Research by an influential think-tank – the Criminal Law Reform Now Network (CLRNN) – has concluded that the law with respect to sexual activity is in need of urgent legislative reform.
The research focuses on so-called ‘sex by deception’ cases where a defendant has engaged in sexual activity with another person only after (and as a result of) the defendant having either lied or concealed something known by the defendant to be important to that other person – be that the defendant’s identity, his religion, his sexual health, his marital status, and so on.
Existing sexual offences have been applied to deception cases, particularly where the deception concerns the nature or purpose of the sexual act (e.g. where the defendant pretends to carry out a medical procedure but really means to sexually assault the patient) or the defendant’s identity (e.g. where the defendant poses as the victim’s partner).
But outside this narrow subset, where a person’s apparent consent to sex is clearly undermined by the defendant’s words or actions, the legal landscape has become a quagmire.
In McNally [2013] EWCA Crim 1051, for example, where a defendant identified and presented as a young man, having been born female, the Court of Appeal was willing to uphold the defendant’s conviction for a sexual offence on the basis that the defendant’s ‘gender fraud’ was sufficient to undermine his partner’s consent. However, deception as to other characteristics, such as HIV status and other potentially dangerous conditions, do not vitiate consent (Konzani [2005] 2 Cr. App. R. 14).
On the boundaries of impersonation too, whilst the defendant in Devonald [2008] EWCA Crim 527 who posed as a young woman online, encouraging sexual acts over a webcam, was found liable, apparently no sexual offences were committed by undercover police officers in Monica [2018] EWHC 3469 (QB) who formed sexual relationships with women within activist groups.
Across these – and many other – cases, the courts have struggled for a principled and practical mechanism for distinguishing deceptions that will and will not undermine consent. Despite a succession of alternative fixes, developed and subsequently abandoned by the courts across the last two decades, the situation remains unacceptable.
The most recent test preferred by the Court of Appeal, for example, attempts to draw the line of criminalisation between deceptions that go to the physical sexual act itself (criminal), and deceptions that go to the broader circumstances surrounding the sexual act (non-criminal).
This test was applied in the case of Lawrance [2020] EWCA Crim 971, where the defendant’s repeated lies about having had a vasectomy did not remove the victim’s consent to unprotected sex with the result that no crime was committed. Strikingly, in previous cases the Court of Appeal had been willing to find liability for a sexual offence where a defendant lied about wearing a condom during sex (Assange v Sweden [2011] EWCH 2849 (admin)), or about his intention to withdraw prior to ejaculation (F v DPP [2013] EWHC 945 (Admin)).
This test, however, is surely as ill-fated as its predecessors. Even on its own terms it is far from clear that deception about a vasectomy is any more removed from the physical sexual act than the non-use of a condom. In both cases the defendant is lying about the ejaculation of sperm into his partner.
And more broadly, even if the act/circumstance distinction was applied more consistently, there remains a larger question of principle about why deceptions concerning the sexual act should be protected ahead of other forms of deception. Why is our right to limit sexual access to our own bodies conditioned and limited by the type of lies used to manipulate us into having sex?
It is questions of this kind that have prompted the latest research from the CLRNN. Emerging from a consultation exercise conducted in 2021/22, where 10 legal experts presented alternative proposals for reform, the CLRNN published its final report and recommendations on the 18 January 2023.
For the CLRNN, rather than attempting to accommodate all deception cases within a matrix of consent/non-consent, the better way forward is to create a new tailored offence of ‘inducing another to engage in sexual activity by deception’.
The new offence would be made out whenever a victim is intentionally deceived by false representations or the deliberate withholding of information about a matter the defendant knows is important to the victim, with the result that the victim is induced to engage in sexual activity which she would not have otherwise participated in.
Focusing on inducement rather than causing the decision to participate would capture the reality that such decisions are likely to be driven by a range of factors and the inclusion of a ‘without reasonable excuse’ provision should avoid the potential for inappropriate liability without trying to predict all possible scenarios.
The time for legislative reform is now.
Paul Jarvis is leading the Deception Project as part of the Criminal Law Reform Now Network. He is a barrister at 6KBW College Hill
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