Jacqui, then aged 22, first began her relationship with Bob Robinson in 1984 whilst they were both involved in the animal rights movement. A year later, the couple agreed to try for a baby; their son was born in 1985. The two however, began to drift apart afterwards and Bob informed Jacqui he needed to escape the country for Spain. She lost all contact with him.
Last year, Jacqui was shocked to see a photograph of Bob Robinson in the newspaper – but this time he was identified as Bob Lambert. Lambert had in fact been an undercover officer working for Special Branch, using his relationships with Jacqui and three other women to infiltrate protest groups. At the same time he was raising a son with Jacqui, he already had a wife and two children in his real life.
Former Solicitor General, Vera Baird QC, has argued that these police officers may have committed rape…
This case is far from unique. Dispatches and The Guardian claim to have identified at least nine undercover police officers who have had sexual relationships with their targets, and several campaigners are now claiming damages from the police. The former Solicitor General, Vera Baird QC, has argued that these police officers may have committed rape by deceiving women into sex, and that both the officers and their superiors are in a “very vulnerable” legal position. This article will critically examine Baird’s claim.
The alleged sexual encounters span a period of decades, including some as recent as 2010, and therefore both pre and post-date the Sexual Offences Act (SOA) 2003. The defendant (D) commits rape, as defined by Section 1 of SOA 2003; if he intentionally penetrates the mouth, vagina or anus of the victim (V) with his penis, V does not consent and D does not reasonably believe that V consents. At common law, deception would only vitiate consent in narrow circumstances: namely, where the fraud was as to the nature of the act (e.g. V believed that the intercourse was really a medical procedure – Flattery (1877) 2 QBD 410) or where D impersonated the spouse or partner of V (e.g. Elbekkay  Crim LR 163). Indeed, it is difficult to see how there could be consent in these circumstances: if V consents to a medical examination, she does not consent to sexual intercourse; if V consents to sex with Derek, she does not consent to sex with Darren.
In R v Clarence (1888) 22 QBD 23, the Court of Appeal held that a man who had infected his wife with gonorrhoea had committed no assault; the concealment of his disease and infidelity did not negate her consent to intercourse. “That consent obtained by fraud is no consent at all is not true as a general proposition either in fact or in law,” stated Wills J: otherwise any adulterer, bigamist or silver-tongued charmer would be similarly guilty of rape. This approach was followed in R v Linekar  QB 250, where the defendant made off without paying, after sex with a prostitute: the Court of Appeal held his insincere promise to pay did not negate consent. The High Court of Australia took a similar view in Paradimotropoulos (1957) 98 CLR 249, quashing the conviction of a man who had dishonestly convinced his girlfriend they were lawfully married.
Under Section 74 of SOA 2003, a person consents ‘if he agrees by choice, and has the freedom and capacity to make that choice.’ Deception is covered by Section 76, which raises a conclusive presumption that V did not consent to the act and D had no reasonable belief in consent if:
(a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act; [or]
(b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.
At common law, deception would only vitiate consent in narrow circumstances…
In 2006, the Court of Appeal re-emphasised the applicability of the pre-2003 case law. In R v B  1 WLR 1567, it held that the defendant’s failure to disclose that he was HIV-positive was in no way relevant to the question of consent under Sections 74 or 76 of SOA 2003; the Court of Appeal had reached the same conclusion obiter in R v Dica  QB 1357. However, Baird believes that this centuries-old view – that deception does not generally vitiate consent in such cases – has been eroded by three recent cases in particular.
In Jheeta  1 WLR 2582, the victim received threatening text messages which, unbeknown to her, originated from the defendant – her boyfriend. Jheeta offered her protection and offered her texts pretending to be from the police which stated that if she refused sex and tried to leave the relationship, Jheeta would kill himself and she would be criminally responsible. The Court of Appeal upheld his conviction after he pleaded guilty. The case did not fall under Section 76 of SOA 2003: neither “disingenuous blandishments” nor “common or garden lies” would raise any conclusive presumptions. However, the defendant had pressured the victim to have sex more frequently than otherwise through his “complicated and unpleasant scheme”, and so there was no free choice or consent.
Jheeta was cited in Assange v Sweden  EWHC 2849 (Admin). The WikiLeaks founder was wanted for extradition to Sweden on accusations of sexual assault and rape: it was alleged that after a woman had told him to wear a condom, he initiated sexual intercourse without one. The issue was whether this would amount to rape under English law: the High Court held it could. Whilst any deception would not fall under section 76, it would fall under section 74:
It would plainly be open to a jury to hold that, if [the complainant] had made clear that she would only consent to sexual intercourse if Mr Assange used a condom, then there would be no consent if, without her consent, he did not use a condom, or removed or tore the condom without her consent. His conduct…would therefore amount to an offence under the Sexual Offences Act 2003, whatever the position may have been prior to that Act.
Finally, in R(F) v DPP  EWHC 945 (Admin), the applicant had agreed to intercourse with her then partner on the understanding they would practise the withdrawal method of contraception. Despite this, he – allegedly – deliberately ejaculated inside her contrary to her wishes. The High Court held that because withdrawal had been the “crucial feature on which her original consent” was founded, his deception deprived her of any choice and so, if proven, would amount to rape. Baird relies on these precedents to argue that, by hiding their true identities, undercover police officers like Lambert deprived women of a free choice and so may be guilty of rape.
The case law on this subject is thus somewhat contradictory and Vera Baird QC concedes it is a grey area, stating “all bets are off” if a case ever came to court. In particular, the most recent High Court cases seem to conflict with older precedent and lead to some illogical consequences. R v B and Assange are particularly difficult to reconcile: suppose A and B each have an STI. A admits this but falsely promises he will use a condom, whilst B falsely tells his partner he is clean: their partners agree to intercourse on the basis of these assertions. A (following Assange) would be guilty of rape whereas B (following R v B) would be acquitted, even though both have deceived their partners into having unprotected sex. This seems a wholly unsatisfactory distinction.
Similarly, it is difficult to see why the promise to withdraw before ejaculation in R(F) v DPP was a “crucial feature” of consent, but the promise to pay in Linekar and the promise to abide by marital vows in Clarence were not. As a matter of stare decisis, the Court of Appeal’s judgments must take precedence over any inconsistent High Court case law. It is doubtful that Parliament intended to transform the law relating to deception in enacting the SOA 2003: the statutory definition in section 74, after all, refers to the “freedom” and “capacity”, but not the “information” necessary to make a valid choice. The Law Commission in its 2000 report on Consent in Sexual Offences had expressly rejected the view that any deception negated consent. Moreover, the SOA 1956 had included an offence of “procuring intercourse by false pretences” which was abolished by the 2003 Act and replaced by a more limited set of offences in sections 34-37 criminalising deception only where the victim had a mental disorder. It seems unlikely that Parliament, having abolished the general offence, then silently decided to resurrect it by the back door.
“All bets are off” if a case ever [comes] to court…
Furthermore, there are policy reasons to reject Baird’s approach. The gist of her argument appears to be that, if V’s consent to sex is based on a mistaken belief and D knows or ought to know this, then D is guilty of rape. This would – however – lead to criminalisation in a wide range of scenarios:
- Andrew is secretly having an affair but denies this to his wife. They later have sex.
- Barney exaggerates his financial success and pretends to like the same music and films as his date in order to impress her. They later have sex.
- Charlie dyes his hair and pretends to be in his mid-30s on a dating website when he is really in his 50s. He later has sex with someone he meets online.
- Derek is unhappy in his marriage and is considering whether to leave his wife. He does not mention his misgivings before the two have sex.
In each case, their sexual partners would not have consented had they known the truth and a reasonable person might be expected to realise this. By Baird’s standard, all four men must therefore be rapists. Indeed, any man or woman who lies about or fails to disclose to their partner their true romantic feelings, their number of previous sexual partners, their criminal history, their sexual health, their gender at birth, their religious or racial background, their financial status or any potentially embarrassing secret would be liable to conviction for a serious sexual offence. It cannot be presumed that Parliament intended to criminalise such a wide range of behaviour in 2003. Baird’s view would lead to the inadvertent (re-)criminalisation of adultery and breach of promise.
It might be objected that requiring lovers to perform disclosure and exhibit all the skeletons in their closet before their first sexual contact is wholly unrealistic…
Lest this seem far-fetched; in Israel, men have been convicted of rape after concealing their true age, marital status or occupation. Most controversial was the conviction of a Palestinian man who had pretended to be Jewish.  Some commentators, such as Jonathan Herring, would like to see similar “rape by fraud” laws in the UK.  Herring argues that if Ted induces Mary to sleep with him by falsely telling her he loves her and will call her in the morning, he ought to be convicted of rape. After all, he reasons, if Mary transferred gifts to him in reliance on his false avowal of love, Ted would be guilty of fraud; why should obtaining sex by deception be treated any differently? Yet it is extremely doubtful whether a conviction for fraud would be possible, since courts are understandably reluctant to rule on whether declarations of love have been heartfelt (e.g. Askew v Askew (1994) 22 Cal App 4th 942). Moreover, as Hyman Gross notes, it is bizarre to equate arm’s length commercial negotiations with sexual relationships and to treat sex as just another commodity.  Ironically, Herring’s analogy harks back to an era where women were regarded as chattels – and chastity, their greatest asset.
Herring believes that convicting Ted in these circumstances would encourage greater “mutual respect, reciprocity, connection and honesty” in relationships. Of course, it might be objected that requiring lovers to perform disclosure and exhibit all the skeletons in their closet before their first sexual contact is wholly unrealistic, and one might be wary of the consequences for personal privacy (not to mention any semblance of romance). In any case, the rightful domain of the criminal law is hardly to regulate the proper level of openness and trust within a relationship; dating advice is best left to agony aunts and not lawyers.
Finally, as the Court of Appeal acknowledged in R v B, imposing liability for rape where a defendant fails to disclose a STI is an issue raising questions of health and public policy which requires public consultation and debate. Herring makes clear that his goal in criminalising such deception, along with many other examples of mistaken consent, is to effect a ground-breaking change in sexual relations. That he is happy for the courts to legislate such a change into existence based on a tortured reading of the SOA 2003 – rather than commend the issue to Parliament – is highly concerning.
Baird’s article highlights some of the conflicting case law in this complex and confusing area of law, and it is hoped that the appellate courts will one day offer clearer guidance. There are, however, cogent reasons to reject the notion of “rape by fraud” as contrary to Parliament’s intention in passing the SOA 2003 and as both unworkable and hugely overbroad. Herring’s proposals would criminalise infidelity and what Michael Bohlander dubs “malicious sweet-talking”.  State intrusion into such an intimate area of its citizens’ romantic lives is likely to undermine sexual autonomy, not protect it.
Whilst prosecutions under the pre-2003 law for procuring intercourse under false pretences may be possible, undercover police officers are therefore likely to escape liability for rape. This should not, however, be viewed as an endorsement of police tactics or a denial of their former lovers’ feelings of hurt and betrayal. On the contrary, it is difficult to justify police infiltration of protest groups and the grieving family of Stephen Lawrence as compatible with their Article 8 and 11 rights. The police certainly have a lot of questions to answer. See E. Volokh, “Israeli Rape By Fraud Cases” (7 October 2010) http://www.volokh.com/2010/10/07/israeli-rape-by-fraud-cases/
 J. Herring, “Mistaken Sex”  Crim LR 511; J. Herring, “Human Rights and Rape: A Reply to Hyman Gross”  Crim LR 228
 H. Gross, “Rape, Moralism, and Human Rights”  Crim LR 220
 M. Bohlander, “Mistaken Consent to Sex, Political Correctness and Correct Policy”  J Crim L 412