Consent (criminal Law) - Consent Obtained By Deception

Consent Obtained By Deception

In R v Clarence (1888) 22 QBD 23, at a time when the defendant knew that he was suffering from a venereal disease, he had sexual intercourse and communicated the disease to his wife.

Had she been aware, she would not have submitted to the intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to section 20 of the Offences against the Person Act 1861. On appeal the conviction was quashed. Mr Justice Willis said:

...that consent obtained by fraud is no consent at all is not true as a general proposition either in fact or in law.

Mr Justice Stephens had said (at p. 44):

...the only sorts of fraud which so far destroy the effect of a woman's consent as to convert a connection consented to in fact into a rape are frauds as to the nature of the act itself, or as to the identity of the person who does the act. Consent in such cases does not exist at all because the act consented to is not the act done.

Until recently, the case has never been challenged, but its current status was complicated by the then general assumptions that "infliction" required some act of violence, and that non-physical injuries could not be inflicted and so were outside the scope of the Offences Against the Person Act.

Now the ruling in R v Chan-Fook 1 WLR 689, which held that psychiatric injury could be actual bodily harm, has been confirmed by the House of Lords in R v Burstow, R v Ireland 1 Cr App R 177. These cases overrule the implicit ratio decidendi of Clarence that non-physical injuries can be injuries within the scope of the Offences Against the Person Act and without the need to prove a physical application of violence, Lord Steyn describing Clarence as a "troublesome authority", and, in the specific context of the meaning of "inflict" in section 20, said expressly that Clarence "no longer assists".

This left the issue of fraud. In R v Linekar QB 250, a prostitute stated the fact that she would not have consented to sexual intercourse if she had known that her client was not intending to pay, but there was no fraud-induced consent as to the nature of the activity, nor was the identity of the client relevant. In R v Richardson 2 Cr App R 200, the patient believed that she was receiving dental treatment which otherwise would have given rise to an assault occasioning actual bodily harm, from a dentist who had in fact been struck off the register. The Court held that the identity of the defendant was not a feature which, in that case, precluded the giving of consent by the patient. In R v Navid Tabassum (May, 2000) the three complainant women agreed to the appellant showing them how to examine their own breasts. That involved the appellant, himself, feeling the breasts of two of the women and using a stethoscope beneath the bra of the third woman. Each of the three women said that they had only consented because they thought the appellant had either medical qualifications or relevant training. He had neither. There was no evidence of any sexual motive. He was convicted on the basis that the complainants had only consented to acts medical in nature and not to indecent behaviour, that is, there was consent to the nature of the act but not its quality. In R v Cort 3 WLR 1300, a case of kidnapping, the complainants had consented to taking a ride in a car, but not to being kidnapped. They wanted transport, not kidnapping. Kidnapping may be established by carrying away by fraud. "It is difficult to see how one could ever consent to that once fraud was indeed established. The 'nature' of the act here is therefore taking the complainant away by fraud. The complainant did not consent to that event. All that she consented to was a ride in the car, which in itself is irrelevant to the offence and a different thing from that with which Mr Cort is charged".