QUESTION “Criminal liability for rape on the facts of Devonald and Assange may seem to be unobjectionable – but where

do we draw the line? Might any concealed 'purpose' of D negate V’s consent under s.76 SOA, and how many other mistakes by V or deceptions by D – which do not relate to the nature or purpose of the act – might negate consent under s.74 SOA?” Discuss.

Introduction The issue of consent in criminal law has always been a complex one.76(2)(a). which is only concerned with whether said act was committed with a sexual motive or not.74).76(2)(a) has negligible impact beyond what is already provided for by the the word “nature” in the same clause. which would include any reasons – however minor or insignificant – that influenced D in his decision to engage in the revelant act. to the broadest. and has the freedom or capacity to make that choice” (s. ranging from the narrowest. Concealed 'purpose' of D It is submitted that in a literal reading of s. with various determining factors and no unanimously agreed-upon definition that is easily and universally applicable.74. the Sexual Offences Act 2003 (henceforth 'SOA') defines consent as present when a person “agrees by choice. the knowledge V is required to possess (regarding the “purpose” of the act or otherwise) in order to have the “capacity” to give valid consent remains uncertain.75 and the conclusive presumptions in s. This definition requires the courts (guided also by the rebuttable presumptions in s. It will be argued that the case of R v Devonald1 potentially over-extends the meaning of “purpose” in s. For the purposes of deciding whether sexual offences have been committed.76(2)(a) while that of Assange v Swedish Prosecution Authority2 has but a minor effect on the types of mistakes by V / deceptions by D that could negate consent under s. The narrowest interpretation would mean that the inclusion of the word “purpose” in s. the phrase “purpose of the relevant act” can give rise to a spectrum of interpretations. but until further case law limits or clarifies the applicability of these two cases in interpreting the SOA.76) to assess what constitutes “freedom” and “capacity” – the latter of which is the focus of this essay.76(2)(a) since only in very rare cases (perhaps those involving a young and innocent V3 or where V was deceived into thinking that there were 1 [2008] EWCA Crim 527 2 [2011] EWHC 2849 (Admin) 3 Such as R v Williams [1923] 1 KB 340 . and would severely restrict the application of s.

but will rarely go to the nature or purpose of intercourse”. Whereas under Jheeta D would very likely only be guilty under s76(2)(a) for deceiving V as to the presence of a sexual motive (the narrowest interpretation of “purpose”). the broadest interpretation could lead to rape convictions in any instance where V is intentionally deceived as to any of the reasons that influenced D to engage in the relevant act – a situation which is not only unpracticable due to the uncontrollable surge in the number of prosecutable cases. for causing V to engage in) sexual activity. post-Devonald he would be guilty even if V fully comprehends the sexual nature of the act. and therein lies the rub. it falls to the courts to distinguish between purposes which will automatically invalidate consent if V was intentionally deceived regarding them and purposes which will not. but also far removed from societal conceptions of the crime of rape and thus arguably unfair for defendants and beyond the concern of the criminal law (or at least the law against rape). Unfortunately Devonald does not elucidate what other reasons can be taken into account. but does not know of D's other reasons for wanting to engage in it.4 SOA 6 [2007] EWCA Crim 1699 . The case of Devonald (where D was convicted of “causing a person to engage in sexual activity without consent”5) provides authority for a very broad interpretation of “purpose” in s76(2)(a) by finding that it “encompasses rather more than the specific purpose of sexual gratification”.76(2) (a)] merely because the complainant was deceived in some way or other by disingenuous blandishments of or common or garden lies by the defendant [which] may well be deceptive and persuasive.medical reasons for the act4) will V not understand the “nature” of sexual acts. On the other hand. Within this range of statutory interpretation. While some may criticise the narrow construction of “purpose” in Jheeta for offering undue protection to Ds and welcome the expansion of its definition in Devonald to include various nonsexual reasons that D has for engaging in (or in Devonald's case. the problem posed by Devonald is that in its short judgment it seems to have expanded the definition of “purpose” without any 4 Such as R v Green [2002] EWCA Crim 1501 5 s. This is in stark contrast to the earlier declaration in R v Jheeta6 that “no conclusive presumptions arise [under s.

This opens the floodgates for courts to apply the broadest interpretation described above. which are best illustrated with another example: while the purpose of revenge on V (as in Devonald) would no doubt have caused V to withdraw consent had it been made known to V prior to the relevant act. thus given D's common law and ECHR8 right to a presumption of innocence. V might well have consented even with knowledge of this concealed purpose. the “rarity of occasions when the conclusive presumption in s. on the other hand. a husband who lies to his wife about having undergone a vasectomy in order to have sex with her and thereby impregnate her against her wishes might be found to have committed rape under s. 8 Article 6(2) . However this suggestion is not without problems of its own.76(2)(a) will apply” (ibid) that results is arguably not a problem as it is still open to the judge(s)/jury to find that consent as defined by s. The problems. It should be re-emphasized here that s. until 7 Although it may be unjust that the wife would not be guilty of rape if their positions were reversed.76(2)(a)7.76(2)(a) and the difficulties of creating a qualified Devonald approach. only circumstances where consent is unquestionably and undeniably absent should be brought within its ambit. courts were to follow the approach in Jheeta. therefore. it might be suggested that a middle-ground between the two approaches would be preferable in order to afford better protection to Vs against Ds with concealed purposes. if D (perhaps due to an unhappy marriage) were to engage in intercourse with V partly to take revenge on D's spouse.qualifications whatsoever. which as aforementioned is undesirable on both practical and ethical grounds. For example.74 was not present. Yet given the facts in Devonald. If. Having examined the potentially disastrous consequences of using an unmitigated Devonald approach to s.76(2)(a) gives rise to a presumption that cannot be rebutted. stem from the difficulty in determining the types of concealed purposes which would negate V's consent (and indeed this may vary from V to V) as well as the extent to which such purposes contributed to D's decision to engage in the act. and D might have engaged in intercourse with V as much because of his physical attraction towards V as this other purpose.

whereas only when D knows of the mistake and (by action/omission) plays a part in causing V to believe in it does the mistake become a deception.74. The law as it stands treats Ds far more leniently in mistake cases than in deception cases.74 if it can be proven beyond reasonable doubt that V lacked “freedom” or “capacity” to agree by choice. Even mistakes as to questions like whether D is HIV positive.such time as new statute or further case law can provide clearer guidelines as to the types of reasons or motivations that qualify as “purposes” under s. since any information known to D but not to V will result in a mistake.76. and that D did not “reasonably believe” (s. A more appropriate approach would instead be to categorise mistakes/deceptions into types which can negate V's consent due to lack of “capacity” and types which cannot. however. Both mistakes by V and deceptions by D are essentially knowledge which D has but V lacks. It is submitted that “capacity” cannot be equated to such a spectrum since knowledge/information – unlike pressure – is not a matter of degree. have been held not to be “a matter which could in any way be relevant to the issue of consent under 9 R v Kirk [2008] EWCA Crim 434 . he may still be found guilty under s.1(1)(c)) otherwise.76(2)(a). It will be useful. it seems that only the most fundamental of mistakes – those of “nature or purpose of the act” and mistaken identity (for an individual personally known to V) – will vitiate consent. In the former. which many might consider to be of great importance in their decision to have sex with another. with the question for the court is being “just where the line is to be drawn between real consent and submission”9. “Freedom” to consent (though beyond the scope of this essay) has been conceptualised as covering “a wide spectrum of mind”. to think of deceptions as a subset of mistakes. Other mistakes by V or deceptions by D Even if D is not conclusively presumed guilty under s. it would appear preferable to stick with the Jheeta approach of effectively equating “purpose” to “nature” and leaving other cases to be assessed under s.

It is worth clarifying that while the same two fundamental mistakes give rise to a conclusive presumption in s. s. of course. to the prosecution proving that V did not consent due to this deception and that D did not reasonably believe in V's consent.74 extends to situations beyond those described in s. it is highly questionable whether deception as to D's marital status11. Assange was found guilty as his intentional deception prevented him from claiming V's consent or his reasonable belief in it.74.76 but not s. Unfortunately in the absence of cases which serve to limit the range of deceptions that can nullify capacity.76.76 requires D to have “intentionally deceived” V – D could not possibly claim reasonable belief in V's consent after knowing deceiving her on such fundamental issues relating to the act.74 does not appear any wider than s. but D knowingly deceived her on the matter. In contrast.74). The ruling in Assange necessitates the question of whether any deception by D has the potential to make him guilty under s. Therefore on the range of mistakes that could negate consent. .74”10. it might be possible (though highly unlikely) for courts to extrapolate the ruling in Assange to imply that any minor deceptions by D could potentially make him guilty of rape – a situation that 10 R v B [2006] EWCA Crim 2945 11 See the Australian case of R v Papadimitropoulos [1957] 98 CLR 249. While few would object to conviction for rape on the facts of Assange itself. religious beliefs or even line of business could ever make him guilty by reason of V's lack of capacity under s. While many might think that mistake as to condom use is no more severe than mistake as to the HIV status of one's partner (since one will only need condoms to prevent transmission of disease if one's partner is infected.s. V had made it clear that she would only have sex with D if he used condoms throughout intercourse. s. there is no logical inconsistency as s. and pregnancy can be avoided through other means).74 – subject. In Assange. on the issue of deception. the status of cases where V has been deceived as to far more trivial information or information virtually unrelated to the act of intercourse itself is unclear. and Assange is evidence of this.74 (the effect being that D can still escape conviction by claiming reasonable belief in V's consent if charged using s.76. For example.

74. Due to space constraint. It merely provides an example of one deception which can negate capacity to consent. extents and combinations of deceptions.would be undesirable for the purposes of fair-labelling and proportionatecriminalisation of Ds actions. A more likely scenario. even with the paucity of cases defining deceptions which can never do so. Ultimately Assange has a limited impact on the interpretation of “capacity” in s. [2000 words] . it is highly unlikely that the present state of law answers that question in the affirmative. especially when different cases involve different Vs subjected to different types. and although this raises the question of whether any deception by D can suffice to negate capacity. is that courts will develop rules/guidelines to assess which deceptions can never negate capacity to consent. however. possible rules/guidelines will not be explored in this essay. it may be preferable to adopt a case-by-case approach in determining whether a particular V had the capacity to consent to intercourse. but given the difficulty of defining the notion of “capacity”.

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