Let’s say a man pretends to be very independent, wealthy and successful in order to seduce a woman into bed – should he be guilty of an offence if he is really unemployed and lives with his mum?
Or how about a sexually promiscuous woman who claims to be a virgin?
While these examples may seem trivial, many larger deceptions raise the valid question: should using deceit to lure someone to have sex with you be considered a crime?
Sexual assault is in NSW is defined as ‘sexual intercourse without consent’ and currently carries a maximum sentence of 14 years of imprisonment. But what constitutes consent?
According to the NSW Crimes Act, consent means that a person ‘freely and voluntarily’ agreed to the sexual intercourse.
Consent can be negated by many factors including duress (ie force), being asleep, being under-age, or being substantially intoxicated by drugs or alcohol.
But to what extent can a lie negate consent?
If the person would not have consented to the sex if he or she had been told the truth, can this be classed as a lack of consent necessary to give rise to a sexual assault?
It appears that when it comes to deliberately employing deception in order to get sex, only the most serious types of fraud can negate consent.
In one 1950s Australian case, a Greek man pretended to a Greek girl that they were legally married.
The girl spoke very little English, and the man was able to achieve his con by taking her to the Marriage Registry and signing a form that she believed was a marriage contract.
In fact, it was only the form required for giving statutory notice for marriage.
After this took place, the couple lived together in an intimate relationship.
However, the unscrupulous man deserted the girl after only a short period of time.
The girl filed a complaint after becoming aware of the scam, and the man was prosecuted for rape.
The case went all the way to the High Court, where it was found that although there was clearly a fraud, it did not technically negate consent. The man was therefore found to be not guilty of rape.
But if this case were heard in NSW today, the opposite finding would likely be reached.
The law in NSW now says that there is no consent if a person has sex with another person:
(a) under a mistaken belief as to the identity of the other person;
(b) under a mistaken belief that the other person is married to the person; or
(c) under a mistaken belief that the sexual intercourse is for health or hygienic purposes.
Consent is also negated where there is any other mistaken belief about the nature of the act induced by fraudulent means.
A person is also guilty of an offence, though not sexual assault, if they have sex with another person knowing that they themselves have a sexually transmitted infection, unless they tell the other person beforehand and the other person voluntarily agrees to accept the risk.
The exceptions to consent do not cover every situation of fraud. For example, it does not cover the situation where a person who promises payment for sex refuses to pay up after the deed is done.
Courts have traditionally been very reluctant to label this behaviour as sexual assault. It is deceitful, certainly, but not considered sufficient to constitute sexual intercourse without consent.
In November, a bill was introduced in New Jersey, USA to criminalise a wide range of “sexual assault by fraud”.
The Bill has sparked heated debate, as opponents argue that a definition that is too broad could trivialise sexual assault.
Should a person who has promised gifts, or even claimed to be unmarried, be seen as falling into the category of sexual assault?
And should such a lie really be deserving of a maximum penalty of 14 years in prison?
Detractors claim it would be ludicrous for all lies to be treated as vitiating consent. After all, how many exaggerate their achievements on a first date? And where is the line drawn? –
Could downplaying your age or dramatically altering your face with make-up be classed as deception?
On the other end of the spectrum, why should people get away Scot-free with lying for sex?
What are your thoughts?