Problem Question: Criminal Law, No.17

Problem Question

Lin, who works as a police officer, is biologically female but lives and identifies as a man. He has not had any gender reassignment treatment and does not intend to do so. As part of his work, Lin is directed to work undercover, posing as a regular drug user to infiltrate a drug gang run by Aleena. Lin is told that Aleena has recently split up with her boyfriend and instructed to ‘do whatever it takes to get her trust.’ Lin successfully gains the trust of Aleena by pretending to be attracted to her; Aleena regularly allows him to give her oral sex and to touch her sexually. Lin avoids revealing that he is biologically female by pretending that he is impotent as a result of an accident. A few weeks later, Aleena is tipped off about Lin’s actual professional identity and biological sex. Horrified, she goes to see her former boyfriend, another gang member, Calum. He calms Aleena and then starts to embrace and kiss her. At first, Aleena tries to push him away, but Calum persists and she then responds to his touch enthusiastically. Calum makes it obvious that he wants to have penetrative sex, but at that moment Aleena says she has decided to leave the country and has no time for sex. While they are still embracing, Calum claims that he too is an undercover police officer and that he will arrest her if she does not have sex with him. She laughs at him, pushes him away, and leaves. Discuss whether Lin and Calum have committed any sexual offences.

Analysis

Lin

1. Liability for Sexual Offences

• Impersonation and Deception:

◦ S.74 Sexual Offences Act 2003: This section defines consent as given “freely and voluntarily” and “with full knowledge of the nature of the act.” Lin’s impersonation of a man and his use of deception to gain Aleena’s trust involve complex issues of consent.

◦ McNally [2013]: This case involved deception about gender, and the court held that the victim was deprived of the right to make an informed choice about their sexual partner. However, Lin’s deception was not about his gender but his identity as a drug user. Whether Aleena was deceived about Lin’s gender, which affects her freedom to choose, is nuanced. Since Lin's deception was about his identity and not directly about his gender, it may not align precisely with McNally's principles.

◦ Herring’s View: Deception about identity can affect consent, but it might not be as straightforward as deception about gender. Lin’s deception about being a regular drug user and his medical condition (impotence) could complicate whether he is liable for depriving Aleena of her freedom to choose based on the gender of her sexual partner.

• Conclusion: Lin's actions may not clearly fall under the scope of sexual offences related to impersonation. He has not deceived Aleena about his gender but rather his identity and medical condition. Whether this affects liability depends on legal interpretations of consent and deception.

Calum

1. Liability for Sexual Assault

◦ S.78 Sexual Offences Act 2003: Defines "sexual" as any touching that is sexual by nature and context. Calum's actions, which include embracing and kissing Aleena, fall under this definition if the touching is considered sexual in nature and context.

▪ Aleena initially resists by pushing Calum away, indicating a lack of consent. Later, she responds enthusiastically, but this response follows a period of non-consent and Calum's coercive actions.

▪ R v H [2005]: This case established that touching can be sexual based on its nature and circumstances. Calum’s touching could be considered sexual if it is deemed so by the circumstances and context.

◦ S.74 Sexual Offences Act 2003: Defines consent as given freely and voluntarily. Calum’s claim that he is an undercover police officer threatening arrest if Aleena does not have sex with him creates a coercive environment that undermines genuine consent.

◦ Ciccarelli [2005]: Touching can include both body and clothing, and if done without consent, it constitutes an offence. Calum’s actions of kissing and embracing Aleena, combined with his coercive claim, could fit within this framework.

• Conclusion: Calum is likely liable for sexual assault. The initial lack of consent, combined with his coercive threat and the nature of his touching, suggests that his actions constitute sexual assault under the Sexual Offences Act 2003.

Summary

• Lin: The liability for sexual offences is complex. Although Lin’s deception involved impersonating a drug user and not directly about his gender, it does not clearly fit into cases like McNally. The issue of consent related to deception about gender is nuanced and may not fully apply here.

• Calum: Likely liable for sexual assault. His actions, including touching and making coercive threats, involved non-consensual sexual conduct, satisfying the criteria for sexual assault under the Sexual Offences Act 2003.