen in R v B where D failed to mention he was HIV positive are also not enough to vitiate consent according to the law. Although this is somewhat different to Assange, Lawrance and R(F), the principle is still the same in that D confiscated V's free choice by not revealing this potentially fatal, if untreated, disease. 77 The court here felt that this was not relevant under section 76 but arguably it has every relevance as V consented to sex but not sex with a risk of contracting a potentially life changing virus as D was aware he had the HIV virus. 78 Arguably, the deception here poses a much bigger risk to V than the potential risks associated with the acts in the successfully prosecuted Assange and R(F). If it is a person’s prerogative to be able to impose physical barriers such as condom use without removal and not having someone ejaculate inside them, it is a person’s prerogative to be able to actively choose whether to risk contracting HIV instead of someone choosing for them. Even by using a condom, this method of protection is not always full effective and so it is only fair and just that a person has full control over whether to engage in this risk or not. What Lawrance did for cases like R v B was highlight how incoherent the law can be and calling into question whether the outcomes were the rights ones. Lisa Charkassky argues that Lord Latham in R v B is correct in saying that V did not consent to the disease but did consent to the intercourse. 79 On face value, this is true and the same could be said for cases like Assange in that they consented to the intercourse but not a physical feature of it, however, here the intercourse involved HIV which alters the dynamic of the situation. This means that the victim did not in fact consent to the sex freely as HIV was a characteristic V was not aware of and so would’ve altered her freedom of choice as there simply wasn’t a choice to
74 Herring, Jonathan J. W., Mistaken Sex (2005). Criminal Law Review, pp. 511-524, 2005, Available at SSRN: ssrn/abstract= 75 Ibid 76 Samantha Pegg, 'Guilty Verdict In Sex Deception Case May Be Bad News For People Transitioning To A New Gender' <theconversation/guilty-verdict-in-sex-deception-case-may-be-bad-news-for-people- transitioning-to-a-new-gender-47617> 77 Lisa Cherkassky, 'Being Informed: The Complexities Of Knowledge, Deception And Consent When Transmitting HIV' (2010) 74 The Journal of Criminal Law. 78 ibid 79 ibid
begin with. Spencer supports this idea by saying that when consenting to a risk of infection, V must have all the facts and not just suspect the facts. 80 The principle remains the same in that if it is enough to vitiate consent by not telling a person about a condom removal, then it should be enough to vitiate consent when not disclosing a HIV or fertility status. By allowing the conviction in R v B to be quashed, it places a burden on the victim to seek out facts they should already have access to. Similarly, in Lawrance, it places a significant burden on victims to be cynical to prevent being deceived such as being heavily doubtful of their sexual partner. This ambiguity surrounding section 74 that the courts have created when interpreting has led to academic Mark Dsouza creating what is known as the “disjunctive approach” 81 which is like Herring’s idea in which any false belief no matter how trivial will be enough to vitiate consent. Dsouza acknowledges here that not every deception will vitiate consent unlike Herring’s theory. 82 This theory has the potential to go too far like Herring and over criminalise which is why if it was more refined to deceptions of core features that cause unwanted physical consequences such as HIV and pregnancy, and deceptions that relate directly to the act, it would have the capacity to provide a logical and convincing argument. Dsouza does point out a crucial point that courts have attempted to solve this issue of a line drawing distinction but fails to do so in cases such as Lawrance and R v B as they are hesitant to go beyond existing authority which just creates inconsistent law-making and judgments that will not accurately reflect societal opinions. 83 This means that the original aim of enacting the SOA 2003 to reflect changing attitudes simply isn’t happening. Kennedy offers a different take in that she says HIV deceptions should count as well as deceptions leading to pregnancy as they can lead to identity non-recognition. Kennedy claims that the consequences of HIV transmission and unwanted pregnancies can entail a fundamental shift in identity which should be enough for these deceptions to vitiate consent. 84 On face value this seems fair as it is also going to impact public health as well as mental
health. However, this argument alone is not convincing enough to justify why these deceptions should be criminalised as the same identity shift could be said for other types of deceptions and how they also might be capable of altering a person’s identity. Palmer offers a more disagreeable take surrounding the cases, in which there is a clear agreement amongst academics, that Lawrance did in fact prevent V from making a free choice by not providing correct information. 85 This, Palmer agrees with, but goes the opposite way to Kennedy and Dsouza suggesting that it is only deception vitiating consent in HIV cases if a person has a detectable viral load and purposely conceals it but consent will not be vitiated if a person claims to be HIV negative and is actually positive with an undetectable viral load. There are far too many line drawing distinctions here making it incoherent as this means cases would have to be judged on a case-by-case basis offering no clarity to the law. A person lying about an undetectable viral load will still rob a person of free choice and implies intent and regardless, it would be better suggested for clarity that where D knowingly deceives V as to a risk of contracting HIV, consent will be vitiated. This situation is one in which section 76 would be correct in saying it isn’t closely connected to the act and in section 74 in saying she had freedom of choice. The deception here was not at all relevant to the act or consequences and so will not be enough to vitiate consent. Palmer justifies her reasoning
80 JR Spencer, ‘Sex by Deception’ (2013) 9 Arch Rev 6, 8– 81 Mark Dsouza, ‘P2 FALSE BELIEFS AND CONSENT TO SEX’ (Criminal Law Reform Now Network 2021) <clrnn.co/publications-reports/> 82 Ibid 83 ibid 84 Chloe Kennedy ‘P6. SEX, SELFHOOD AND DECEPTION’ (Criminal Law Reform Now Network 2021) <clrnn.co/publications-reports/> 85 Palmer (n 55)
5. Chapter 3: Reforms to mitigate inconsistencies within section 74 and
To mitigate inconsistencies presenting themselves within case law and to provide more clarity on the definition of consent, it has been widely suggested that reform of sections 74 and 76 87 would be a good option. It is clear when reviewing case outcomes such as those in Lawrance 88 and R v B 89 that consent should have been considered vitiated but due to the way the law is interpreted, they are in fact cases that escaped prosecution under the Sexual Offences Act (SOA) 2003. One of the proposed reforms has been enacting a more updated version of section 3 contained in the Sexual Offences Act 1956 which criminalises procuring sex by false pretences. Section 3 SOA 1956 states that ‘it is an offence for a person to procure a woman, by false pretences or false representations, to have unlawful sexual intercourse.’ Immediately, it is obvious that there are issues with this such as the gender imbalance with the wording being exclusive to women and not both genders. 90 This law is evidently outdated as it is clear the law perceives victims to be the vulnerable woman and not the vulnerable person, showing there is little room for men to suffer the same fate even though they can and do. 91 This offence is generally quite broad which can risk criminalising those who haven’t committed a crime as the likes of Linekar 92 would fall under this section. In re-enacting this offence in a more modernised way, it would contradict the intention of the Law Commission when they enacted the SOA 2003 to make the law as clear as possible and clarifying the definition of consent as seen in Setting the boundaries 93. By re-enacting a broad offence this would lead to less clarity and a widely interpreted definition of consent. An updated version of this offence would then involve substantial narrowing to provide this clarity which arguably would be mirroring section 74 in terms of the fact offences caught under this new section would be caught under section 74 anyway. There is also a risk, as mentioned previously, that deceptions such as the ones seen in Monica 94 and Linekar which are arguably not connected to the act of sex itself but rather circumstances surrounding the act, being liable under section 3. This means deceptions not worthy of criminalisation could then be prosecuted potentially resulting in over-criminalisation and somewhat bringing the law into disrepute. Spencer argues that a re-enactment will fill a gap and avoid over-criminalisation but as seen here, it is likely this will do the complete opposite. 95 Academics such as Herring, Dougherty and Dsouza would argue, like Spencer, that a re- enactment is necessary for these exact reasons and to catch the lesser deceptions seen in Linekar and Monica, but this is not a practical solution for a problem that demands clarity and line drawing distinctions. By making any deception liable to be prosecuted, the law will become vague in this area and the definition of consent could then end up being particularly subjective and so judicial guidance could suffer as a result. As section 3 was not often used anyway, it is not a feasible option to re-enact it or insert an updated version.
87 Sexual Offences Act 2003 s 74 and 76 88 Lawrance (n 1) 89 R v B (n 3) 90 Catarina Sjolin, 'Ten Years On: Consent Under The Sexual Offences Act 2003' (2022) 79 The Journal of Criminal Law <journals.sagepub/doi/10.1177/0022018314566744> 91 ibid 92 R v Linekar [1995] 2 Cr App R 49 93 Setting the Boundaries: Reforming the Law on Sex Offences, Vol. 1 (HMSO: London, 2000) 94 Monica (n 31) 95 JR Spencer, ‘Sex by Deception’ (2013) 9 Arch Rev 6, 8–
It is evident that inserting new sections into the SOA 2003 is a less practical option. The issue with the current law is the lack of clarity and how defined the definition of consent actually is so a better solution would then be to address section 74 through reform. This reform would be done by focussing on the wording of the section itself and potentially removing section 76 so consent law is defined under one section, making it less confusing for judicial guidance and the public. Arguably, those deceptions that fall under section 76 are likely to be prosecuted under section 74 if they were not prosecuted under section 76. The courts prefer triggering section 74 over section 76 anyway, as seen in Assange 96 , McNally 97 and R(F) 98. As section 76 is interpreted so narrowly, the court is both unable and reluctant to be able to find prosecutions under it, which means by getting rid of it altogether and rewording section 74 to be more inclusive of those deceptions that would be found under section 76 and deceptions that should vitiate consent, hopefully the law will offer more clarity and a definition of consent that isn’t widely interpreted. In the government White Paper, Protecting the public 99 , the government stated, ‘it is vital that the law is as clear as possible about what consent means to prevent miscarriages of justice.’ The intentions here were to offer more clarity as to what the definition of consent is, which is then confusing as ‘freedom’ and ‘capacity’ are not defined in the act. 100 This ambiguity and uncertainty as to the definition means that the definition is open to interpretation and therefore lacking clarity and potentially resulting in a subjective definition of consent depending on the judge and jury. These problems make it unclear what deceits will then affect a person’s freedom and capacity and so judicial guidance given can be inadequate due to this lack of a clear definition. The proposal here would then be to scrap section 76 by altering the definition of consent under section 74 so it catches those deceptions found under section 76. To prevent ambiguity, it would be best to have a definition that focuses on the language within it so it can’t be incorrectly interpreted and a reliance on it will not result in rigorous judicial guidance. An objective test would therefore be more appropriate here, considering the ‘reasonable person’ as the focal point of the definition. A reformed definition would be as follows:
Section 74: The reasonable person with capacity, consents when a free and informed agreement is made.
Although the wording is somewhat like the previous definition, it is more concise and will define what keywords mean to provide that level of clarity needed. “Capacity” will refer to the age and maturity of the ‘reasonable person’ and whether they suffer from any mental illnesses or mental disabilities. These must be considered as it cannot be said that a person who lacks capacity consents. The capacity of the defendant would also have to be considered here to give a fair trial. The definitions of free and informed will also be included and will be as follows:
Free: A choice in which an individual made unconstrained by external influences
Informed: When a person is aware of the possible risks and consequences of the act that should be reasonably disclosed.
96 Assange (n 44) 97 McNally (n 2) 98 R(F) v DPP [2014] QB 581 99 Home Office, Protecting the Public, White Paper (HMSO: London, 2002) Cm 5668 paragraphs 28 and 30 100 Sexual Offences Act 2003 s 74
consent dissertation
Module: Criminal Law (LW2220)
University: University of Leicester
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