When is consent not consent?

Introduction

Truth, it is said, is often stranger than fiction. Studying law you often try to analyse a piece of law by thinking up hypothetical examples of facts that could happen to test the extremes. Practicing law you find that whatever set of facts you can dream up in a classroom will be beaten in real life.

The Court of Appeal had to grapple with the seemingly straightforward case of what is meant by consent in relation to sexual offences.

Facts of the case

On 27th June 2013, the Court of Appeal gave judgment in the case of McNally [2013] EWCA Crim 1051.

Ms McNally had started communicating with the victim (I’ll call her V) when they were both about 13 on a social networking site called Babbo. For the next three years they communicated a lot on the internet before agreeing to meet after V’s 16th birthday.

Ms McNally used the name ‘Scott’ and it seems pretended that she was a boy. They had started an online relationship and had discussed having sex. As the Court of Appeal noted “Scott” would talk about what he wanted to do to her with “it” and “putting it in” which the complainant took to mean “his” penis.”

The online and telephone relationship developed to the point where Ms McNally arranged to visit V. There were three visits during which sexual activity (digital penetration by Ms McNally of Vs vagina) occurred. On the fourth visit V’s mother confronted Ms McNally as to whether she was actually a girl, not a boy as she had stated, and she accepted that she was.

V’s mother complained to the police. V was spoken to and said that “she said that she did not know that “Scott” was a girl. She considered herself heterosexual and had consented to the sexual acts because she believed she was engaging in them with a boy called Scott.”

Ms McNally was arrested and interviewed, where she stated that V had known (or had at least suspected) that he was a girl.

At Court, Ms McNally pleaded guilty and was sentenced to three years youth detention. She appealed on the basis that the conviction was wrong – any deception about her gender did not vitiate (negate/remove) the consent.

It seems that the deception practiced by Ms McNally came from confusion about her own gender rather than any more sinister motives.

The Court of Appeal’s view

The first hurdle was that Ms McNally had pleaded guilty. This is always a big hurdle (see here) but I won’t look at that in any detail (as this is already going to be longer than a usual post).

The real meat of the decision is whether the deception practised by Ms McNally would negate the consent that was undoubtedly given by V to the digital penetration? What is meant by ‘consent’’?

The starting point is the Sexual Offences Act 2003. This gives further guidance as to consent (s74):

For the purposes of this Part, a person consents if he agrees by choice and has the freedom and capacity to make that choice.”

On a separate note, by virtue of s76, any consent is nullified if the defendant “intentionally deceived the complainant as to the nature or purpose of the relevant act” or “intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.” These reflect the law for hundreds of years. Whether there should be an irrebutable presumption is a different matter, but that doesn’t arise here.

So, what is meant by ‘choice’ and ‘freedom to consent’?

The question was set out well in para 23 “The case for the Crown was that M’s consent was obtained by fraudulent deception that the appellant was a male and that had she known the truth, she would not have consented to acts of vaginal penetration. Mr Wainwright argues that deception as to gender cannot vitiate consent; in the same way deception as to age, marital status, wealth or, following EB, HIV status being deceptions as to qualities or attributes cannot vitiate consent.”

The reference to EB refers to a rape case where the defendant was HIV positive. The Court there stated “Where one party to sexual activity has a sexually transmissible disease which is not disclosed to the other party any consent that may have been given to that activity by the other party is not thereby vitiated. The act remains a consensual act“.

After that, the law has moved on. The Court reconsidered the question of consent in relation to the Julian Assange extradition request.

The position after that was perhaps best summarised in the case of F v DPP from March 2013. This was a Judicial Review of the decision to prosecute (the CPS said that they wouldn’t prosecute the alleged perpetrator, the complainant was saying that this was wrong). This involved a husband and wife with a backdrop of domestic violence. In relation to having sex, the wife “consented on the clear understanding that the intervener would not ejaculate within her vagina. She believed that he intended and agreed to withdraw before ejaculation.”

The Court held that, “ If before penetration began the [husband] had made up his mind that he would penetrate and ejaculate within the claimant’s vagina … she was deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based. Accordingly her consent was negated.

Contrary to her wishes, and knowing that she would not have consented, and did not consent to penetration or the continuation of penetration if she had any inkling of his intention, he deliberately ejaculated within her vagina. In law, this combination of circumstances falls within the statutory definition of rape.

This then creates the possibility that a factual untruth told by a defendant is capable of undermining consent.

What sort of lie are we talking about?

In reality, some deceptions (such as, for example, in relation to wealth) will obviously not be sufficient to vitiate consent. In our judgment, Lord Judge’s observation that “the evidence relating to ‘choice’ and the ‘freedom’ to make any particular choice must be approached in a broad commonsense way” identifies the route through the dilemma.”

How to you decide in an individual case? No general guidance is given. Why does not being forthcoming about HIV status leave the consent intact, when not telling the truth about ejaculation not? The Court gives no answer.

What about the case of Ms McNally? Here, the Court said:

Thus while, in a physical sense, the acts of assault by penetration of the vagina are the same whether perpetrated by a male or a female, 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. Assuming the facts to be proved as alleged, M chose to have sexual encounters with a boy and her preference (her freedom to choose whether or not to have a sexual encounter with a girl) was removed by the appellant’s deception” and therefore “It follows from the foregoing analysis that we conclude that, depending on the circumstances, deception as to gender can vitiate consent” [para 26-27]

Again, there is no definite guidance as to which circumstances fall on which side of the line.

The Court of Appeal dismissed the appeal. They did allow a separate appeal against sentence, reducing the three year sentence to nine months, suspended for two years.

Comment

What this case consider is when does a deception about an individual’s personal characteristics negate consent?

There are three possible answers:

(1) Deception always does

(2) It never does

(3) It’s a matter for the jury to decide in any particular case.

The Court’s conclusion is that the answer is (3), subject presumably to some threshold test. Are they right?

Dealing with (1) first, that clearly cannot be right. As @Lyndon_Harris pointed out during a twitter debate on this issue, if he says that he is a footballer, and someone agrees to have sex with him as a result of that statement, if he just enjoys a Sunday afternoon kickabout, does that make him guilty of rape?

My own view is (2). To deceive someone of full capacity in order to have sex with them is morally reprehensible, but it seems to me that it should not attract the sanction of the criminal law, especially when you consider the severe consequences. Here, Ms McNally will be subject to the provisions of the Sex Offenders Register. Although that will ‘only’ last 10 years, given the hysteria about sexual offences, this will taint the rest of that teenagers life – is that right?

I am an adult, I was born a man, and I am someone who has always been sure about my gender and sexuality. On some views that makes me fortunate. Ms McNally was 17 when this happened and had “a history of self harm and confusion surrounding her gender identity and sexuality”. That doesn’t excuse the behaviour (morally, even if is not a crime) but it should lead us to question whether locking her up is the proper way a civilised society deals with a vulnerable teenager.

The decision of the Court that a deception is capable of being rape raises the question of when that will be so. The answer given is that, “In reality, some deceptions (such as, for example, in relation to wealth) will obviously not be sufficient to vitiate consent. In our judgment, Lord Judge’s observation that “the evidence relating to ‘choice’ and the ‘freedom’ to make any particular choice must be approached in a broad commonsense way” identifies the route through the dilemma.”

In my view, this is wholly inadequate. It gives no guidance at all. Tonight, all around the country, men and women will engage with others in all sorts of sexual activity which has an element of deception as a prelude. Are all of these people potentially rapists? Which deceptions vitiate consent may be ‘obvious’ to the Court of Appeal, but it’s far from obvious to me.

Some questions that arise:

Does this require an ‘active’ deception – ie a positive statement that is untrue?

This is particularly acute with transgendered people (see below). Does a man who presents as a woman make a statement that he is a woman? Does he have to ensure that everyone who he may have any sexual encounter with is aware of his gender? Where do we stop with this? If someone is dressed in an army uniform for a fancy dress party required to say to someone that she is chatting up that she is not actually a soldier, in case her potential beau has a particular fetish for uniform?

Who is to judge what deception is ‘sufficient’?

The Court of Appeal feel that gender is, presumably, such an integral part of a person’s identity that a deception about it is serious, in a way that someone lying about their financial wealth is not.

But who judges that? Whilst we may all agree that someone saying that they are a millionaire when they are on benefits is not rape, why is that? There is presumably some element of caveat emptor about that, coupled with the unspoken assumption that basing a choice of sexual coupling on the wealth of a partner is not morally deserving of protection.

What about the religion of a sexual partner? Religion is a fundamental part of many peoples identity. Quoting the Court of Appeal again :

Thus while, in a physical sense, the acts of assault by penetration of the vagina are the same whether perpetrated by a male or a female, 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 … M chose to have sexual encounters with a boy and her preference (her freedom to choose whether or not to have a sexual encounter with a girl) was removed by the appellant’s deception”. For many people, substituting religion, or HIV status, or many other characteristics in the above quote would apply equally to a person’s preference.

Other examples off the top of my head – if I pretend that I am infertile to avoid using contraceptives, that’s morally repugnant, but is it rape? Or, say that I know that I am infertile, but fall in love with a woman who desperately wants children one day and so I keep my infertility quiet whilst a relationship develops, possibly over many years. The betrayal of trust is huge, the moral culpability high, but is every instance of intercourse between us rape?

Is this too subjective?

Criminal liability should flow from the actions of the individual. Here, if the victim did not mind about the gender of her partner, there would be no offence. Whether or not a deception removes consent does not depend on the defendant, but on the view of the victim as to the reasons why they consented – is that right?

How am I to know what specific factor (or one of many factors) is the reason that another person has sex with me? To me, the religion of a partner has no significance, but do I need to state what mine is in case that is something my prospective partner feels is vital? What else need I declare? How do I decide?

One answer is to be completely honest, but is that realistic? And the problem with allowing certain deceptions without being utterly clear about which ones are criminal is that we then move from legal certainty to a moral relativism that has no place in a Courtroom.

Impact on transgender rights

Transgendered people are still widely discriminated against. In many cases they face a huge level of open hostility. Against that backdrop, what level of openness should be required?

The Equality and Human Rights Commission has a good overview of transgender and transsexual rights. For obvious reasons, the law generally prohibits discrimination and gives a right to privacy for transgendered individuals.

Additionally, Parliament passed the Gender Recognition Act 2004. This gave recognition to the right of transsexual people to legally change their gender. There is a complicated process, but it is possible to obtain a Gender Recognition Certificate.

If that is done, then by virtue of s9(1)Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender“. Where does this ruling leave such a person? Legally, they are (for example) a man. Do they have to disclose their full history in the bedroom but nowhere else?

An alternative solution?

The law has always been clear that, unless there’s deception as to the nature of the act, or there is an impersonation of a known person, no amount of deception or fraud can turn otherwise consensual sex into rape.

I would suggest that that is correct and the law has taken a wrong turn with the Assange case (I don’t really buy the Court’s argument in McNally that the question was left open in EB) – a cynic may suggest that this related to political issues with Mr Assange.

Whatever the reason, what is needed is a proper debate and, if it is felt that deception should negate consent (and I don’t think that it should), then a separate offence of ‘sexual activity by deception’ be created. I’m not a fan of creating new laws, but here this would be the appropriate way forward. It’s for Parliament, not the Courts, to extend the law of sexual offences.

18 thoughts on “When is consent not consent?

  1. rachbowyer

    Good well argued and reasoned blog post. Particularly agree with the comment that if this behaviour is to be made criminal then a new offence of ‘sexual activity by deception’ is needed. Smith and Hogan makes the same point.

    I disagree that the law has taken a wrong turn with Assange and F v DPP. In both cases arguably consent had not been obtained to the behaviour described – lack of condom or ejaculation. It is perfectly proper for the jury to decide if there was consent at all. However, this case is all about the gender of the individual not the sexual act so agree with Justine’s defence that these cases should be distinguished.

    EB is very clear that it only applies to passive deception so agree with the court that the question of active deception as to HIV status is still open. However, I find it inconceivable that it would be considered rape.

    Have blogged my take at http://rachbowyer.wordpress.com/2013/06/29/the-justine-mcnally-judgment-homophobic-not-transphobic/

    Reply
  2. Andrew

    Sexual activity with a male is so inherently different to sexual activity with a female that you cannot sensibly treat consent to the former as consent to the latter. It’s not like the man who pretends to be rich and single when he is a much-married pauper. It would have been an abomination if what this defendant did was not within the scope of the criminal law.

    Reply
    1. zoebrain

      “Sexual activity with a male is so inherently different to sexual activity with a female..”

      Please define how to determine whether someone is male or female. Not just in the usual circumstances, but all.

      See for example : RE: SALLY (SPECIAL MEDICAL PROCEDURE) [2010] FamCA 237
      http://home.vicnet.net.au/%7Eaissg/2010_FamCA_237.pdf

      Would “Sally” in future be liable to prosecution if she could not prove that she’d told her partner of her medical history?

      Reply
  3. rachbowyer

    If it is the same physical act and the female is acting like a male, then why is the sexual activity so inherently different? Trying to understand the argument you are making.

    Reply
  4. Jen

    Leaving aside the transphobia and trans-erasure of the court process and this writeup for a moment:

    McNally is prosecuted for doing something where if the law regarded the defendant as being of a different gender there would not be an offence. What a stupid, sexist throwback of a judgement: as Sam Tyler would observe, reading this makes me think I must have had an accident and woken up in 1973.

    It is in short a lousy judgement that brings both the law and the court system into disrepute.

    Reply
    1. Dan Bunting

      Hi Jen – I agree that it’s a lousy judgment. Could you explain why you think that the writeup is guilty of “transphobia and trans-erasure”? I’m not trying to be rude, but it would be helpful to understand why. Thanks.

      Reply
  5. Andrew

    Rachbowyer: If a woman consents to a man doing one of those sexually motivated actions of which both genders are physically capable, she is not consenting to a woman doing it. I can only appeal to the experience of any reader who is not bisexual. That remark is not biphobic if there is such a word: it reflects reality. Those of us who are not bisexual consent to sexual activity with members one gender only and that is our right. “No means No” whoever says it, and the defendant in this strange (and sad) case knew it – that is why she pretended to be male.

    Whether a custodial sentence was necessary and whether the CA was right to reduce and suspend it are other issues.

    Reply
    1. zoebrain

      “That is why he pretended to be male.”

      There, corrected it for you.

      From Littleton v. Prange (9 S.W.3d 223 (Tex. App. 1999), cert. denied, 531 U.S. 872 (2000))

      Taking this situation to its logical conclusion, Mrs. Littleton, while in San Antonio, Tex., is a male and has a void marriage; as she travels to Houston, Tex., and enters federal property, she is female and a widow; upon traveling to Kentucky she is female and a widow; but, upon entering Ohio, she is once again male and prohibited from marriage; entering Connecticut, she is again female and may marry; if her travel takes her north to Vermont, she is male and may marry a female; if instead she travels south to New Jersey, she may marry a male.

      Reply
      1. ajzero

        you’re making the assumption that McNally currently self identifies as male because of the deception perpetrated in this case, which is illogical.

        Reply
  6. Pingback: Justine Justice | Trans Scribe

  7. zoebrain

    This is a UK law blog, so rather than give examples from other jurisdictions, let us look at current UK law.

    The GRA 2004 states in the section on amendments to the Marriage Act
    5 In section 12 (grounds on which a marriage celebrated after 31st July 1971 is voidable), insert at the end—
    “(h) that the respondent is a person whose gender at the time of the marriage had become the acquired gender under the Gender Recognition Act 2004.

    Thus a marriage involving a transitioned Transgender person (at the time of marriage) is inherently voidable.

    I believe the forthcoming new changes to the marriage act now restrict that voidability to a period of 3 years after the date of the marriage, and only if the petitioner was unaware of the situation.

    The GRA 2004 requires a diagnosis of “Gender Dysphoria” (a term not further defined) by a “registered medical practitioner”. This has been further interpreted after 2004 to mean not just a medical practitioner registered with the BMC (from 2006), but licensed to practice (from 2008), hence resident in the UK. This subsequent 2008 re-interpretation effectively excludes all expatriates from consideration, and is certainly contrary to expressed parliamentary intent.

    Furthermore, the Gender Recognition Panel (GRP) has interpreted “Gender Dysphoria” to mean a diagnosis under the WHO’s ICD-10 diagnostic manual of “F64 Transsexuality”. This excludes anyone with an Intersex condition.

    Thus someone with 45,X/46,XY MGD or 3BHSD who looked mostly male at birth (so has a male birth certificate) but who changes to an almost normal female form cannot get a Gender Recognition Certificate. Their birth certificate remains male. (Not a hypothetical case BTW)

    Similarly, someone with 5ARD or 17BHSD who looked mostly female at birth but who changes to look almost normally male can’t get one, even if they father children.

    Exactly what such people have to tell partners to avoid the charge of “deception” is unclear. It’s not clear that anything would suffice..

    Reply
  8. James

    An aspect that does not appear to have been concentrated on:
    McNally stated the he believed that V was aware of his gender.
    Surely the most likely reason V’s Mother challenged McNally about his gender is that V told her Mother?
    If person A APPEARS Male (but may or may not be pretending to be male) but has not stated they are, then person B may claim that person A has deceived person B if person A is actually female?

    Reply
    1. James.Gray@tube.tfl.gov.uk

      Because, in terms of Transgender it is regarded as common courtesy to refer persons in the gender that they are presenting.

      Reply
  9. Andrew

    That begs the question, in the correct use of that phrase.

    Was this individual transgender and was this individual even old enough to form a view on it?

    Reply

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