While in the commercial arena, when consent has been fraudulently obtained, the contract may be set aside, in sexual affairs, consent obtained through deception is vitiated only in a very narrow fraction of instances, covered by section 76 of the Sexual Offences Act 2003. The reluctance to recognise sex by deception as a form of rape stems from a view of sex informed by the principle caveat amator, such that it is not for the courts to offer protection to those who have been duped into consenting to sex, as more often it will be found that they consented to the penetration but not to the issue at hand. This article will explore the importance of consent when dealing with rape allegations and examine the applicability of SOA 2003 s.76, in the hopes of demonstrating the false dichotomy that has arisen between rape and sex by deception.
The absence of consent in sexual penetration is tantamount to rape, as the actus reus and mens rea require the defendant knowing or being reckless as to whether the complainant consented to the sexual penetration. The Act provides that a person consents when they agree by choice and have the freedom and capacity to make that choice. The freedom to agree by choice is the lynchpin of consent and seemingly any restriction placed upon it should result in its negation. When an individual is forced into consenting under the threat of violence, their consent is vitiated, as they did not have the freedom to make that choice.
If it is taken that consent must be freely given, this would mean that individuals are under a duty to disclose any ‘material facts bearing significantly on the decision to consent.’ If an individual consents without all the facts necessary to make an informed choice, their consent has not been freely obtained. This is similar to instances where consent was obtained under the threat of violence, as here, the individual’s freedom to consent has been restricted through the creation of false beliefs.
It would follow that any instance wherein consent was deceptively obtained would result in some form of statutory protection, however this is not the case. Section 76 SOA 2003 introduces conclusive presumptions regarding the complainant’s consent, including instances where the defendant intentionally deceived the complainant as to the nature or purpose of the sexual act or when the complainant was deceived as to the identity of the defendant. The wording of this section demonstrates that protection is afforded to those who have been deceived as to the actual act of sexual intercourse, but not to those whose consent has been obtained through fraudulent representations that are seen as secondary to the act. This distinction is demonstrated by comparing R v Williams and R v Linekar. In Williams, a successful rape charge was brought against the defendant who duped the complainant into engaging in sexual intercourse under the false pretence of it opening her air passage. In Linekar, the complainant engaged in sexual intercourse with the defendant under the assumption that the defendant would pay her for her services. The defendant’s deception was deemed unrelated to the nature of the act, and so his conviction was quashed.
This begs the question of whether payment for a prostitute’s services is material to the prostitute consenting to sexual affairs, or whether it is a different matter altogether. Determination of this allows for an understanding of which facts are deemed as relating to the nature or purpose of the act, and which are secondary and have no weight on an individual’s ability to consent. Once this distinction has been drawn, it will be clearer as to which instances merit protection and which should be approached cautiously. Linekar demonstrates the principle of caveat amator, as the complainant was seen as consenting to the sexual penetration and her lack of payment was simply a consequence of her line of work. Whether she would have consented had she known the defendant had no intention of paying her was seen as immaterial, even though it is arguably a material fact weighing on her ability to consent. The defendant created a false belief system, thereby restricting the complainant’s freedom to consent, which should be seen as a negation of her consent.
Similarly, a concealment of an individual’s sexual health history should result in obtained consent being vitiated, however, this has not been the case. Arguably, if an individual is aware that they carry a sexually transmitted infection, disclosure of their condition would seem as the reasonable precaution they should take prior to engaging in unprotected sex, as it may alter the other individual’s decision to consent. However, this has not been the approach taken by the courts. In R v Dica and R v Konzani it was demonstrated that the concealment of a defendant’s HIV-positive status meant that a complainant would be inevitably deceived, as consent would not have been informed. The defendants were not charged with rape, but rather grievous bodily harm under s.20 of the Offences Against the Person Act 1861. In R v EB it was determined that a defendant’s lack of disclosure regarding his HIV-positive status was not ‘relevant to the issue of consent under s.74.’
The courts have taken the view that sex is a form of risky behaviour and infection, like pregnancy, is a risk that the individuals have assumed—hence the guiding principle caveat amator. However, in justifying the present dichotomy as a means of preventing the over-criminalisation of non-disclosure, the courts have lowered the importance of consent. Rape, as a violation of sexual autonomy and personal integrity, sends the message that those penetrated are a means to an end: their consent is immaterial to the rapist’s actions. Similarly, in instances of sex by deception, the defendant has violated the complainant’s sexual autonomy and personal integrity by manipulating the facts in a way that restricts the complainant’s freedom to consent. The courts have drawn a distinction between instances of deception worthy of the “rape” designation and those which could serve as a lesson: caveat amator.
 Misrepresentation Act 1967 s.2(1).
 A term borrowed from Jonathan Herring, ‘Mistaken Sex’ (2005) Crim LR 511, 511.
 Sexual Offences Act 2003, s.1.
 ibid, s.74.
 David Archard, Sexual Consent, (1998, Westview), 46.
 Jane E Larson ‘Understand so Little, They Call My Good Nature Deceit: A Feminist Rethinking of Seduction’ (1993) 93 Columbia LR 374, 412.
  1 KB 340.
  2 QB 250.
  EWCA Crim 1103.
  EWCA Crim 706.
  EWCA Crim 2945.
 ibid, at .