The Impossible Trinity of Deception, Sex and Consent
| Author | Shivam Kaushik |
| Published date | 01 December 2021 |
| Date | 01 December 2021 |
| DOI | http://doi.org/10.1177/00220183211024760 |
| Subject Matter | Articles |
Article
The Impossible Trinity
of Deception, Sex and Consent
Shivam Kaushik
Banaras Hindu University, India
Abstract
During the last couple of centuries, the English law dealing with sexual conduct has made a
decisive shift towards a ‘consent-based model’ of rape law. But strikingly, deceptive sexual
relationships (DSR) have been untouched by this development as lately reaffirmed by the
Court of Appeal in R v Jason Lawrence. If rape is defined as sex without consent, then DSR ought
to be no exception, because the general proposition of law is that consent induced by
deception is no consent at all. In making a case for the criminalisation of DSR, this article (1)
arrays the lack of uniformity in court’s jurisprudence on DSR and (2) brings along the sexual
autonomy theory to support its case.
Keywords
Deceptive sexual relationship, Sexual Offences Act 2003, consent, R v Jason Lawrence, sexual
autonomy
Introduction
James and Mary meet at a club. Mary wants to have sex with James but only if he is a bachelor. James,
who is married, gets to know about it. He lies to Mary that he is indeed a bachelor and consequently, they
have a sexual encounter. After the disclosure of James’ deception, Mary claims that the sexual activity
was nothing but rape as she never consented to have sex with a married man. In this hypothetical plot,
can James be held liable for raping Mary? Rape, as is widely accepted means having sex without the
consent of the victim.
1
So, in the illustration mentioned above, if there was no consent on Mary’s part,
this sexual encounter will qualify as rape simpliciter.Fromaprima facie view, it seems that Mary, as a
matter of fact, did consent. But the question is what effect does deception has on the legal validity of
consent.
Corresponding author:
Shivam Kaushik, Faculty of Law, Banaras Hindu University, Varanasi, Uttar Pradesh 221005, India.
E-mail: accessshivam16@gmail.com
1. See Sexual Offences Act 2003, s 3; Indian Penal Code 1860, s 375; Rape definition, FBI’s Uniform Crime Report: Crime in the
United States, 2013 <https://ucr.fbi.gov/crime-in-the-u.s/2013/crime-in-the-u.s.-2013/violent-crime/rape/rapemain_final.pdf>
accessed 29 November 2020.
The Journal of Criminal Law
ªThe Author(s) 2021
Article reuse guidelines:
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DOI: 10.1177/00220183211024760
journals.sagepub.com/home/clj
2021, Vol. 85(6) 415–424
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