Problem Question: Criminal Law, No.18
Problem Question
Vic is a transgender woman who uses dating apps to set up meetings that she hopes will lead to sex. On Monday, she has a date with Fay, a lesbian who says she is looking for a long-term monogamous relationship. Vic represents herself as a gay transgender woman who is also only interested in a monogamous long-term relationship. Fay is encouraged by Vic’s attitude and agrees to various sexual acts, some of them involving penetration. Vic, in fact, has no desire to form a long-term relationship and has sex regularly with both men and women.
On Tuesday, Vic has a date with Ken, to whom she does not disclose that she is transgender; they have sexual intercourse.
On Wednesday, Vic has a date with Mo, who tells Vic that she was born female but has completed gender reassignment treatment. Vic enthusiastically agrees to have sex, saying that this is the first time that she will have had sex with a transgender man. However, after they have sex, Vic discovers that Mo has not completed surgery and has used a prosthetic penis.
On Thursday, Vic has a date with Ann. They go to a club where Ann consumes 6 double vodkas and becomes unwell. Ann asks Vic to take her home, and once back at Ann’s flat, Vic helps Ann to undress, undresses herself, and gets into bed with Ann, stroking and kissing her until Ann falls asleep.
Discuss the potential criminal liability of Vic for any sexual offences in these scenarios.**
Analysis
Monday: Fay
1. Liability for Sexual Offences
• S.76 Sexual Offences Act 2003:
◦ Deception as to Nature or Purpose: S.76 provides conclusive presumptions that any deception as to the nature or purpose of the act negates consent. However, deception about a personal characteristic (e.g., interest in a long-term relationship) does not generally fall under S.76. Instead, it is usually considered under the more nuanced provisions of S.74 and case law.
• S.74 Sexual Offences Act 2003:
◦ Freedom to Choose: The key issue is whether Fay's consent was vitiated by deception. The deception here concerns Vic’s intent to form a long-term relationship, not the nature of the sexual acts themselves. Therefore, this may not amount to a breach of S.74, as the deception does not directly pertain to the nature of the sexual acts but rather to Vic's future intentions.
◦ Case Law: Cases like Jheeta [2007] indicate that deception as to the nature or purpose of the act is not a peripheral matter. However, here, the deception relates more to Vic's personal intentions rather than the act of sex itself.
• Conclusion: Vic’s deception regarding her intentions about the relationship might not constitute a sexual offence under S.76 or S.74. The deception does not appear to directly impact the nature of the sexual acts agreed upon.
Tuesday: Ken
1. Liability for Sexual Offences
• S.74 Sexual Offences Act 2003:
◦ Deception about Gender: McNally [2013] established that deception about gender can be a basis for rape if it impacts the victim's consent. Ken’s case involves Vic not disclosing her transgender status. Since Vic's deception about her gender affects the nature of the sexual act for Ken, it is relevant under S.74.
• Conclusion: Vic could be liable for rape under S.74 because her failure to disclose her transgender status might be considered deception affecting the nature of the act, thereby impacting Ken's consent.
Wednesday: Mo
1. Liability for Sexual Offences
• S.74 Sexual Offences Act 2003:
◦ Deception about Gender: Similar to Tuesday's case, Vic’s belief that Mo was a transgender man was critical. Vic’s discovery that Mo was not a transgender man but a woman using a prosthetic penis means that Vic was deceived about the nature of the sexual act.
◦ McNally [2013]: The deception about the gender of a sexual partner affects the consent to the act. Since Vic thought she was having sex with a man, but it turned out to be with a woman, this falls under deception about the nature of the act.
• Conclusion: Vic may be liable for sexual offences under S.74 due to the deception about Mo's gender, which impacted Vic’s consent.
Thursday: Ann
1. Liability for Sexual Offences
• S.3 Sexual Offences Act 2003:
◦ Touching: Vic’s actions include touching Ann while she was intoxicated. For Vic’s actions to be considered a sexual offence, it must be established whether the touching was sexual and whether consent was vitiated by intoxication.
• Consent and Intoxication:
◦ Bree [2007]: The case held that consent can be valid even if the person is drunk, but the level of intoxication can vitiate consent if it impairs the ability to consent.
◦ S.75 Sexual Offences Act 2003: Provides evidential presumptions about consent when the victim is intoxicated. Vic would need to show that she reasonably believed Ann was consenting.
• Conclusion: Whether Vic's actions constitute sexual assault will depend on whether Ann’s level of intoxication was such that it vitiated her consent. If Ann’s intoxication was severe enough to prevent her from giving valid consent, Vic could be liable for sexual assault under S.3.
Summary
• Monday: Vic’s deception about wanting a long-term relationship may not amount to a sexual offence as it does not directly relate to the nature of the sexual acts performed.
• Tuesday: Vic could be liable for rape due to deception about her transgender status affecting Ken’s consent to the sexual act.
• Wednesday: Vic might be liable for a sexual offence under S.74 due to the deception about Mo’s gender affecting Vic’s consent.
• Thursday: Vic could be liable for sexual assault if Ann’s intoxication was sufficient to vitiate her consent, considering the circumstances of their interaction.