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Rape and deception (again), Crim. L.R. 2020, 10, 877-881

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Rape and deception (again) David Ormerod

Editorial Criminal Law Review Crim. L.R. 2020, 10, 877-881 Subject Criminal law Other related subjects Health Keywords Consent; Deception; Fertility; Non-disclosure; Rape; Vasectomy

Cases cited R. v Lawrance (Jason) [2020] EWCA Crim 971; [2020] 7 WLUK 344 (CA (Crim Div)) Legislation cited Sexual Offences Act 2003 (c.42) s.74, s.76

*Crim. L.R. 877 In what circumstances should A’s deception of B to procure sexual acts by B amount to a sexual offence? The appellate courts have now addressed this issue, in various guises, in no fewer than 10 cases since the Sexual Offences Act 2003 came into force over a decade and a half ago. Despite the best efforts of the judiciary the case law reveals inconsistency in outcomes and a general incoherence. The Government was explicit when enacting the 2003 Act that "[i]t is vital that the law is as clear as possible about what consent means".1 The current law has failed to deliver on that promise. It is time for the matter to be resolved by further legislation.2 The current law Cases of sexual conduct secured by deception have troubled the courts since at least the nineteenth century.3 The Sexual Offences Act 2003 (SOA), which represented the most radical overhaul on sexual offences in over 100 years, has arguably made matters worse. Section 74 provides that, when consent is an issue for any of the offences in ss.s.1 –4 of the Act, then "a person consents if he agrees by choice, and has the freedom and capacity to make that choice". Section 74 is silent as to whether agreements induced by fraud or material non-disclosure are true agreements or whether the presence of deception is inconsistent with the concept of consent given that that concept is defined by reference to freedom and choice. Section 76 provides for conclusive presumptions of non-consent including where "(a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act".4 The inter-relationship of these provisions and the broader challenges raised by statutory attempts to define consent were raised at the time of the 2003 Act’s enactment by Ashworth and Temkin in their influential article—oft-cited by academics and the courts.5 The anticipated difficulty in applying the SOA consent regime in practice has been borne out by the volume of appeals. These include: *Crim. L.R. 878 6 B 7 —the defendant’s failure to disclose his HIV positive status did not negate consent to sexual intercourse and ejaculation;

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Rape and deception (again), Crim. L.R. 2020, 10, 877-881

Jheeta 8 —A deceiving B that a police officer was encouraging her to perform sexual acts with her partner (A) was not a deception as to the nature or purpose of the Act under s.76 but was capable of negating consent applying s.74; Bingham 9 —deceptions as to identities assumed by A to cause his girlfriend to perform sexual acts online were not deceptions as to the purpose of the acts under s.76, but were capable of negating consent under s.74; Devenauld 10 —deception as to A’s true purpose for encouraging B to masturbate online was a deception as to the purpose of the act and fell within s.76; McNally 11 —A’s deception as to their biological sex negated B’s apparent consent to digital penetration by A (the court noted obiter that deceptions as to wealth or employment would "obviously" not be sufficient to vitiate consent); R. (on the application of F) v DPP 12 —A’s deception about whether he would withdraw before ejaculating in B’s vagina was capable of negating her consent to sexual intercourse; Assange 13 —A’s deception about using a condom during sex was capable of negating B’s apparent consent; Monica 14 —A’s deception about environmental beliefs and his employment as an undercover police officer was not sufficient to vitiate consent to sexual intercourse.

Numerous articles in the Review 15 and elsewhere16 have debated the scope of consent in this context and offered critical scrutiny of the case law.17 Only relatively recently did the courts articulate an overriding principle to be applied in these cases. In Monica, the Lord Chief Justice stated that: ".. deception which is closely connected with "the nature or purpose of the act", because it relates to sexual intercourse itself rather than the broad circumstances surrounding it is capable of negating a complainant’s free exercise of choice for the purposes of section 74 of the 2003 Act" (at [72]) Crucially, his lordship stated that in enacting the 2003 Act, Parliament had merely codified the common law approach to consent. Parliament did not, according to the Lord Chief Justice, intend for the concept of consent to be radically altered. *Crim. L.R. 879 Lawrance The most recent decision of the Court of Appeal, Lawrance,18 has arguably complicated the picture further. Having met on a dating website, A assured B in the course of a sexually explicit text message exchange, that he had had a vasectomy. On B’s account, A repeated that assertion to her shortly before they twice had unprotected intercourse. A admitted the following day that he was fertile. (B became pregnant and had a termination). On appeal A’s convictions on two counts of rape were quashed. Distinguishing Assange and F, and applying Monica, the Court held that A’s lie about fertility was not sufficiently closely connected to the performance of sexual intercourse to negate B’s consent under s.74. The Lord Chief Justice concluded: "36. In our opinion, a lie about fertility is different from a lie about whether a condom is being worn during sex, different from engaging in intercourse not intending to withdraw having promised to do so and different from engaging in sexual activity having misrepresented one’s gender. 37. Unlike the woman in Assange, or in R. (on the application of F) v DPP, the complainant agreed to sexual intercourse with the appellant without imposing any physical restrictions. She agreed both to penetration of her vagina and to ejaculation without the protection of a condom. In so doing she was deceived about the nature or quality of the ejaculate and therefore of the risks and possible consequences of unprotected intercourse. The deception was one which related not to the physical performance of the sexual act but to risks or consequences associated with it." Some may welcome the decision, agreeing with the Court that the complainant did consent to the physical acts (i.e. unprotected "sexual intercourse" which the court treats as the relevant "act"). They might adopt the argument of Jonathan Rogers that these offences "are designed to protect a person’s sexual autonomy, not her health or her desire not to carry a baby".19 Others may accept the Court’s distinction based on whether the deception relates to the "physical acts", but challenge its application on the

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facts. They might argue that V did not agree to all the physical acts—she agreed to unprotected intercourse but not the deposit of sperm (but nor did the complainants in F or Assange). Yet others will reject any attempt to draw such "artificial distinctions" (as the trial judge called them) based on "physical acts" given that they become difficult to articulate and apply consistently. Critics might ask how resolutely the Court of Appeal will be able to maintain a clear distinction between: unprotected intercourse with a deception as to withdrawal resulting in A ejaculating in B (F —rape); unprotected intercourse with a deception as to use of a condom resulting in A ejaculating into A (Assange —rape) and unprotected intercourse with deception that the ejaculate will not contain sperm because of a vasectomy (Lawrance —not rape)? In each case there is an active deception by the defendant as to a factor known by the defendant to be a condition precedent of the complainant’s consent. The decision has broader consequences than exposing apparent inconsistencies in the jurisprudence. In practical terms it does not render any easier the prosecutor’s *Crim. L.R. 880 task in determining which deceptive conduct reported by complainants constitutes rape. Nor, in policy terms, is the message one that maximises the protection of sexual autonomy. Applying the reasoning in [37] above, a complainant’s autonomy is afforded less protection in law where she is deceived about her partner’s need to use a condom (leading her to impose no "physical restrictions") than about whether he was actually wearing a condom. Can the SOA be made to work? Is the approach to consent in the SOA capable of being interpreted and applied in a more coherent and consistent fashion? If the courts are to achieve these goals, one of the first questions of principle to be addressed is the scope of s.74 ’s application to deceptions. That raises the question whether the relationship between ss.76 and 74 has been correctly interpreted. The court in Assange was clear that s.76 does not provide exhaustively for all the types of deception negating consent; other deceptions that do not fall within s.76 can negate apparent consent under s.74. As a matter of statutory interpretation, Sir John Thomas P said, at [88]: "It would, in our view, have been extraordinary if Parliament had legislated in terms that, if conduct that was not deceptive could be taken into account for the purposes of s.74, conduct that was deceptive could not be." It is submitted that the interpretation is the correct one. If Parliament’s intention had been to codify the common law on deceptions negating consent and render that exhaustive, it would surely have been made more explicit in the 2003 Act. If the Assange interpretation is correct,20 then the next question facing the Courts is whether under s.74 a deception as to any factor at all can be capable of negating consent, and if not, how principled lines can be drawn to identify which deceptions can negate consent and which cannot. This is the question the courts have grappled with since 2004, with differing levels of success. The approach the Courts have now taken is premised on the conclusion that s.74 merely codifies the common law approach to consent. As a result, the extent to which deception is capable of vitiating apparent consent in 2020 is still dictated by case law from the nineteenth and early twentieth centuries. This case law-and the approach to consent it adopts-inevitably reflects the prevailing attitudes of the time. Whether this case law reflects contemporary attitudes towards consent is doubtful. Is it time for the Supreme Court to step up and resolve the problems? What options would be open to that Court? Could it reject the idea that lines are to be drawn, accepting instead that a deception or failure to inform on any factor is capable of negating consent? Admittedly that leaves the mens rea of these offences to do all the work. To adopt this approach, the Court would first have to conclude that s.74 does not, as has been held by the Lord Chief Justice, merely codify the common law. Would the Supreme Court, instead, prefer to refine the Court of Appeal’s model by identifying a principled way of distinguishing factors about which deceit is capable of negating apparent consent? Any such test has to be capable of consistent application by prosecutors and courts alike and has to reflect *Crim. L.R. 881 social attitudes to sexual conduct and the protection of autonomy. Alternatively, might the Court attempt to create a list of decisive factors (e.g. as to risks of STI and pregnancy) about which deceit will negate consent?21 Would that inevitably lead to yet more line drawing and frustrate Parliament’s clear choice to adopt an open textured test of consent as provided in s.74 in contrast to one that is overly prescriptive? The broader policy questions The Court in Lawrance concludes by recognising "that these issues require debate as matter of social and public policy". This could be interpreted as a signal that it is time for Parliament to think again. The Court is clearly right to acknowledge the breadth and sensitivity of the policy questions at stake, but if Parliament is to legislate there are some difficult issues to tackle. Should any fraud as to any matter be capable of nullifying apparent consent? If so, what label is it appropriate to apply to such conduct? John Spencer and others have argued for a resurrection of the offence from the Sexual Offences Act 1956 of procuring sex by false pretences.22 But does that present a perception of twotier protection for autonomy and produce practical problems of charging for the CPS?

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Is it right to distinguish between D’s positive deceptions from his failures to disclose? Is what really matters the exercise of choice and that that presupposes sufficient information to make an informed decision. The judgment in Lawrence gives the welcome indication that such distinctions cannot be maintained. The Lord Chief declared that "it makes no difference to the issue of consent whether, as in this case, there was an express deception or, as in the case of B, a failure to disclose".23 To some this statement may be surprising given that this distinction appears to have been crucial in the cases of McNally and B. More broadly, should the law on consent and deception be adopting different approaches, between sexual offences and other offences of violence? Deceptions or non-disclosures about a broader range of factors may currently suffice to negate apparent consent in offences of violence than in sexual violence.24 Careful consideration of the mens rea required is also crucial if overcriminalisation is to be avoided. How should the mens rea be constructed? Should A be excused only if he has a reasonable belief that the subject matter of the lie he told/ about which he failed to inform would be irrelevant to the complainant’s decision making? The range and sensitivity of the policy issues render it ill-suited to resolution by even the Supreme Court. The subject seems ideally suited to an independent review by the Law Commission which can consult extensively, conduct comparative analysis and make recommendations directly to Government. *Crim. L.R. 882 David Ormerod

Footnotes 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

White Paper, Protecting the Public (2002), para.28 For a fascinating discussion on the subject see the seminar from the UCL Centre for Criminal Law, www.ucl.ac.uk/laws/events/2020/aug/ online-consent-sex-deception-and-r-v-lawrance [Accessed 21 August 2020]. R. v Dee [1884] 14 LR Ir 468; R. v Flattery [1877] 2 Q.B.D. 410; R. v Clarence [1882] 22 Q.B.D. 23. Leaving aside for the purposes of this debate the rarely used s.75 provision containing rebuttable presumptions of non-consent where specified circumstances exist. Section 75 does demonstrate the types of pressures and incapacities Parliament assumes should vitiate apparent consent. A. Ashworth and J. Temkin, "The Sexual Offences Act 2003: (1) Rape, sexual assaults and the problems of consent" [2004] Crim. L.R. 328. See also Matt [2015] EWCA Crim 162. What these cases highlight is the unpredictable range of behaviours and the lengths to which some will go to defraud others (even existing partners) to engage in sexual acts. B [2006] EWCA Crim 2945; [2007] 1 W.L.R. 1567. Jheeta [2007] EWCA Crim 1699; [2008] 1 W.L.R. 2582. Bingham [2013] EWCA Crim 823. Devenauld [2008] EWCA Crim 527. McNally [2013] EWCA Crim 1051; [2014] Q.B. 593. R. (on the application of F) v DPP [2013] EWHC 945 (Admin); [2014] Q.B. 581. Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin); [2012] 2 A.C. 471. R. (on the application of Monica) v DPP [2018] EWHC 3508 (Admin); [2019] Q.B. 1019. J. Herring, "Mistaken Sex" [2005] Crim. L.R. 511; H. Gross, "Rape, Moralism and Human Rights" [2007] Crim. L.R. 220. E.g. recently M. Gibson "Deceptive Sexual Relations: A Theory of Criminal Liability" (2020) O.J.L.S. 82. See K. Laird, "Rapist or rogue? Deception, consent and the Sexual Offences Act 2003" [2014] Crim. L.R. 492; A. Sharpe, "Criminalising Sexual Intimacy: Transgender Defendants and the Legal Construction of Non-Consent" [2014] Crim. L.R. 207. Lawrance [2020] EWCA Crim 971. J. Rogers "The effect of "deception" in the Sexual Offences Act 2003" (2013) Archbold Review 7. For arguments that it is not see J. Miles, "Sexual offences: consent, capacity and children" [2008] Archbold News 6. Cf R. Williams, "Deception, Mistake and Vitiation of the Victim’s Consent" (2008) 124 L.Q.R. 132. See J.R. Spencer, "Sex by Deception" (2013) 9 Archbold Review 6. At [41], albeit it is difficult to square with the approach in McNally. Dica [2004] EWCA Crim 1103; [2004] 3 W.L.R. 213. See C. de Than and C Elliott "The Case for a Rational Reconstruction of Consent in Criminal Law" (2007) M.L.R. 225.

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