False Beliefs and Consent to Sex
| Published date | 01 September 2022 |
| Author | Mark Dsouza |
| Date | 01 September 2022 |
| DOI | http://doi.org/10.1111/1468-2230.12738 |
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Modern Law Review
DOI:10.1111/1468-2230.12738
False Beliefs and Consent to Sex
Mark Dsouza∗
When,if ever,do mistaken beliefs render sexual activity non-consensual despite a person’sseem-
ing consent? I suggest that existing answers can be improved upon by paying due attention to
two things, (1) that valid consent is often given through exercises of sexual autonomy that are,
to dierent extents,unreective rather than considered; and (2) that a belief can dene both the
object of consent,and a precondition for it. I propose that where V putatively consents to sexual
activity with D,the falseness of a belief that V holds renders the sexual activity non-consensual
when it means either that what happened to V fell outside the (consideredly or unreectively
selected) boundaries of the object of V’s consent,or that a precondition that V consideredly set
for her consent, had not been met.
INTRODUCTION
Do some mistaken beliefs render sexual activity non-consensual despite a per-
son’s seeming consent? And if so, which? Most agree that a good answer to
these related questions must protect the sexual autonomy that makes consent
possible, while generating plausible liability outcomes – convicting those who
should be convicted, and acquitting those who should not – when translated
into (criminal) law. But nding a good answer has proved dicult. Strongly
protecting sexual autonomy appears to generate convictions that are arguably
too harsh; presumably we do not want to live under a regime in which every
embellished compliment, every padded claim about one’s height or wealth, and
every understatement of one’s age that preceded sexual activity, exposes us to
the risk of being convicted of a sexual oence. But in trying to prevent such
overly harsh convictions,we undermine the sexual autonomy of people whose
exercise of sexual autonomy was predicated on a deception. Such people are
left under-protected against sexual assault. Nor, as I explain in a bit more detail
below, has any stable middle ground between these extremes emerged.
In this paper, I argue that a good solution to this conundrum is available
if we pay due attention to two things: (a) that valid consent is often given
through exercises of sexual autonomy that are, to a greater or lesser extent,
∗Associate Professor of Law, University College London. I am grateful for the excellent research
support provided by Ellen Steiner.My thanks also to Jonathan Herring, Max Kiener, Rachel Tolley,
David Emanuel QC, Matt Gibson, Chloë Kennedy,Kevin Toh,John Child, and Emma Milne for the
detailed feedback on previous drafts. Drafts of this paper were presented at various seminars, and I
thank the attendees for their insightful comments, suggestions and criticisms. In particular, I thank
Antony Du, Sharon Cowan,James Chalmer s, and Tanya Palmer for engaging in spirited discussions
with me during these seminars. Finally, thanks also to the anonymous reviewers for their feedback
and suggestions.
© 2022 The Author s. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2022) 85(5) MLR 1191–1217
This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which permits
use and distribution in any medium, provided the original work is properly cited,the use is non-commercial and no modications or
adaptations are made.
False Beliefs and Consent to Sex
unreective rather than considered; and (b) that a belief can dene both the
object of consent, and a precondition for it.
I argue that whenever V putatively consents to sexual activity with D, she
denes the boundaries of the object of her consent. She may also, at that time,
set preconditions for her consent to arise. It follows that where V putatively
consents to sexual activity with D, the falseness of a belief that V holds renders
the sexual activity non-consensual when it means either that what happened
to V fell outside the (consideredly or unreectively selected) boundaries of the
object of V’s consent, or that a precondition that V consideredly set for her
consent, had not been met.
The non-consensual nature of the sexual activity is a necessary condition
for holding D criminally liable, but matters like whether D acted with mens
rea, or had a defence, are also crucial. Since my focus here is on whether the
sexual activity was non-consensual, I venture only incidental comments on D’s
potential criminal liability.
PREVIOUSLY, ON FALSE BELIEFS AND PUTATIVE CONSENT
It is generally accepted that consent is an important variable to consider when
determining whether sex is criminally wrong. The standard view is that V’s
consent to sex negates the actus reus of a criminal oence, whereas D’s be-
lief (or in this jurisdiction, reasonable belief) in V’s consent negates the mens
rea of the oence. Philosophically, consent is explained as an exercise of sexual
autonomy – the authority to choose for oneself , whether,and in what circum-
stances, one will engage in sexual activity. It is argued that V’s exercise thereof
to grant putative consent is vitiated when she lacked competence,acted under
compulsion, or acted under a misapprehension of relevant facts. Here, I focus
on the last of these factors. In this necessarily brief survey of how thinking on
this issue has hitherto proceeded I outline some of the main lines of argument
developed.
Some, like Herr ing1and Dougherty,2argue that to truly protect V’s sexual
autonomy, we must defer to V in her selection of which f acts are relevant.This,
they say,entails adopting the r ule that if at the time of the sexual activity, V was
mistaken as to any ‘dealbreaker’ belief (ie a belief that, if V knew it was false, V
would not have consented to sexual activity), then legally, V did not consent to
it. Call this the ‘Subjective Dealbreakers’view.
Others attempt to enumerate the features, false beliefs as to which will vi-
tiate seeming consent. Such enumerations require us to make a fundamen-
tal distinction3– usually by reference to objective policy considerations like
clarity, coherence, predictability, and practicality4– between dierent features
of a sexual encounter. Accordingly, Williams tentatively suggests that only the
1 J. Herring, ‘Mistaken Sex’[2005] Cr im LR 511,517.
2 T. Dougherty,‘Sex, Lies, and Consent’ (2013) 123 Ethics 717, 719, 736-737.
3ibid, 728.
4 See for instance R. Williams, ‘Deception, mistake and vitiation of the victim’s consent’ (2008)
124 LQR 132, 158.
1192 © 2022 The Author s. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law ReviewLimited.
(2022) 85(5) MLR 1191–1217
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