The Performance of Sexual Acts: A Question for the Bedroom, Not the Courtroom

Editor's note: This post contains discussion of cases involving sexual assault and rape.

I. INTRODUCTION[1]

Is there a distinction between the nature of sexual acts and their performance? While this may itself seem a question for the bedroom, this article is concerned with the legal definitions of nature and performance in the context of when one is deceived into performance of a sexual act. Recent cases claim that deception as to the performance of sexual acts is distinct from deception as to its nature. Whether or not this is true is a two-tiered question: (i) can a distinction be made? and, (ii) if so, is this distinction justified? This inquiry will focus upon deception regarding sexual intercourse (rather than sexual acts in general), as this is the emphasis of the case law and the need for clarity in the law of consent is starkest in cases of rape.

It will be concluded that, although a distinction can be observed in some cases, language of performance should be discarded as it is (i) unjustified by authority and (ii) undesirable in practice and principle. Instead, what is currently defined as deception as to performance ought to be incorporated into the definition of deception as to nature.  

II. LEGAL BACKGROUND

A) STATUTE: SEXUAL OFFENCES ACT (SOA) 2003 S.74 AND S.76

SOA 2003, s 74 states that ‘for the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice’.[2]

S 76(2) provides circumstances in which there is a conclusive presumption that consent is vitiated. S 76(2)(a) states that there is a conclusive presumption against consent where the defendant intentionally deceived the complainant as to the nature of the relevant act.[3]

B) LATEST CASE DEVELOPMENT: R V LAWRANCE

The catalyst for this debate is R v Lawrance.[4] The appellant (A) and the complainant (C) had unprotected sexual intercourse, C acting in reliance upon A’s multiple assurances that A had undergone a vasectomy. A later admitted that he had not had a vasectomy and C underwent a termination.

The Court in Lawrence firstly held that there was no deception as to the nature or purpose of the sexual act, so s 76(2)(a) was inapplicable. Then, the Court considered the implications of R (Monica) v DPP, in which C, an environmental activist, had sex with D, an undercover police officer posing as an environmental activist, without being aware of D’s true identity.[5] Monica established that consent can be vitiated by deceptions that are (i) closely connected to the performance of the sexual act, or (ii) so intrinsically fundamental due to said connection that they are treated as cases of impersonation.[6] The Court in Lawrance ultimately concluded that A’s deception was not related to the performance of the sexual act, but to the consequences of sexual intercourse (C’s pregnancy being a consequence), so C's consent was not vitiated.

The law has not defined deceptions ‘closely connected to the performance of the sexual act’. The Courts in Monica and Lawrance never considered performance alone, referring to it only in the context of acts related or closely connected. Therefore, it is not possible to deduce from case law a distinction between performance and closely connected acts and, even if there is a distinction in principle, the Court’s lack of acknowledgement would make it inconsequential in practice. This article will hence regard ‘acts closely connected to the performance of a sexual act’ as one indivisible category, referred to as ‘performance’ for simplicity.

III. IS THERE A DISTINCTION?

An analysis of case law is required to define deception as to nature and performance, and whether there is a conceptual distinction.

A) DECEPTION AS TO NATURE

The most obvious instances of deception as to nature are found in R v Flattery and R v Williams, in both of which C was told by D that D was performing a surgical procedure on C, while really the act was sexual intercourse.[7]  These cases demonstrate that, where one is deceived into thinking that there is no sexual intent behind the act, there is deception as to nature.

Nevertheless, developments in later cases suggest that a broader definition is required. In both R v Assange (where C agreed to have sex with D on the condition that D wore a condom, which D did not wear)[8] and R(F) v DPP (where D deliberately ejaculated inside of C, against C’s express wishes),[9] C was aware of the sexual intention of her acts with D. However, this was not alone enough to discount a claim under s.76(2)(a), which was instead denied on the basis that, without being deceived, C had agreed to be penetrated.[10] This indicates that s.76(2)(a) would have been triggered if C had been deceived into being penetrated, even if C was aware of the sexual intention.[11] Therefore, deception as to the nature of sexual intercourse ought to be defined as follows: where the sexual intention behind the act is concealed, or where C is deceived into being penetrated, notwithstanding whether C knows of the sexual intention or not.

B) DECEPTION AS TO PERFORMANCE

Lawrance departed from the above cases because vitiation of consent under s.74 was denied. The Court distinguished Lawrance from Assange and R(F) as, in Lawrance, C had agreed to both penetration and ejaculation within her, being deceived only as to the ‘nature or quality of the ejaculate’.[12] Conversely, in Assange and R(F), the respective conditions of wearing a condom and withdrawing prior to ejaculation demonstrate that C did not consent to ejaculation within her, leading to the vitiation of consent under s.74. Monica claims that, aside from cases of impersonation (irrelevant on these facts), only deceptions as to the performance of the sexual act can vitiate consent under s.74. Therefore, deception as to ejaculation within C must be what defines deception as to the performance of sexual intercourse.

C) THE DISTINCTION

The foregoing analysis indicates that the distinguishing feature between deception as to performance and deception as to nature is deceived ejaculation within C. A broader definition of performance might be supported by Rogers’ theory, that the performance of sexual acts more generally includes all acts involved and the ‘particular way’ in which they are done.[13] This accounts for the difference between Lawrance and Assange/R(F): in Lawrance there were no restrictions placed on the way in which the physical act of sex should be done, but in Assange and R(F) there were (consent conditional on there being no ejaculation inside C). Despite this, no case law indicates that, besides ejaculation, deception as to any other aspects of the ‘particular way’ in which sexual intercourse is done vitiates consent under s.74. The narrower definition offers increased certainty and specificity of the effect of deception upon consent to sexual intercourse.

IV. IS THIS DISTINCTION JUSTIFIED BY AUTHORITY?

The following sections demonstrate that the introduction of deception as to performance as distinct from nature is unjustified by authority (IV) and undesirable in practice and principle (V).

A) CASE LAW

While Lawrance cites various cases supporting a separate definition for deception as to performance, the reasoning in these cases is misrepresented. Assange was cited as evidence that non-consensual ejaculation can vitiate consent on the basis that ejaculation is closely connected to the act of sexual intercourse.[14] Yet, it was due to the deception of other factors – ‘the presence of a physical barrier, a perceived difference in the degree of intimacy, the risks of disease and the prevention of a pregnancy’ – that led to the vitiation of consent.[15] The close connection of ejaculation to the nature of sexual intercourse was not even mentioned, so cannot have been the cause of vitiation. Similarly, in R(F), the reason given for invalidating consent was that D had ‘deliberately ignored the basis of her [C’s] consent to penetration as a manifestation of his control over her’.[16] This does not support the claim that it is the physical act of non-consensual ejaculation that vitiates consent as the vitiation was actually due to C’s lack of choice, owing to D’s use of control. This undermines the weight placed on non-consensual ejaculation, undercutting the feature of deception as to performance that distinguishes it from nature.

B) SOA 2003

The separate category for deception as to performance is unlikely to have been intended by Parliament. There is no mention of performance as separate to nature anywhere in the Act: s 74 remains a general definition concerning the freedom to choose. If Monica is right that only deceptions as to performance and impersonation can vitiate consent under s 74, these are too specific to not be mentioned in s 74.

One may wonder if Monica is wrong and if other deceptions can vitiate consent under s 74. If this is the case, it is not an issue that s 74 fails to mention performance and impersonation specifically. R v Jheeta might be cited in support, as consent was vitiated under s 74 despite the lack of deception as to performance or impersonation at the time of sexual intercourse. In Jheeta, D pretended to be the police and threatened to commit suicide unless C had sex with D, so C consented.[17] Prima facie, this appears to be a deception as to the circumstances of the sex, rather than performance. However, a closer look at Jheeta suggests that it is not a case of deception at all. Rather, consent seems to be vitiated due to D’s coercion ‘extinguish[ing] her [(C’s)] right to choose’,[18] or simply because D admitted in interview that ‘there were occasions when…the complainant was not truly consenting’.[19] Therefore, vitiation of consent under s 74 in Jheeta is unrelated to the principle in Monica, which only applies to cases of deception.  

If after the preceding discussion one still wishes to stretch the SOA 2003 to insist on the language of performance, two further problems arise to render it undesirable.

V. IS THIS DISTINCTION DESIRABLE?

Firstly, complication is caused by adding performance to the list of the multiple undefined terms in s 74, thus reducing certainty and specificity. Whilst Parliament still fails to issue statutory clarifications, case law should emphasise determining parameters of the terms already in s 74, rather than defining the new term of performance.

Moreover, if performance is a discrete category of deceptions that can vitiate consent under s 74, defining it in terms of ejaculation essentially makes this a conclusive presumption against consent. This is because, wherever there is deception as to ejaculation, this will be deemed a deception as to performance; and wherever there is deception as to performance, there is automatic vitiation of consent under s 74. This begs the question of why deception as to ejaculation is treated under s 74 and not under nature in s 76(2)(a). It seems arbitrary that ejaculation within C is not already considered part of the nature of sexual intercourse, given that artificial means such as condoms and early withdrawal are required to prevent it. The nature of sexual intercourse therefore ought to be defined as the physical act itself, coupled with sexual intention.

Admittedly, this argument could be construed too broadly. Krebs argues that ‘the deposition of sperm inside the female body is an integral part of sexual intercourse in its most natural form’, meaning that in Lawrance there was deception as to an element of the physical act (depositing sperm rather than infertile ejaculate into C’s body).[20] However, this would extend the meaning of nature and physical act too far, blurring the line with the consequences of sex (as pregnancy itself is arguably ‘an integral part of sexual intercourse in its most natural form’). Therefore, the physical act of sexual intercourse should be limited to the perceptible bodily actions of both partners, which includes penetration and ejaculation and excludes fertility.

Although this change in the scope of s 76 is evidently justifiable for the reasons above, it would likely have to come from Parliament, as the Court’s stance is to keep the scope of s 76 as narrow as possible.[21]

VI. CONCLUSION

In conclusion, while in certain cases a distinction between deceptions as to nature and those to performance may be observed, it is unjustified by authority and undesirable in practice and principle. Therefore, the language of performance ought to be removed from the law of sexual offences. Instead, the scope of the nature of sexual intercourse under s 76(2)(a) ought to be extended by Parliament to include ejaculation.