Sex, Lies and Consent

People have been lying to other people to get them into bed for as long as there have been beds. This and other deceptions or false promises can cause problems for the courts where the allegation is of a non-consensual sexual offence.  Courts have spent the years since the passing of the Sexual Offences Act 2003 wrestling with a number of difficult points thrown up by the drafting of this piece of legislation.[1]  This blog focuses on the problems which arise when a person thinks they are consenting to a particular activity with a particular person, only to discover that they have been deceived.

There are three factors which appear to this author to have led to the difficult cases before the courts over the last ten years:

  • Under the Sexual Offences Act 1956 there was an offence of obtaining sexual intercourse by false pretences or false representation[2].  That was not replicated in the SOA 2003.  Deceptive conduct therefore needed to be dealt with under the non-consent offences, if it was to be caught at all.
  • There is a conclusive presumption in s 76 of the SOA 2003 that there is no consent to a sexual act if the complainant was deceived by the defendant about its nature or purpose.  This effectively deprives a defendant of what is the most common defence, that is consent. Did Parliament really intend s 76 to make up for the absence of the SOA 1956 false pretences offence?
  • Section 74 of the SOA 2003 states that ‘a person consents if he agrees by choice, and has the freedom and capacity to make that choice’.  The meanings of ‘freedom’ and ‘capacity’ are left to the courts to decide in light of current sexual mores.  Could this be the way to deal with deception?

The post-2003 cases before the courts have often involved conduct which many feel ought to be an offence due to an absence of consent because a complainant has been left badly violated.  The courts appear to agree, but the courts have struggled with whether s 76 needs to be engaged, or whether s 74 and good sense can do the job of explaining why there is no consent.

In Re Jheeta[3] (2007) the defendant created a bizarre fantasy world through which he persuaded his partner to stay with him and continue having sexual intercourse. The Court of Appeal found that the complainant was not deceived about the nature or purpose of the act (sexual intercourse for sexual gratification) and so the conclusive presumption did not apply: ‘No conclusive presumptions arise merely because the complainant was deceived in some way or other by disingenuous blandishments of or common or garden lies by the defendant’. The court then turned to section 74 and found that the complainant had not freely given consent because she consented due to her erroneous belief (due to the defendant’s lies) that she was being threatened by unknown people and the police were telling her to stay with the defendant and have sex with him.

In Re Devonald[4] (2008) the complainant was a 16-year-old boy who had been in a relationship with the defendant’s 16-year-old daughter. The daughter was distressed about the end of the relationship and the defendant took matters into his own hands. Assuming the identity of ‘Casey’, a 20-year-old female, he corresponded with the complainant over the internet. As Casey, the defendant asked the complainant to masturbate in front of a webcam. The Crown asserted that this was done by the defendant for his own sexual gratification. The defendant said that he wanted to humiliate the complainant. The defendant sought the trial judge’s ruling as to whether the ‘nature or purpose’ presumption in section 76 applied. The judge ruled that it was open to the jury to conclude that the complainant had been deceived as to the purpose of the act of masturbation. The defendant pleaded guilty and appealed. The Court of Appeal agreed with the trial judge. The court found that the purpose of the act went beyond the defendant’s own sexual gratification and extended to the sexual gratification of a 20-year-old female called Casey. The defendant’s deception about Casey thus went to the purpose of the act.  The effect of this judgment was potentially very wide ranging; how far can and should the courts enquire into the parties’ purposes in engaging in sexual activity?

Devonald and Jheeta clearly reach their decisions quite differently.  In Devonald the huge weight of the s 76 presumption is relied upon, but is that either necessary or desirable?  The SOH authors thought not and we criticised the decision at length in our first edition.  Academic opinion (particularly from the editor of Blackstone’s and Smith & Hogan) took a similar view, criticising the decision in Devonald as, at the very least, out of step.  Fortunately some recent cases have clarified the law and affirmed the sensible approach in Jheeta.

In Assange v Sweden[5] (2011) the High Court followed the Jheeta rather than the Devonald line of reasoning.  The relevant issue in Assange was whether consent to sexual intercourse with a condom was sufficient to constitute consent to sexual intercourse without a condom.  The court accepted that it could be argued that sexual intercourse with the physical barrier of a condom is different in nature to sexual intercourse without that barrier, but concluded that as this issue of consent can be determined under section 74, extension of the conclusive presumption in section 76 was not necessary.  The court commented that section 76 should be given a ‘stringent construction’[6].  The court gave short shrift to the argument on behalf of Assange that deception could not come within s 74 because s 76 was the last word on deception in the SOA 2003.[7] In the end, the Court made clear that it is all about freedom and capacity to choose.

The current end of this line of case law is Bingham[8] (2013) which turned on a very bizarre set of circumstances, not wholly dissimilar to those in Jheeta. In Bingham the defendant made up a personality online – ‘Grant’ – which he used to contact his own girlfriend. Whilst posing as ‘Grant’ he persuaded his girlfriend to pose topless. Having obtained the topless images, ‘Grant’ blackmailed the girlfriend into performing sexual acts over a webcam. The girlfriend eventually went to the defendant who claimed to have physically assaulted ‘Grant’ and put an end to things. The defendant then posed as ‘Chad’ (a fictitious friend of the fictitious ‘Grant’) and proceeded to blackmail the girlfriend into further sexual acts over a webcam. The police eventually traced ‘Grant’ and ‘Chad’ to the defendant. The Crown sought to rely on Devonald and argue that the s 76 conclusive presumption applied as the complainant was deceived as to the nature or purpose of the sexual act. The defence objected but the trial judge ruled in the Crown’s favour. Hallett LJ giving judgment in the Court of Appeal noted section 76 ‘effectively removes from an accused his only line of defence’ and ‘it will be a rare case in which section 76 should be applied’. Further, ‘if there is any conflict between the decisions in Jheeta and Devonald, we would unhesitatingly follow Jheeta’[9].  In reaching this decision she pointed out that parties to a sexual act may have very different purposes for what they are doing, and the Act does not specify whose purpose section 76 refers to.  A wide definition for ‘purpose’ risked bringing within the remit of section 76 situations never contemplated by Parliament. Small comfort for the convicted Mr Devonald (who may have struggled under s 74 in any event), but a clear decision in favour of fair trials rather than conclusive presumptions.

Is this the end of the issue?  You may want to consider the case of McNally[10] (2013) in which the female defendant claimed to be male.  She developed an online relationship with the complainant who began to refer to the defendant as her boyfriend. The deception continued and they engaged in sexual acts.  The court stated that the sexual nature of the acts is, on any common sense view, different where the complainant is deliberately deceived by a defendant into believing that the latter is a male’[11] and ‘we conclude that depending on the circumstances, deception as to gender can vitiate consent’[12].  Is this case going to be relied upon to engage s 76 in future cases, or will the pragmatic line in Assange carry more weight?  If the law on sex and lies is to be comprehensible, fair and workable the author hopes the latter.

[1] see Rose LJ’s comments in R v A (Prosecutor’s Appeal) [2006] 1 Cr App R 28 at para 1
[2] see SOA 1956 s 3.
[3] [2007] 2 Cr App R 34
[4] [2008] EWCA Crim 527
[5] [2011] EWHC 2849 (Admin)
[6] ibid para 87
[7] ibid paras 88 to 90
[8] [2013] 2 Cr App R 29. A retrial has been ordered in this case, but anonymity was not sought as there had already been significant reporting of the first trial.
[9] ibid paras 19 and 20
[10] [2013] 2 Cr App R 28
[11] ibid para 26
[12] ibid para 27

2 thoughts on “Sex, Lies and Consent

  1. Pingback: Rape and other sexual allegations: The law explained | The Sexual Offences Handbook

  2. Pingback: How the DPP did not change the law on consent  | The Sexual Offences Handbook

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