Legal experts call for new UK offence of inducing sexual activity by deception

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A new criminal offence of intentionally deceiving a person into engaging in sexual activity should be created to address confusion in the law around consent, legal experts and lawyers have said.

The new offence of inducing sexual activity by deception would cover both making of false representations as well as failing to disclose information. As such, it would potentially apply in future to cases such as those involving “spy cops”, in which undercover police officers adopted fake personas and conducted sexual affairs with female activists.

In another example cited in the report by the Criminal Law Reform Now Network, based at Birmingham University, a man who lied to his sexual partner that he had had a vasectomy had his rape conviction overturned on appeal after judges ruled that she was not deceived as to the “sexual intercourse itself” but only as to the “broad circumstances'” surrounding it. They determined this did not undermine consent.

Members of the CRLN Network say courts struggle to say which deceptions have the effect of nullifying the supposed consent of the victim and which do not, meaning there is an urgent need for reform. Its “straightforward” solution is for a bespoke offence.

John Child, co-director at the CLRN Network and professor of criminal law at the University of Birmingham, said: “It would have to be something where you’re deceiving somebody and the intention is to induce a sexual activity by that deception. But not only that, you have to know as the defendant that what you’re saying is important to that other party.

“So if it’s just part of your sort of chat-up lines, that’s one thing but if you know, for example, the person is wearing, let’s say, religious dress and so it becomes obvious that your religion will will be very important to them, then acts of deception as to that aspect is much more likely of course to then lead to the offence being committed.”

The CRLN Network has fully drafted the new offence, which it proposes should be added to the existing Sexual Offences Act 2003 and carry a maximum jail term of 10 years.

Child said the team of experts decided against drawing up a list of exemptions for certain kinds of deception they struggled to see who had the right to make such a list and on what basis. However, the report, published on Wednesday, states that “we should not assume that all deceptions would lead inexorably to liability”, citing the example of “exaggeration or flattery which might be common in flirtatious interaction”. Additionally, as well as the requirement for the accused to know that the deception would be important to the other party, it also provides them with a “reasonable excuse” exemption.

Child said: “This is a lesson we’re trying to get across to young men in particular, of different ages and I think a sort of headline new offence, which really focuses on this idea there are there are unacceptable limits of deception when trying to induce someone to have sex, is a sensible conversation to be having.”

A Ministry of Justice spokesperson said: “Courts already consider all relevant factors which could affect whether consent was given but we keep sexual offence legislation under constant review to ensure the public is protected.”