Deception and the Sexual Offences Act 2003: Examining the Criminal Law Reform Now Network's Reform Proposal

S.4A: Defining ‘Active Deception’

Philosophers have written extensively on what constitutes ‘deception’, the descriptively different methods in which it materialises, and the differences these distinct methods present qua wrongs. They broadly agree that ‘deception’ requires intentionally causing or maintaining a false belief in another person, where the deceiver believes that the other person's belief is false (or not true) and that belief is, in fact, false. ¹⁹ Thus, the phrase ‘method of deception’ refers to the specific way in which someone creates or maintains a false belief in another person, rather than the particular subject of the deception. ²⁰ Understanding the nature of deception is crucial for shaping legal reform on deceptive sexual relations for two key reasons. First, defining deception and its various methods enables a more precise determination of the conduct that deceptive sexual offences should criminalise. Second, understanding how certain methods of deception differ qua wrongs contributes to fair labelling discussions, informing how deceptive sexual relations should be subdivided and labelled to reflect accurately the severity of D's wrongdoing upon conviction. The first reason is primarily an actus reus consideration, which is examined here in relation to CLRNN's interpretation of ‘active deception’, while the second reason is explored below in the ‘Fair Labelling and s.4A’ section.

Despite the relevance of the philosophy of deception to these matters, it is rarely engaged with by advocates for reforming the law on deceptive sexual relations. Even the CLRNN does not provide a formal definition of ‘deception’ within s.4A, other than stating D deceives V if they ‘knowingly make a false representation’ or ‘intentionally fail to disclose information’. ²¹ In criminal law terms, the distinction between ‘active’ and ‘passive’ deception corresponds with the distinction between ‘acts’ and ‘omissions’. Indeed, the philosophical literature broadly agrees that one can deceive through either performing an act (e.g., through words or actions) or from omitting to make certain statements. Thus, an ‘active deception’ occurs when a person performs an intentional act (e.g., a speech act) which creates or maintains a false belief in another person, while a ‘passive deception’ involves intentionally failing to disclose information to achieve the same result. ²² Accordingly, a deceiver may choose to use either ‘active’ or ‘passive’ means to deceive another person.

However, there are descriptively different ways in which a person can actively deceive another person, with philosophy distinguishing between lying and misleading. Broadly defined, lying requires the speaker to assert a statement that they believe to be false (or not true) to another person. ²³ In other words, a liar directly asserts a falsehood. Therefore, lying is a method of deception if – through the act of lying – the speaker intends to and ultimately succeeds in creating or maintaining a pre-existing false belief in the listener. On the contrary, misleading deceives the listener through a different dynamic known as conversational implicature: by stating something that the speaker believes to be true to imply indirectly something else that the speaker believes to be false. ²⁴ To contextualise the distinction between lying and misleading, consider the example of Laura stating to James, ‘I will not have sex with you if you have an STD. Do you have an STD?’ James knows that he has recently tested positive for an STD, but he intends to deceive Laura into believing that he does not have an STD to induce her engagement in sexual activity. James considers two possible replies to induce that false belief in Laura:

Scenario 1: ‘No, I do not have an STD.’

In scenario 1, James's reply constitutes a lie because he asserts a statement he believes to be false through claiming he does not have an STD when he knows he does. This lie would be used to instil in Laura the false belief that he satisfies her ‘deal-breaker’, namely, that he is STD-free. ²⁵ Therefore, James would intend to deceive Laura regarding her deal-breaker through the method of lying. In contrast, in scenario 2, James would not lie but instead mislead Laura: he does not assert a statement he believes to be false, assuming he does receive regular health check-ups. Rather, he misleads Laura by indirectly implying something he believes to be false – that he does not have an STD – through the act of truthfully stating that he gets regular health check-ups. Therefore, in scenario 2, James would intend to deceive Laura regarding her deal-breaker through the method of misleading.

Curiously, s.4A, through its definition of ‘active deception’ as making a false representation (i.e., a false statement), de facto criminalises cases where D lies to deceive and thus induce V into sexual activity, but excludes instances where D merely misleads V to achieve the same result. While lying does not require the making of an objectively false statement – since a person can lie even if the subject of their statement is true – when lying is used by the speaker to deceive the listener, it does require making an objectively false statement. ²⁶ When a speaker chooses lying as a method to deceive the listener, they intend to create or maintain a false belief in the listener through that lie. Importantly, since ‘deception’ is an achievement verb – requiring a result to occur, namely the causing or maintaining of an objectively false belief – lying qualifies as a method of ‘active deception’ only if it creates or maintains an objectively false belief in the listener. ²⁷ Thus, a speaker who lies to deceive the listener must make an objectively false statement, as the falsehood of the representation is what enables the listener to form or maintain an objectively false belief.

Accordingly, s.4A criminalises only scenario 1, as it is the only scenario in which James makes an objectively false representation: James asserts he does not have an STD when, in fact, he does. In scenario 2, James's statement that he gets regular health check-ups is objectively true. Since CLRNN intends for s.4A to work alongside the principal sexual offences, cases where D ‘merely’ misleads V into engaging in sexual activity would fall under the principal sexual offences, rather than s.4A. This is because James still intentionally penetrates Laura's anus, mouth, or vagina with his penis, presumably without Laura's consent (see s.74), and given Laura's statement to James prior to sex, James would not have a reasonable belief in consent. This is a peculiar result, and the fair labelling implications are explored in the ‘Fair Labelling and s.4A’ section.

Criminalising Passive Deception: Establishing a Duty to Disclose Under s.4A

S.4A criminalises instances of ‘passive deception’, where D omits to disclose information they know/believe is important to V's decision to engage in sexual activity. Generally, the criminal law is reluctant to impose criminal liability for omissions, criminalising failures to act only when a duty to act arises (based on some relationship or role). By criminalising passive deceptions, it is evident that CLRNN assumes a duty exists for D to disclose any information that D believes is important in inducing V's engagement in sexual activity. ²⁸ Indeed, CLRNN's decision to impose a duty on D to disclose any information that is important to V's decision to engage in sexual relations is a laudable approach, as it prioritises V's right to sexual autonomy over D's right to non-disclosure, suggesting that sexual partners owe each other heightened standards of behaviour. ²⁹

Certainly, some may balk at the suggestion that a duty exists on D to disclose any information that is important to V's decision to engage in sexual relations. Indeed, in certain cases – such as when D is HIV-positive or in cases of so-called ‘gender fraud’ – an argument can be made against imposing such a duty: D's motivation for deceiving V may stem from the private and challenging nature of disclosing such information. ³⁰ Consequently, in cases of HIV transmission, Weait argues against the overly broad criminalisation of HIV transmission, including failures from D to disclose their HIV-positive status in sexual relations. He asserts that the stigma resulting from criminalisation deters individuals from undergoing testing and seeking treatment. ³¹ However, while this presents a valid public health concern in arguing against establishing a broad duty on D to disclose their HIV status, it does not serve as a justification for absolving D when they intentionally (and deceptively) withhold private information that is essential to V's decision-making process for engaging in sexual relations.

In fact, Weait concedes that criminalisation of HIV transmission should occur when D intends to ‘hurt or harm’ V, and the means of achieving that hurt or harm ‘is of a kind recognised and identified as a sufficiently serious violation of [V's] interests’. ³² Although Weait focuses on ‘hurt or harm’ in the experiential sense (i.e., whether D intends to infect V with HIV), it is also possible to assess the ‘hurt or harm’ done to V in a more abstract, non-experiential sense. This evaluation helps to justify when D should be under a duty to disclose their HIV status – specifically, when D's non-disclosure of their HIV status (assuming it constitutes a deception) harms V's sexual autonomy. When specific information is essential to V's decision-making, D's failure to disclose that information sets back and thus harms V's sexual autonomy. This is because D disregards V's negative sexual autonomy deployment – V's decision not to engage in the sexual relations – when D withholds information from V related to D's satisfaction of V's deal-breaker, which renders the sexual relations as non-consensual. ³³ The view here is that, if D wishes to keep information private that is material to V's decision to engage in sexual relations, D should abstain from engaging in such relations with V. ³⁴ Naturally, D's duty to disclose information would stem from D's knowledge/belief that the information is important to V's decision-making, and D intentionally withholds this information with the intention of inducing V into sexual relations. Assuming a deception can be proved, these are the requirements that CLRNN deems necessary to establish a duty to disclose.

Exploring the Role of Consent in s.4A

A lack of consent is crucial in finding criminal liability under the principal sexual offences. Indeed, issues of consent and, relatedly, the safeguarding of sexual autonomy, were pivotal in discussions regarding the reform of sexual offences in Setting the Boundaries. That Report outlines how the principal sexual offences are designed to protect against the exploitation of sexual autonomy, with ‘rape and sexual assault [being] primarily crimes against the sexual autonomy of others’. ³⁵ Thus, a consent-based definition for the principal sexual offences is essential to protecting against ‘[violations of a] person's freedom to withhold sexual contact’. ³⁶ In other words, ‘consent’ is required within the principal sexual offences because these offences protect against negative sexual autonomy violation. Therefore, as consent and sexual autonomy are linked, with the former being an expression of the latter, consent is required within the sexual offences because the absence of consent is suggestive of negative sexual autonomy violation. ³⁷

Therefore, CLRNN's omission of ‘consent’ from s.4A prima facie creates a conflict with the principal sexual offences, implying that, unlike the principal sexual offences, s.4A cannot protect against negative sexual autonomy exploitation. Nonetheless, this assumes that ‘consent’ is conceptually robust enough to protect against such exploitation. Problematically, a broadly defined definition of consent, such as the one used in s.74, leaves open for deliberation questions about the boundaries of consent. ³⁸ For instance, Finch and Munro conducted a study which found that mock jury members ‘are challenged by the breadth of the discretion conferred upon them in relation to consent to intercourse’, and rely on stereotypes concerning ‘appropriate female behaviour’ to determine the boundary of consent in intoxication cases. ³⁹ This shows how, profoundly, jury prejudices might influence answering the question of whether or not D's deception negates V's consent to sexual intercourse. Of course, the effect of jury prejudices on how they interpret the boundaries of consent remains a problem in principal sexual offences as well. Moreover, a broad definition of consent introduces the potential for differently composed juries to arrive at conflicting decisions in factually analogous cases based on those differing prejudices. ⁴⁰ This is exacerbated by decisions like that in Lawrance which interpret ‘consent’ (as defined in s.74) through an artificial and contradictory distinction between deceptions as to ‘physical restrictions’ versus ‘risks and consequences’. So far, then, the approach of leaving the boundaries of consent open for deliberation has proved challenging.

Consequently, the lack of a reference to ‘consent’ in s.4A seems justified as it avoids leaving the question of when deception negates consent open for deliberation. While this omission does conflict with the principal sexual offences, which are defined with reference to a lack of consent (unlike s.4A), this does not suggest that s.4A cannot protect against negative sexual autonomy exploitation. Indeed, Tadros suggests sexual offences can be reformed without relying on ‘consent’, all while protecting against negative sexual autonomy exploitation. This can be achieved through defining certain conditions indicative of negative sexual autonomy violation within the actus reus of the offence. ⁴¹ In essence, s.4A does not rely on a lack of consent to determine criminal liability because, if the components of the actus reus are satisfied, then this is de facto constitutive of V's non-consent. As a result, under s.4A, provided D deceived V, and this deception induced V to engage in sexual activity, V's negative sexual autonomy is undermined, rendering the relations effectively non-consensual.

Evaluating Deceptions

Accordingly, all deceptions which induce V's decision to engage in sexual activity come within the scope of s.4A. This amounts to a subjective approach to protecting V's right to sexual autonomy. Therefore, a deception as to any factor can be caught by s.4A if it relates to a deal-breaker imposed by V on such relations. ⁴² However, adopting a subjective approach to assessing the effect of D's deception on V's decision to engage in sexual activity, as Bergelson argues, raises the issue of over-criminalisation:

'we would have to find someone guilty [of a sexual offence] not only for falsely saying he went to Yale but also in any situation in which the sexual act differs from what the parties have agreed upon. Say, a man consents to sex on the (mistaken) assumption that his partner will not kiss him on the lips. If in fact she kisses him, has she committed a sexual offence?^'43

Hence, some argue that the protection of sexual autonomy should not be absolute. Different values, such as practicality, D's freedom of speech and right to privacy, in addition to the risk of over-criminalisation, are also worthy of consideration at the expense of complete sexual autonomy protection for V. ⁴⁴ Thus, an objective approach is taken to evaluate the materiality of the deception to V's decision to engage in sexual activity. This approach dictates that V's consent is negated, at least legally, only if the deception would also be material to a reasonable person in obtaining engagement in sexual relations. Unlike the subjective model, this approach restricts which deceptions can fall under the scope of criminal liability – achieved through a line-drawing exercise, often based on moral intuition, that distinguishes between deceptions that can and cannot undermine the consent of a reasonable person to sexual relations. ⁴⁵

Nevertheless, if sexual offences are fundamentally wrong because of negative sexual autonomy violation, it would seem contradictory to evaluate objectively which deceptions are and are not material to V's decision to engage in sexual relations. That is because this approach limits which deceptions can legally undermine consent. To protect against negative sexual autonomy exploitation, it should not matter whether D's deception pertains to something that may, objectively, appear serious or trivial. As long as V invokes a condition – meaning V's engagement in sexual relations is dependent on D's satisfaction of that condition – and D's deception makes V falsely believe that D is satisfying that condition, then D's deception should fall under the scope of criminal liability. Therefore, in s.4A, the CLRNN is justified in adopting a subjective approach to assessing the effect of D's deception on V's decision to engage in sexual activity. This means that all deceptions, including those that appear ‘trivial’, are within the scope of s.4A. As explained in the ‘Mens Rea and the Reasonable Excuse Defence’ section below, the CLRNN aims for s.4A's mens rea and its reasonable excuse defence to prevent any over-criminalisation that might result from adopting a subjective approach to assessing the effect of D's deception on V's decision to engage in sexual activity.

Causation

Yet if the criminalisation focus is on the effect of D's deception on any condition, then how significant must that deception be in ‘inducing’ sexual activity? CLRNN explains that to establish causation, it must be proved that D's deception ‘was one of the factors that persuaded [V] to engage in sexual activity’. ⁴⁶ The scope of s.4A could therefore be quite broad if interpreted literally. This raises a concern over legal causation – specifically, regarding the need for D's deception to be ‘substantial’ in inducing V's engagement in sexual activity. This would require D's deception to be more than de minimis (i.e., more than trivial or minor) in its contribution to V's engagement. ⁴⁷ While a deception only needs to be a single factor in inducing sexual activity, it is presumed that, amidst possibly many influencing factors, the deception, once isolated, must itself have played a more than de minimis role. If the deception did not, and V was instead induced by other factors (alone or collectively) beyond a de minimis level, then D would not be liable. Given the complicated dynamics of sexual activity, the CLRNN is likely acknowledging that there can be concurrent causes to V's engagement in sexual activity, but as long as the deception played a more than de minimis role, then that will satisfy this element of legal causation, whatever the contributions (large or small) of the other causes at play.

S.4A: Addressing Concerns of Over-Criminalisation

Adopting a subjective approach to assessing the effect of D's deception on V's decision to engage in sexual activity does not mean that every deception inducing sexual activity will lead to criminal liability. It is possible to manage the risk of over-criminalisation through a robust mens rea and the application of potential defences. ⁴⁸ Indeed, this is exactly the approach CLRNN adopts. CLRNN outlines that fault should hinge on D's subjective willingness to deceive V into sexual relations. Consequently, for an active deception, D must knowingly make a false representation or, for a passive deception, intentionally fail to disclose information. In both cases of deception, D must have the intention thereby to induce V into sexual activity through the deception. It is worth highlighting, in the interest of avoiding over-criminalisation, that beyond knowingly making a false representation or intentionally failing to disclose information, D must also intend by that knowing or intentional conduct to induce (i.e., cause) V into having sexual activity. Therefore, D must intend for the active or passive deception to influence V's decision to engage in the activity. This intent forms an additional wrong-making feature of the conduct that s.4A seeks to criminalise, in addition to the initial act of active or passive deception done knowingly or intentionally, respectively. Moreover, for an active deception, D must know that their deception concerns a matter important to V's decision to engage in sexual activity; whereas in the case of passive deception, D must either know, or at the very least believe, that the withheld information would be important to that decision. CLRNN explains that, as a result, s.4A will not criminalise deceptions which D believes to be trivial (e.g., as to wealth), so long as D does not know or believe the deception will play a ‘significant’ part in influencing V's decision to engage in sexual activity. ⁴⁹

Active Deception and ‘Knowingly’ Making a False Representation: The Potential Role of Wilful Blindness

In cases of active deception, no guidance exists on whether the first mens rea requirement – that D knowingly makes a false representation – is satisfied only when D subjectively knows that their statement is false (actual knowledge) or, alternatively, when D merely suspects that their statement is false (wilful blindness). ⁵⁰ Actual knowledge can be imputed from wilful blindness when D ‘deliberately shut his eyes to the obvious or refrained from inquiry because he suspected the truth but did not want to have his suspicion confirmed’. ⁵¹ Thus, as Wasik and Thompson clarify, wilful blindness involves two elements: (1) prior to D's commission of the actus reus, D suspects a circumstance is true and (2) at the time D commits the actus reus, D deliberately disregards that suspicion to escape criminal liability. ⁵²

Whether wilful blindness can suffice as ‘active knowledge’ under s.4A is important to clarify. Consider a situation where D has not recently performed an STD test and therefore does not actually know that they are infected with an STD (so says they are uninfected to V), but is aware that there is a significant risk that a former sexual partner may have passed on to them an STD. By way of comparison, in offences against the person, Dica and Konzani establish that D recklessly transmits HIV (through unprotected sexual intercourse) under s.20 of the Offences Against the Person Act 1861 (OAPA) when D has actual knowledge of their positive HIV status following a medical diagnosis. This is because D foresees a risk that unprotected sexual intercourse may cause some bodily harm (HIV infection), a risk that is unreasonable for D to take. ⁵³

The requirement of actual knowledge would absolve D of liability under s.4A where, without a medical diagnosis, D does not know whether or not they are uninfected with HIV, and so does not have knowledge that they are making a false representation – even though D may be aware of the risk that they are infected. ⁵⁴ Interestingly, the CPS outlines that D has knowledge of their HIV infection under s.20 OAPA following ‘a preliminary diagnosis from a clinician who has recommended [for D] to have a formal confirmatory test … but [D fails] to act on that recommendation’, suggesting wilful blindness can suffice as knowledge. ⁵⁵ It is significant, then, that CLRNN issues no guidance on whether wilful blindness suffices as ‘knowledge’ where D makes a false representation. Arguably, under s.4A, wilful blindness should be sufficient to establish criminal liability; otherwise, D's ignorance of the truthfulness of their representation would absolve them of liability. However, to prevent over-criminalisation, wilful blindness should lead to criminalisation only if (a) D suspects the representation is false (e.g., D suspects having HIV following a preliminary diagnosis) and (b) a reasonable person with D's knowledge of the facts would verify whether the representation is false (e.g., by getting a confirmatory HIV test).

While wilful blindness is certainly relevant in the context of STD transmission, other scenarios also exist where it could play a significant role. Consider that V asked D to wear a condom, and D adhered to this deal-breaker. However, shortly after intercourse began, D noticed a distinct change in physical sensation, leading them to suspect that the condom had torn. Despite this suspicion, D did not check to confirm whether the condom had torn. During intercourse, V asked D whether they were still wearing a condom, and D responded, ‘Yes’, despite not knowing for certain, as D had not checked. It later turned out that the condom had torn, and V became pregnant. As with the HIV example, the requirement of actual knowledge would absolve D of liability under s.4A since, as they did not check whether they were still wearing a condom, D did not have knowledge that they were making a false representation. In contrast, if wilful blindness sufficed as ‘knowledge’ (according to the test outlined above), there would be a basis for establishing criminal liability under s.4A. Specifically: (a) D suspects the representation (that they are wearing a condom) is false, based on a change in sensation during intercourse, leading them to suspect that the condom has torn and (b) a reasonable person with D's knowledge would verify the condom's integrity, such as by checking for a tear.

Active or Passive Deception: Analysing D's Evaluation of the ‘Importance’ of the Deception

Further elaboration is required as to an additional mens rea requirement – D knows (active deception) or knows/believes (passive deception) that the representation or failure to disclose (respectively) is important to V's decision to engage in sexual relations. Again, can wilful blindness suffice as knowledge? It is important to contrast the stricter mens rea requirement of ‘knowledge’ from the lesser requirement of ‘belief’, and to understand how this distinction applies to s.4A. D has knowledge of an offence element if (a) they subjectively believe that it is the case and (b) their belief is objectively correct. ⁵⁶ In contrast, ‘belief’ only requires the satisfaction of the subjective limb; it does not require D's belief to be objectively true. ⁵⁷ Therefore, although the CLRNN does not comment on this distinction, the repercussion of it is that for active deception, D needs to believe that it is the case that their representation is important to V's decision and it is, in fact, important to that decision; whereas for passive deception, it is sufficient if D merely believes that their failure to disclose is important, regardless of whether it is actually important to V's decision.

Also, is it clear when D perceives the deception as a factor that is sufficiently ‘important’ to V's decision to engage in sexual activity? CLRNN clarifies that deceptions will not be caught under s.4A where D does not know or believe that the deception ‘will play a significant part in [V's] decision to engage in sexual activity’. ⁵⁸ In English criminal law, the term ‘significant’ is often used interchangeably with the term ‘substantial’, as seen in legal causation and the partial defence to murder of diminished responsibility. Unfortunately, though, ‘substantial’ has contrasting definitions and it is unclear which definition CLRNN adopts. Legal causation sets a low threshold for ‘significant’ or ‘substantial’, described as simply more than ‘de minimis’, i.e., ‘more than minimal’; ⁵⁹ this stands in contrast to diminished responsibility's more rigorous criteria of ‘weighty’ or ‘appreciable’ under its ‘substantial impairment’ test. ⁶⁰ The former definition risks over-criminalisation: s.4A would be satisfied if D knows (active deception) or knows/believes (passive deception) that their deception was merely a more than negligible reason, against a backdrop of other, bigger reasons, in V's decision to engage in sexual activity.

Thus, to prevent the criminalisation of deceptions that D genuinely did not feel were that important to V in inducing sexual relations, it would be necessary to apply the stricter interpretation of ‘significant’. This requires D to know or believe that the subject of the deception was of high importance to V, to a ‘weighty’ or ‘appreciable’ degree, rather than merely more than minimal. ⁶¹

Reasonable Excuse Defence

Sensibly, the CLRNN suggests introducing a reasonable excuse defence to prevent the potential for ‘inappropriate liability’ resulting from the criminalisation of all deceptions under s.4A. ⁶² This defence outlines a non-exhaustive list of factors – such as those relating to the age and vulnerability of V; the age and immaturity of D; consequences to V (including unwanted pregnancy); and D's right to privacy – which can be considered in assessing D's blameworthiness. ⁶³ CLRNN explicitly states that the defence applies in situations where D is the victim of abuse and resorts to deception as a form of self-protection, for instance, by concealing the use of birth control. Similarly, it covers cases where D is HIV-positive but has been informed that their viral load poses no threat to their sexual partner. ⁶⁴

Notably, the CLRNN highlights deceptions as to gender identity as instances where the operation of the defence is a matter for debate, citing specifically McNally as a key example. The CLRNN clarifies that merely fearing non-consent from V is insufficient to provide D with a reasonable excuse. Instead, it emphasises the need to consider ‘a greater understanding of the relationship with [V], and [D's] potential concerns about wider knowledge of their previous gender’. ⁶⁵ Naturally, these concerns from D regard their right to privacy and how broadly this right should be interpreted. Sharpe, when commenting on that right, has suggested that it includes D's discretion ‘not to share highly personal information concerning their gender histories and/or pre- or post-surgical bodies’. ⁶⁶ Clearly, then, for those deceptions falling under s.4A, V's sexual autonomy is not an absolute right but one that must be balanced against a multitude of factors. ⁶⁷ However, it remains unclear when these factors do operate to establish a defence. The application of this defence will be fact-specific and appears to allow D to raise issues such as their perception of the nature of their relationship with V, alongside their right to privacy, particularly concerning any legitimate concerns about the consequences of disclosing their transgender status. While these qualifications may seem ambiguous, the defence provides a legal framework for arguing against criminal liability that is absent under the principal sexual offences. Consequently, this defence is a welcome addition as it helps to address the concerns of over-criminalisation that would arise from adopting a subjective approach to assessing the impact of D's deception on V's decision to engage in sexual activity.

Nonetheless, the reasonable excuse defence, as it would apply to ‘gender fraud’ cases under s.4A, creates a potential conflict with the CPS's proposed revision to guidance on when to prosecute such cases under the principal sexual offences. The CPS's revision would direct prosecutors to: (1) assess whether D committed a deception pertaining to a material fact (e.g., their transgender status); (2) determine whether this deception negated V's consent; and (3) evaluate whether D had a reasonable belief in the complainant's consent. ⁶⁸ Concerning the third stage, in the context of the principal sexual offences, Sharpe raises a concern that the CPS's guidance assumes D lacks a reasonable belief in V's consent when there is a deliberate deception, something which might not account for the nuanced reasons a trans person might have for not disclosing their transgender status. ⁶⁹ The conflict, therefore, is that there is significant overlap between the principal sexual offences and s.4A in that D's deception can be prosecuted under either offence. However, as Sharpe highlights, the CPS's revised guidance for prosecuting under principal sexual offences ‘fails to grasp a more complex picture concerning trans motivations’ for the deception. ⁷⁰ This is unlike s.4A, where broader contextual factors like privacy and relationship dynamics are considered under the reasonable excuse defence. In respect of gender fraud, then, this might lead to charges being brought (and convictions materialising) under the principal sexual offences, despite the same deception being covered by s.4A, albeit possibly falling within the reasonable excuse defence.

The Importance of Fair Labelling

According to Ashworth, fair labelling alludes to the notion that:

widely felt distinctions between kinds of offences and degrees of wrongdoing are respected and signalled by the law, and that offences should be subdivided and labelled so as to represent fairly the nature and magnitude of the law breaking. ⁷²

This highlights the importance of differentiating between different wrongs, including within sexual offences. As Green suggests, central to this approach is the recognition that our sexual rights can be interfered with through different methods, and each method may vary substantially in terms of the nature of sexual misconduct; the type and degree of harm inflicted; and/or the level of fault; consequently, sexual offences should be subdivided to differentiate precisely between different kinds of wrongdoing. ⁷³

Crucially, sexual offences must be appropriately labelled to communicate unambiguously to specific audiences the essence of D's wrongdoing upon conviction. These audiences include those within the criminal justice system (like judges and prosecutors) and outside it (employers, the general public etc.). The offence label attached to D's criminal record upon conviction embodies censure – i.e., the criminal justice system's formal condemnation. Most notably, that offence name guides those within the criminal justice system in determining the extent of D's punishment – whether it be a custodial sentence, community service, or inclusion on the sex offender's register. ⁷⁴ Outside the criminal justice system, the censure conveyed by D's conviction communicates to employers and the general public the nature of D's wrongdoing, facilitating negative judgment of the wrongdoer by society (public stigma). There are severe consequences that can arise from public stigma, as explained by Gibson, which include employment and housing denials, and the potential for D and their family and friends to become targets of violence, such as beatings, arson, and vandalism. ⁷⁵

There is, therefore, good reason to represent accurately the severity of D's wrongdoing on conviction. But this is especially important for those outside the criminal justice system, since, as Gibson argues, it is the locus of fair labelling for D's conviction to communicate ‘liability and censure to citizens, who may then stigmatise and react accordingly’. ⁷⁶ This would require two things. First, to differentiate between conduct that represents different wrongs for the purpose of criminalisation. Second, naming these offences appropriately so they accurately communicate D's wrongdoing. Albeit offence naming perhaps plays a lesser role in communicating D's wrongdoing to those within the criminal justice system. Instead, communicating the difference in wrongdoing to that audience could be achieved without labels but by ‘section numbers in a code or statute’: the criminal-justice actor could use the elements which constitute the offence's definition to determine its wrongdoing. ⁷⁷

Differentiating Between the Types of Sexual Activity Induced by Deception

Given that CLRNN justifies criminalising deceptive sexual relations separately from the principal sexual offences (to acknowledge that the former constitutes distinct wrongdoing), it is perplexing as to why CLRNN chose to criminalise this deceptive conduct under one broad offence. All types of sexual activity induced by deception are criminalised under s.4A, i.e., those deceptions which induce V into penetrative and non-penetrative acts. While s.4A distinguishes between penetrative and non-penetrative acts induced by deception with sentence severity – mirroring the principal sexual offences with a maximum life sentence for penetrative acts; and a maximum ten-year sentence for non-penetrative acts – it fails to differentiate clearly the nature and seriousness of D's wrongdoing upon conviction. This poses a problem for fair labelling: s.4A risks misrepresenting the severity of D's wrongdoing upon conviction because it does not distinguish between the types of sexual activity D induced V into by the deception.

This risk becomes apparent when examining the approach of the principal sexual offences to differentiating types of non-consensual sexual activity. ⁷⁸ The clear differentiation of those offences on this basis establishes an apparent hierarchical framework for perceiving their varying degrees of severity. Indeed, Setting the Boundaries alludes to this hierarchy in the context of penile penetration: ‘Of all sexual offences, rape is the most serious, [and] the most feared’. ⁷⁹ This suggests that the principal sexual offences may be thought of as creating a framework which adheres to the ingrained social and cultural interpretation associated with the labels that define the various acts which they prohibit. ⁸⁰ For instance, Chalmers and Leverick highlight that the ‘definition of rape in English law … does not include penetration by objects … on the basis that this was not felt to reflect the public understanding of [rape]’. ⁸¹ Thus, the label ‘rape’ has an important role in stigmatising a certain sort of sexual wrong – as defined, the unique degradation that penetration with a penis causes. ⁸² The same is true for the other offence labels under the principal sexual offences – e.g., the label ‘sexual assault’ stigmatises the wrong of sexual touching (etc). Accordingly, the offence labels under the principal sexual offences clearly communicate the severity of D's wrongdoing, based directly on the type of sexual activity into which D induced V.

Given the importance of this communicative framework in the principal sexual offences, it is perhaps unfortunate that CLRNN decided against implementing a similar framework within s.4A. Thus, s.4A conflicts with the principal sexual offences because, unlike those offences, s.4A is morally unvarying and does not differentiate between the various types of sexual activity procured by deception. However, there is a clear difference in D's wrongdoing depending on the type of sexual activity that D induced V into through the deception. Arguably, non-consensual penetrative deceptive acts (penile or otherwise) constitute a greater wrong than non-consensual non-penetrative deceptive acts, as, prima facie, the former represent a greater infringement of sexual autonomy in point of bodily integrity and the degree of interference with that integrity. ⁸³ Moreover, there are distinctions in wrongdoing within these categories that s.4A does not capture: within penetrative acts – between the penile penetration of V's orifices (‘rape’) and the non-penile penetration of V's orifices (‘assault by penetration’); and within non-penetrative acts – between a sexual touching ('sexual assault’) and ‘causing another to engage in sexual activity without consent’. As argued above, these offence labels are used under the principal sexual offences to communicate clearly the severity of D's wrongdoing dependent on the type of sexual activity that V engages in non-consensually. Consequently, s.4A presents a fair labelling dilemma: by not distinguishing between the different types of non-consensual sexual activity induced by D's deception, s.4A censures D homogeneously, thereby running the risk of the public either over- or under-stigmatising D.

It is therefore important for s.4A to communicate clearly distinctions in wrongdoing based on the type of sexual activity induced by deception. ⁸⁴ This clarity of censure would ensure that the public is well-informed about the severity of D's wrongdoing, allowing for a just allocation of stigma. Drawing upon this conclusion, if deceptive sexual relations are to be criminalised separately from principal sexual offences, the legal framework for criminalising deceptive sexual relations should differentiate between the type of sexual activity induced into by the deception. This is a matter of offence differentiation. Applying the framework used in the principal sexual offences to deceptive sexual relations facilitates this differentiation and serves to communicate accurately the severity of D's wrongdoing. Thus, there should be, at least, four different offences criminalising deceptive sexual relations: sex by deception; penetrative assault by deception; sexual assault by deception; and causing a person to engage in sexual activity by deception.

The Relationship Between s.4A and the Principal Sexual Offences

The relationship between s.4A and the principal sexual offences establishes a two-tier system for criminalising deceptive sexual relations: D's deception is criminalised either as a principal sexual offence, or as a s.4A offence. This is because, under CLRNN's framework, whether D's deception is criminalised as a principal sexual offence or a s.4A offence depends on two factors: (1) the subject of D's deception and (2) the method of D's deception. This presents a further fair labelling puzzle, as it again risks misrepresenting the magnitude of D's wrongdoing upon conviction.

Differentiating D's wrongdoing based on the subject of deception

Regarding the relationship between the s.4A and the principal sexual offences, CLRNN states that the former is intended to complement the latter. ⁸⁵ As explained in the ‘Criminalising Deceptive Sexual Relations: the Principal Sexual Offences and S.4A’ section, the principal sexual offences criminalise deceptions that satisfy the conclusive presumptions against consent under s.76 (regarding nature, purpose or impersonating someone known personally to V), as well as those deceptions that do not meet that criteria but instead fall under the general definition of consent under s.74 (pursuant to the distinction applied in Lawrance). In total, then, CLRNN's approach criminalises deceptive sexual relations under five distinct offences: four within the principal sexual offences (s.1-4 SOA), and an additional offence under s.4A SOA. Yet, CLRNN comments that the ‘more appropriate terms of [s.4A]’ encourage prosecutors to prosecute under s.4A those deceptions which would otherwise fall under the principal sexual offences via the general definition of consent under s.74. ⁸⁶ Thus, there are two ways in which CLRNN's framework for criminalising deceptive sexual relations may function.

The first is the ‘theoretical’ way. CLRNN refers directly to s.4A as the appropriate avenue for prosecuting those cases which would otherwise fall under s.74, but not those under s.76. ⁸⁷ Assuming prosecutors follow this suggestion, the theoretical relationship between the principal sexual offences and s.4A would be as follows: deceptions falling under s.76 would continue to be prosecuted under the principal sexual offences, while deceptions falling under s.74 (i.e., those not covered by s.76) will be prosecuted under s.4A. This outcome is only ‘theoretical’ because, in practice, CPS prosecutors have significant discretion in selecting the appropriate charge for serious offences. When deciding whether to charge a suspected offender, CPS prosecutors are expected to follow the two-stage ‘Code Test’ outlined in the Code for Crown Prosecutors: (1) whether there is a ‘reasonable prospect of conviction’ (the Evidential Stage) and (2) whether the prosecution is in the public interest (the Public Interest Stage). ⁸⁸ Consequently, the second and ‘practical’ way in which CLRNN's framework may function is that, given a prosecutor's discretion in charging decisions and their ability to prosecute D's deceptive conduct either under s.4A or as a principal sexual offence, a prosecutor may still choose to prosecute cases falling under s.74 as a principal sexual offence when previous cases have suggested that the deception does negate consent under s.74 (physical restrictions). This outcome seems logical, especially given that the Lawrance distinction – until overturned – would remain legally relevant. Meanwhile, deceptions that case-law has suggested do not negate consent under s.74 (risks and consequences) would fall outside the scope of the principal sexual offences and instead fall within s.4A.

While the CPS can issue legal guidance on which outcome – ‘theoretical’ or ‘practical’ – to pursue regarding the relationship between s.4A and the principal sexual offences, either outcome would de facto differentiate between two types of deception – those falling under the principal sexual offences and those that instead fall under s.4A. In the ‘theoretical’ outcome, if the subject of D's deception falls under s.76, D's wrongdoing will be prosecuted under a principal sexual offence. All other deceptions, where the subject matter falls under s.74, are to be prosecuted under s.4A. In contrast, in the ‘practical’ outcome, if the subject of D's deception falls under s.76, then D's wrongdoing will be prosecuted under a principal sexual offence. If D's deception does not pertain to these objects, the decision to prosecute D under a principal sexual offence or under s.4A might well depend on whether the deception involves a ‘physical restriction’, or a ‘risk and consequence’.

The distinction between the two types of deception – those falling under a principal sexual offence versus those under a s.4A offence – as based on the subject of D's deception presents a fair labelling puzzle. It implies that the subject of D's deception is central to determining the severity of D's wrongdoing, so as to justify the use of value-laden terms to describe those deceptions falling under the principal sexual offences (e.g., ‘rape’), while those deceptions falling under s.4A are assigned with the morally unvarying label of ‘Inducing a person to engage in sexual activity by deception’. Therefore, if the subject of D's deception falls under a principal sexual offence, D's deception will be censured (and stigmatised by the public) more profoundly than those that constitute a s.4A offence – despite both types of deception representing prima facie similar wrongdoing. ⁸⁹ Exceptionally, only those deceptions where the subject matter concerns the nature of the sexual act represent a different wrong, as V does not even know they are engaging in a sexual act. ⁹⁰ If this is correct, then deceptions as to the nature of the sexual act should remain within the principal sexual offences and receive the similar stigmatic labels attached to them. In contrast, all other deceptions, where the subject matter does not pertain to the nature of the act, should not be criminalised under the principal sexual offences and should therefore not receive those stigmatic labels. Therefore, both outcomes – the ‘theoretical’ and ‘practical’ – risk misrepresenting the severity of D's deceptive wrongdoing upon conviction. The theoretical outcome does so because deceptions regarding the purpose of the act and impersonation of someone known personally to V would receive the stigmatic labels of the principal sexual offences, despite representing a different wrong than deceptions regarding the nature of the act. The misrepresentation of D's wrongdoing is even more pronounced in the practical outcome, where, additionally, deceptions involving ‘physical restrictions’ would also carry the stigmatic labels of the principal sexual offences, while deceptions regarding ‘risks and consequences’, which are equally wrongful, would receive the morally homogeneous label of s.4A.

(ii) Differentiating D's wrongdoing based on the method of deception

As identified in the ‘S.4A: Defining “Active Deception”’ section, s.4A excludes cases of active deception where D deceives V into engaging in sexual activity through misleading, yet includes cases where D deceives V into engaging in sexual activity through lying. Therefore, another deciding factor regarding whether D's deception constitutes a principal sexual offence or a s.4A offence concerns the method of D's deception. If D deceives V through the method of misleading – that is, by stating something they believe to be true to imply indirectly something else D believes to be false – D's conduct will be criminalised under the principal sexual offences. ⁹¹ However, if D deceives V through lying – specifically, by directly asserting a statement that they believe to be false – whether D's deception falls under a principal sexual offence or s.4A depends on the application of either the ‘theoretical’ or ‘practical’ relationship between s.4A and the principal sexual offences. In the straightforward ‘theoretical’ outcome, all instances where D deceives V through lying will be criminalised under s.4A, unless the subject of the deception falls under s.76, in which case D's conduct will be criminalised under the principal sexual offences. The ‘practical’ outcome, however, could – depending on the CPS's discretion on charging decisions – criminalise under s.4A only those deceptions caused by lying regarding ‘risks and consequences’; all other deceptions caused by lying would fall under the principal sexual offences. The key point, though, is this: CLRNN's framework suggests that, as methods of deceiving V into sexual activity, misleading is morally more wrongful than lying. This is because all instances of misleading would still be criminalised under the principal sexual offences and carry the stigmatic labels of those offences. In contrast, not all instances of lying would be criminalised under the principal sexual offences; some would be criminalised under s.4A and receive the morally homogeneous label of that offence.

There is extensive philosophical literature on the difference in wrongfulness between lying and misleading, as methods of deception. However, few commentators have applied this literature to examine how these methods interact differently with sexual autonomy and consent. An exception is Tolley, who is sceptical about the usefulness of distinguishing between lying and misleading, questioning whether such a distinction is significant or practical, given that most people are not attuned to these differences. ⁹² Despite these counterarguments, the traditional and widely accepted philosophical view holds that a moral asymmetry exists between lying and misleading, with lying being the most morally reprehensible method of deception due to its unique nature. ⁹³ Lying is distinguished both morally and descriptively because only a liar directly asserts a falsehood. ⁹⁴ In other words, a liar presents a statement as if it aligns with reality despite the liar's belief that it is false (or not true). ⁹⁵ Therefore, a liar undermines the normative component of assertion, which holds that they are to be made with the intention of being truthful. ⁹⁶ Accordingly, Chisholm and Feehan argue that since a liar directly asserts a falsehood, they give their audience the ‘right to expect’ that the speaker believes in the contents of the assertion. ⁹⁷ As a result, the listener has no reason to suspect that the speaker is not being truthful, precisely because it is the nature of assertion – and hence lying – to invite the listener's trust in the assertion's content. Therefore, only a liar asserts a statement, thereby inviting the listener's trust in it, while simultaneously breaching that trust because the speaker believes that the assertion is false (or not true).

Moreover, this notion that only a liar invites and breaches the listener's trust supports Adler's argument that in instances of misleading (but not lying), the listener bears some responsibility for the deception, whereas the liar is wholly responsible for the false belief of the listener. ⁹⁸ The core idea underpinning this claim is that in cases of misleading the deception is facilitated by the listener's inference: unlike lying, in cases of misleading, the speaker does not directly assert a falsehood but instead implies a falsehood through conversational implicature. That is, the speaker states something they believe to be true, which indirectly implies something else they believe to be false. Thus, in cases of misleading, the listener plays a more active role in being deceived as compared to lying, and therefore bears greater responsibility for the deception. ⁹⁹ In contrast, since a liar directly asserts a statement, thereby inviting the listener's trust in it, the listener (rightly) believes that what the liar says is true, making the liar solely responsible for the listener's false belief. This point links to Green's argument that the principle of Caveat Auditor – the principle that ‘[a] listener is responsible, or partly responsible, for ascertaining that a statement is true before believing it’ – applies to misleading but not lying. ¹⁰⁰ Therefore, Green argues that a liar is wholly responsible for the deception because:

‘When A lies to B, A tells B that she herself believes what she is saying. As a result, B is justified in putting their faith in A; B need not be on her guard or question A's veracity. If A is mistaken about her assertion, then she is wholly responsible for B's false belief. And if A's untrue statement has been intentional, it is A who is wholly to blame.’ ¹⁰¹

In contrast, misleading involves a different dynamic:

‘When A misleads B … she has not told B that she believes what she is saying is true (since what she is saying is neither true nor false). There is thus no warranty of truth that B could rely on.’ ¹⁰²

Consequently, this implies that the principle of Caveat Auditor does not apply to lying because the assertion has a ‘determinable truth value’ in the context of the conversation. Consider again the example from ‘S.4A: Defining “Active Deception”’ section where James has two possible responses to Laura's question, ‘Do you have an STD?’, knowing he has recently tested positive but intends to deceive her into believing he is STD-free to induce her into sexual activity:

Scenario 1: ‘No, I do not have an STD’.

James's reply in scenario 1 is a lie and thus is either true or false; either James does or does not have an STD. Therefore, James invites Laura's trust – a ‘warranty of truth’ – in that he does not have an STD. In contrast, James's response in scenario 2 is a case of misleading and is therefore neither true nor false – that is, it does not have a ‘determinable truth value’. This is because James's response to Laura's question does not directly answer the question about whether or not he has an STD.

Accordingly, a prima facie distinction exists between lying and misleading as methods of deceiving V in sexual activity, with the former constituting a greater wrong than the latter. In cases of deceptive sexual relations, V deploys both positive and negative sexual autonomy. ¹⁰³ V deploys the latter because they do not want to engage in sexual relations unless D satisfies their deal-breaker; but this means that V is willing to have sex under (a) circumstance(s), which is an expression of positive sexual autonomy deployment. ¹⁰⁴ As defined under s.74 SOA, ‘consent’ refers to one's freedom and capacity to choose to engage in sexual relations. In deceptive sexual relations, V's negative and positive sexual autonomy is negated: V engages in sexual activity against their deal-breaker and, thus, does not achieve their deal-breaker. ¹⁰⁵ Of course, it is best to frame the issue of V's non-consent by focusing on the negation of V's negative sexual autonomy, as the harm done to V's positive sexual autonomy, as Gibson describes, is negligible: ‘it is simply disappointment’. ¹⁰⁶ Therefore, when D negates V's negative sexual autonomy by deceiving V into believing that D is abiding by their deal-breaker (when D is not), the assumption is that the sexual relations are non-consensual: D's deception undermines V's freedom to choose to engage in sexual relations absent D's satisfaction of V's deal-breaker. ¹⁰⁷ However, while both methods of deception negate V's consent by harming their negative sexual autonomy, since they both result in V engaging in sexual relations contrary to V's deal-breaker, it can be argued that lying is morally more wrongful than misleading. This is because only a liar invites and subsequently breaches V's trust that D is abiding by V's deal-breaker, making the liar wholly responsible for the deception that induced V to engage in sexual activity. Consequently, V does not possess the freedom to choose to engage in sexual relations that contradict their deal-breaker because V has no agency to enquire further regarding whether D is abiding by it. In contrast, misleading does not involve a direct assertion from D that they are abiding by V's deal-breaker; thus, D does not invite V to trust that they are adhering to their deal-breaker and hence does not breach V's trust on this matter. Therefore, the responsibility for the resulting deception in V – that D is abiding by V's deal-breaker when D is not – is shared between D and V. In other words, V bears some responsibility for the deception because they made an incorrect inference that D is abiding by their deal-breaker, even though D did not assert that they are abiding by it. Therefore, while misleading can negate V's consent by impairing V's negative sexual autonomy by leading V into undesired sexual relations, D's conduct is less wrongful than lying. Indeed, V still retains some freedom to choose to engage in sexual relations because they have the agency to question or further investigate D's statement. This aspect – V's agency to question or investigate further D's statement – is what distinguishes lying as a method of deception from misleading. If this analysis is accurate, then, as methods of deception that induce V to engage in sexual activity, lying constitutes a greater wrong than misleading.

Consequently, within CLRNN's proposed legal framework, it is challenging to rationalise the distinction between lying and misleading as methods of deception. To justify criminalising all instances of misleading under the stigmatic labels of the principal sexual offences, while some instances of lying are criminalised under s.4A and receive the morally homogeneous label of that offence, implies that misleading is considered morally more wrongful than lying as a method of deception. However, the inverse is true: of all methods of deceptions, it is lying – rather than misleading – that warrants the stigmatic labels of principal sexual offences, as it is morally the most reprehensible method. Therefore, CLRNN's framework once again risks misrepresenting the severity of D's deceptive wrongdoing upon conviction.