A gap in the law: sexual activity by deception

Criminal lawyers who practise in the area of sexual offences will likely already be aware of the problems caused by the decision of the Court of Appeal in R v Lawrance [2020] EWCA Crim 971. The problems are so great that the Criminal Law Reform Now Network, of which the authors are all members, have proposed, in a recent report, that the solution lies in creating a new sexual offence, which might be termed inducing sexual activity by deception.

At present, under the Sexual Offences Act 2003 (SOA 2003) the use of deceptive practices designed to procure any form of sexual activity can only amount to an offence if the effect of the deception is to remove altogether the ostensible consent of the victim. In such a case, the ordinary non-consensual sexual offences in ss 1-4 (including rape and sexual assault) can be charged.

However, SOA 2003 only provides explicitly for a narrow range of deceptions which would have the effect of nullifying consent. Under s 76(2)(a) a deception ‘as to the nature or purpose of the act’ removes consent. But this has been held not to apply where the complainant has been deceived into thinking that their partner is going to wear a condom, or has had a vasectomy, or is of a different birth sex to that believed by the complainant.

In fact, it is not clear when it does apply. The decision in Lawrance that a man committed no offence when he had lied to his partner about having had a vasectomy (the truth of which was evidently crucial to his partner’s preparedness to agree to unprotected sexual intercourse) shows a large gap in the law, to the minds of many.

In the aftermath of Lawrance, the Criminal Law Reform Now Network commissioned ten academic authors to write short pieces on how the law might be reformed, and several important assertions were accepted:

• that the law should make no sharp distinction between actively making false statements and not disclosing unwelcome truths;
• that the law should not purport to decide what sort of deceptions are important enough to warrant liability;
• that there might be sufficient reasons for persons to make some deceptions, e.g. a woman might deceive her controlling partner into believing that she is taking the contraceptive pill, as he requires her to do, and a jury should be permitted to acquit in such situations.

This explains our proposal that a separate offence should be created and should apply regardless of whether the complainant consents within the meaning of the SOA 2003. It would then criminalise sexual activity where deceit was offered on a matter known to be of importance to the complainant, in order to induce that sexual activity. As such, it would likely be more easily proven against those who knew the complainant well, and yet maintained a deceptive stance on such an issue; but that is how it should be.

A further advantage of creating a new stand-alone offence is that it may then be qualified by a reasonable excuse provision. We recommend that by virtue of this, the defendant’s reasons for making the deception (besides any desire for the sexual activity itself), their maturity, the extent to which the information concealed might be thought to be very private, the stage of the relationship, and the effects of the activity upon the victim might all be considered by the court.

To some extent this would be to reintroduce a version of an offence which had existed in s 3 of the Sexual Offences Act 1956, but which was abolished in SOA 2003. But its focus would now be much clearer, and the reasonable excuse provision would offer an appropriate qualification which previously was missing. To our mind, our proposal provides sufficient clarity and an acceptable compromise between findings of rape and no liability at all in cases such as Lawrance. The task now is to persuade lawmakers that such an offence is still needed and can be suitably formulated.

Our proposed text, which we recommend should be added as s 4A to the present Sexual Offences Act 2003, is shown in the box above.

We welcome the views of Counsel readers and hope that you will consider our recommendation. The report, Reforming the Relationship between Sexual Consent, Deception and Mistake, can be read in full here.