Conditional Consent and Purposeful Deception
| Author | Amanda Clough |
| DOI | 10.1177/0022018318761687 |
| Published date | 01 April 2018 |
| Date | 01 April 2018 |
| Subject Matter | Articles |
The Journal of Criminal Law
2018, Vol. 82(2) 178–190
Conditional Consent and
ª The Author(s) 2018
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DOI: 10.1177/0022018318761687
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Amanda Clough
Liverpool John Moores University, UK
Abstract
The media has recently given much attention to the ‘stealthing’ trend, undisclosed condom
removal during sex and how this may affect consent to sexual activity. This paper seeks to
discuss where situations like this sit within the Sexual Offenses Act 2003, and how it may
compare to other instances of consent gained in deceitful circumstances.
Keywords
Consent, rape, deception, Sexual Offences Act 2003
Introduction
The Sexual Offences Act 2003 offered transformation rather than mere reform of the rules regarding
consent. The foundations of such change lay with a desire to give a clear and unambiguous interpretation
of the very core of sexual offences. The law in England and Wales interprets rape as a crime of violation
of autonomy rather than violence. However, without force it is much harder to prove, leaving a gap
between principle and practice,1 where physical evidence appears to be vital.2 Jurors expect to see
evidence of a struggle, based upon rape myths perpetuated by the ‘stranger danger’ lesson most learn
as children.3 This may account for the spectacularly low conviction rate,4 described as ‘unjustifiably
low’,5 which is not unique to England and wales.6
1. S. Leahy, ‘“No Means No”, But Where’s the Force? Addressing the Challenges of Formally Recognising Non-Violent Sexual
Coercion as a Serious Criminal Offence’, (2014) 78(4) Journal of Criminal Law 309–25.
2. V. E. Munro, ‘An Holy Trinity? Non-Consent, Coercion and Exploitation in Contemporary Legal Responses to Sexual Vio-
lence in England and Wales’, (2010) 63 Current Legal Problems 45 at 54.
3. L. Ellison and V. E. Munro, ‘Jury Deliberation and Complainant Credibility in Rape Trials’ in C. McGlynn and V. E. Munro
(ed.), Rethinging Rape Law: International and Comparative Perspectives (Routledge: Oxford, 2010) 285.
4. rapecrisis.org.uk/statistics.
5. C. McGlynn, ‘Feminist Activism and Rape Law Reform in England and Wales: A Sisyphean Struggle?’ in C. McGlynn and V.
E. Munroe (ed.), Rethinking Rape Law: International and Comparative Perspectives (Routledge: Oxon, 2011) 210.
6. Scotland’s conviction rate is similarly low at 3.9%—see P. Ferguson, ‘Reforming Rape and Other Sexual Offences’, (2008)
12(2) Edinburgh Law Review 302–7 at 303.
Corresponding author:
Amanda Clough, UK.
E-mail: a.clough@ljmu.ac.uk
Clough
179
In reality, the cases featuring circumstances of the s. 75 provisions7 are much more obvious to the lay
person as rape—a person tied up, threatened with force or unconscious. The real problems of legal
discourse surround cases of consent given in uninformed circumstances. If one party deceives the other
about a particular circumstance or detail, does this negate consent, and does the same apply for withheld
information? In the 21st century, we have come to presume that modern sexual relationships should be
founded on mutual respect and understanding.8 How is this possible without the truth? The difference
between a legal act and one that carries a very serious custodial sentence is this one single concept, a line
drawn between legal and illegal, the moral and the immoral.9 Consent takes centre stage.10 What is less
clear about the concept of consent is the information needed to make a decision with the ‘freedom and
capacity’ s. 74 refers to.11
It is speculated that who the person is, what the act is and the consequences of the act are the essential
ingredients to informed consent.12 For this reason, we have conclusive presumptions that vitiate consent
in such circumstances, contained within s. 76. If you are impersonating a person known to the victim, or
deceitful as to the nature or purpose of the act, any consent gained under such circumstances is not valid
in law, and without defence. If any of these ‘ingredients’ are withheld purposely by the accused for the
purpose of obtaining consent to a sexual act, this is a very active deception.13 Herring advanced a very
robust idea for moving forward in this area, asking if the accused’s act was that which the victim
consented to, rather than if the victim’s mistake vitiated consent. Essentially, did the victim know what
they were consenting to, rather than did they say yes.14 This framework would certainly see the ‘steal-
thing’ cases prosecuted, where the victim does not know that they are involved in an act of unprotected
sex. This new ‘sex trend’ has had widespread media attention in recent months.15 One victim of an act of
stealthing called the activity that took place ‘such a blatant violation of what we’d agreed to’ in that it
had broken the boundary that she had set.16 Without Herring’s legal ideals, this is not a s. 76 act of
deception, but a possible removal of the victim’s freedom and capacity to choose whether to consent.
Brodsky argues that those accused of stealthing are acting from the ideology that male supremacy and
violence are a man’s ‘natural right’,17 unaware that this new ‘sex trend’ is actually sexual assault.18
Unfortunately, it appears not everyone within the criminal justice process may be on the same page when
it comes to valid consent in such situations, with one victim referring to the police asking if they could
bring in the man to ‘give him a scare’ rather than press charges which might ruin his life, a possible result
of those ever-present rape myths contaminating law enforcement officials.19
7. Sexual Offences Act 2003, s. 75 (a–f).
8. Home Office Report Setting the Boundaries (2000) para. 2.7.2.
9. S. Knight, ‘Libertarian Critiques of Consent in Sexual Offences’, (2012) 1(1) UCL Journal of Law and Jurisprudence 137–65
at 138.
10. J. E. Stannard, ‘The Emotional Dynamics of Consent’, (2015) 79(6) Journal of Criminal Law 422–36 at 425.
11. Sexual Offences Act 2003, s. 74.
12. Knight, above n. 9 at 150.
13. See C. McCartney and N. Wortley, ‘Raped by the State’, (2014) 78(1) Journal of Criminal Law 1–3, where undercover agents
created fictional characters and had sexual relationships with targets, the victims later claiming this was a false relationship
involving active deception.
14. J. Herring, ‘Mistaken Sex’, (2005) 7 Criminal Law Review 511–24 at 514.
15. See ‘Stealthing – What You Need to Know’ bbc.co.uk 25 April 2017; ‘California Bill Seeks to Add Stealthing to Rape
Definition’ washingtontimes.com 17 May 2017; ‘Stealthing: Man Explains Why He Takes Off Condom during Sex’ inde
pendent.co.uk 17 May 2017; ‘Stealthing Isn’t a Sex Trend. It’s Sexual Assault – And It Happened to Me’ theguardian.com 22
May 2017.
16. A. Brodsky, ‘Rape Adjacent: Imagining Legal Responses to Nonconsensual Condom Removal’, (2017) 32(2) Columbia
Journal of Gender and Law 183–210 at 187.
17. Ibid. at 189.
18. ‘Stealthing Isn’t a Sex Trend. It’s Sexual Assault – And It Happened to Me’ theguardian.com 22 May 2017 (accessed 1
December 2017).
19. Ibid.
180
The Journal of Criminal Law 82(2)
Herring likens deceit to violence, in that it manipulates the victim into acting against their will by
restricting the viable options available.20 It is true that, in law, force and fraud are generally treated as
equivalents (in property offences, for instance).21 Stannard summed up the difference between the two:
Where consent is obtained by threats, we are in the emotional realm of fear: where it is obtained by
inducements, we are in the emotional realm of hope. 22
Herring’s idea has not been without criticism,23 with Gross conversing that s. 76 was never meant to
cover cases of misrepresentation of feelings or small lies as part of persuasion and ‘gambits in a game of
seduction’.24 How this fits with rape’s simplistic idea of ‘non-consensual penetration’ is unclear.25
Essentially, the harm caused by breaking the boundaries of any consent given to a sexual act is an
abuse of trust, which proves to be disempowering and demeaning to the victim,26 with one partner
violating the rights of the other.27 As Schulhofer has shrewdly observed:
Sexual autonomy, like every other freedom, is necessarily limited by the rights of others.28
We have the right to have sexual relations with a partner, and we have the right to refuse. Never-
theless, we must counter the culture of ‘no means no’ by also recognising that ‘yes means yes’.29
Sexual Offences Act 2003
The Sexual Offences Act 2003 gave new life to our piecemeal combination of common law and statute to
some of the most heinous crimes a person can commit. For consent, no longer could the accused rely on
an honest but unreasonable belief that their victim consented. Instead, we have a law that requires a
person has freedom and capacity to make a choice, with the accused having a defence only if they had a
reasonable belief that their victim consented, and had taken all steps necessary to ascertain this.30 Along
with this, an exhaustive list of rebuttable presumptions is given as to situations where consent will be
presumed to be absent or invalid, lastly, the evasive conclusive presumptions which appear to be rarely
satisfied.31 Why any of these presumptions about consent were needed is a mystery, as it is unlikely
judge and jury would find valid consent in a situation where a person was subject to violence, drugged,
threatened, falsely imprisoned or lied to about the nature of the act. Inclusive conduct models can be
troublesome, which...
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