This post was contributed by Dr Laura Lammasniemi, Associate Professor, Law School of University of Warwick.
When should we criminalise sex by deception? What kind of deceptions negate a person’s consent? Is deceptive sex rape, or should it be an offence of its own?
In January 2023, Criminal Law Reform Now Network (CLRNN) published a report on consent and deception. In this report, the CLRNN recommended that Parliament creates a new offence to deal with deception. They recommend that the offence would cover inducing sexual activity by deception and it would be added as a new section to existing the Sexual Offences Act 2003.
CLRNN published the report after a long consultation. Many practitioners, academics and legal experts wrote proposals for the consultation. They all gave different opinions on how best to proceed in this complex area of law. Every person who contributed a proposal or commented on those proposals agreed on one thing: there is an urgent need for reform in this area of law.
Why is it then that all of us who work in the field of sexual offences feel the law needs to be reformed?
Most importantly, the current law lacks clarity on what kind of deception vitiates consent. There are common law principles that have stood for over a hundred years stating that deception as to the nature or quality act vitiates consent. These principles are now part of the Sexual Offences Act 2003. From case law, we also know that deception as to gender or use of condom, for example, vitiates consent.
But what about everyday deceptions such as where a person agrees to have sex believing that they were in a loving committed relationship, but the other person was already married? What if the other person lies about their wealth or makes promises they have no intention of keeping? How serious these broken promises ought to be to warrant criminalisation?
These tricky questions have been further complicated by recent cases such as R (Monica) v DPP [2018] EWHC 3508. In Monica, the court held that undercover a police officer, who formed sexual relationship with a woman within environmental activist group under false pretenses that they were fellow activists, did not commit any sexual offences. In some of the cases the undercover police officers formed relationships that lasted years and resulted in children. After their commission ended, the police simply disappeared. The women felt a profound sense of betrayal and deception, but this was not sufficient to vitiate consent according to the courts.
Most recently in R v Lawrence [2020] EWCA Crim 971, the Court of Appeal attempted to draw the line of criminalisation between deceptions that go to the physical sexual act itself and deceptions that go to the broader circumstances surrounding the sexual act. This attempt to draw the line is confusing and unlikely to stand the test of time.
Creating a new offence is not without dangers. When such offences existed in the past, they were used far too broadly, and they were repealed when the Sexual Offences Act 2003 came into force. The drafters of the current Sexual Offences Act hoped that the broad definition of consent under s.74, and the supporting sections of 75 and 76, would sufficiently cover the issue of deception.
This has not been the case and we need further clarity on this very important point. Creating a new, carefully drafted, distinct offence that focuses on deception is on balance the best way forward.
You can read CLRNN report and the new proposals following the link below, and post your comments on it.
Great post, Laura. Both you and Prof Wilson have done some good blogs on the law on consent as it relates to rape. Conditional consent vitiated through deception needs to be formally addressed, without a doubt.