Expanding Liability for Sexual Fraud Through the Concept of ‘Active Deception’

Published date01 February 2016
AuthorAlex Sharpe
DOI10.1177/0022018315623674
Date01 February 2016
Subject MatterArticles
Article
Expanding Liability for Sexual
Fraud Through the Concept
of ‘Active Deception’:
A Flawed Approach
Alex Sharpe
Keele University, UK; Crime and Justice Research Centre, QUT, Australia
Abstract
This article considers recent judicial expansion of criminal liability for sexual fraud. This has
occurred through the criminalisation of words or conduct considered to amount to ‘active
deception’. In contrast, non-disclosure of information does not attract criminal liability. The
article argues that (i) the distinction between active deception and non-disclosure of infor-
mation provides an inadequate basis for setting the parameters of criminal liability for sexual
fraud, and (ii) the distinction is vulnerable to analytical collapse and therefore criminal law
overreach. In relation to (i), five justifications for reliance on the distinction will be con-
sidered and rejected. These are that criminalisation of active deception is less offensive to
principles of liberty and causality than criminalisation of non-disclosure and that active
deception is more morally culpable, involves a greater violation of sexual autonomy and/or is
more harmful than non-disclosure. In developing this argument the article will draw on
examples of sexual intimacy where one of the parties is HIVþ.Inrelationto(ii),thearticle
will focus on application of the distinction to ‘gender fraud’ claims. The example is a useful
one because it serves to dramatise the problem of judicial slippage between active deception
and non-disclosure.
Keywords
Sexual fraud, rape, active deception, non-disclosure, transgender, cisgender, HIV, liberty,
causality, moral culpability, sexual autonomy, harm
Introduction
This article considers recent legal developments in relation to criminal liability for sexual fraud under
English law. While criminalisation of rape-by-fraud, as opposed to rape-by-force, has always proved
Corresponding author:
Alex Sharpe, School of Law, Keele University, Keele, Staffordshire ST5 5BG UK.
E-mail: a.sharpe@keele.ac.uk
The Journal of Criminal Law
2016, Vol. 80(1) 28–44
ªThe Author(s) 2016
Reprints and permissions:
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DOI: 10.1177/0022018315623674
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contentious,
1
the courts have, through a series of recent cases, extended liability in relation to the former
and indeed sexual fraud more generally. They have done so through invoking an act/omission distinc-
tion, whereby some deceptions that can be characterised as ‘active’, as opposed to ‘passive’, occasion
criminal liability.
2
Not all ‘active’ deceptions produce this effect because the courts have made clear that
some deceptions will, as a matter of ‘commonsense’, not have the effect of vitiating consent.
3
However,
in relation to deceptions the judiciary consider sufficiently material to vitiate consent, establishing crim-
inal liability in the future will turn on whether they are characterised as ‘active’ or ‘passive’. Passive
deception would appear to refer to the non-disclosure of information. The article will not consider judi-
cial reluctance to criminalise all forms of active deception. While the judicial ‘commonsense’ which ani-
mates this approach is questionable,
4
the article will focus on forms of active deception that concern the
courts and which are likely to be viewed as more serious transgressions in normative terms.
For some scholars, irrespective of whether the defendant’s conduct is characterised as non-disclosure
or active deception, convictions for sexual fraud are a step too far.
5
They represent unwarranted state
intrusion into the field of sexual relations. Moreover, concern has been expressed as to whether ‘the
courts can be trusted to draw a clear line between consent that may be regretted in hindsight, and consent
that can be said to have been legally negated’.
6
For others, the distinction represents a failure of the
courts to acknowledge fully the value of sexual autonomy.
7
Most notably, Jonathan Herring has asserted
very clearly, and consistently, that non-disclosure of information, considered material to the complai-
nant, ought to vitiate consent and that liability is appropriate in circumstances where the defendant
appreciates the importance of the information to the complainant.
8
For other scholars again, the problem
is not so much one of too much or too little law, but the wrong kind of law. In particular, they argue that
rape-by-fraud cases are inappropriately labelled, and in ways that fail to capture and communicate the
1. J. Herring,‘Mistaken Sex’ [2005] Crim LR 511; H. Gross,‘Rape, Moralism and Human Rights’[2007] Criminal Law Review 220;
J. Herring, ‘Human Rights and Rape: A Reply to Hyman Gross’ [2007] Criminal Law Review 228; M. Bohlander, ‘Mistaken
Consent to Sex, Political Correctness and Correct Policy’(2007) 71(5) Journal of Criminal Law 412;A. Sharpe, ‘Criminalising
Sexual Intimacy: Transgender Defendants and the Legal Construction of Non-Consent’ [2014] Criminal Law Review 207; K.
Laird, ‘Rapist or Rogue?Deception, Consent and the Sexual Offences Act 2003’[2014] Criminal Law Review 492.
2. Assange vSwedish Prosecution Authority [2011] EWHC 2849 (Admin); R (on the application of F) vDPP [2013] EWHC 945
3. Thus, for example, in McNally, above n. 2, Leveson LJ made clear that s. 74 should ‘be approached in a broad commonsense
way’. He considered lying about financial status to fall outside this ambit (at [25]). This judicial view implies that some types of
deception are too trivial to vitiate consent.
4. Laird, above n. 1 at 505.
5. D. Ormerod, Smith and Hogan’s Criminal Law, 13th edn (Oxford University Press: Oxford, 2011) 734; A.P. Simester et al.,
Criminal Law: Theory and Doctrine, 4th edn (Hart Publishing: Oxford, 2010) 755; Gross, above n. 1; Bohlander, above n. 1. It
may also be that expansion of criminal liability in this area is out of step with community sentiment. In one US study (D.P.
Bryden, ‘Redefining Rape’ (2000) 3 Buffalo Criminal Law Review 317, 470–5, 480–7), 519 male and female respondents across
a range of age cohorts were asked to indicate whether criminal penalties were appropriate in relation to 18 specific examples of
deception prior to sex. A majority of respondents answered affirmatively in relation to only five, one of which also involved
coercion. The other four examples concerned intimate medical examination, impersonation of the victim’s husband, lying about
having a venereal disease and failing to disclose a venereal disease (471–2). Interestingly, in the English context, the first two
are covered by s. 76 of the Sexual Offences Act (SOA) 2003, while the third falls with the ‘active deception’ category developed
by the courts. Only the final example falls outside English law. In relation to deception concerning ‘infidelity, wealth, marital
status, use of a birth control device (by a woman), intention to marry, [and] intention to pay a prostitute’ the respondents
‘rejected criminal liability by a wide margin’ (472).
6. C. McCartney and N. Wortley, ‘Raped by the State’ (2014) 78(1) Journal of Criminal Law 1at3.
7. Herring, above n 1. See also S. Schulofer, ‘Taking Sexual Autonomy Seriously’ (1992) 11 Law and Philosophy 35 at 90; D.
Archard, Sexual Consent (Boulder, CO: Westview Press, 1998); A. Wertheimer, Consent to Sexual Relations (Cambridge:
Cambridge University Press, 2003); T. Dougherty, ‘Sex, Lies and Consent’ (2013) 123(4) Ethics 717.
8. Herring [2005], above n. 1 at 517. Herring has acknowledged that few legal scholars are prepared to endorse his position (J.
Herring, Criminal Law: Text, Cases and Materials, 5th edn (Oxford University Press: Oxford, 2012) 484. Indeed, Andrew
Simester and David Ormerod, respectively, have described it as ‘preposterous’ and as ‘frightening in its ramifications’ (A.P.
Simester et al., above n. 5 at 755; Ormerod, above n. 5 at 734).
Sharpe 29

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