The victim complied with the defendant’s instructions, given in text messages where he was posing as a police officer, to the effect that she should have sexual intercourse with him. These offences were committed either side of the coming into force of the 2003 Act; and, in relation to the pre-May 2004 period, they were charged as procurement under section 3 of the 1956 Act and not as rape. The Court of Appeal was not invited to consider the safety of those convictions. As for the post-May 2004 offences, these were charged as rape under the 2003 Act, and the issue was whether the conclusive presumption in section 76(2)(a) applied. It was held that it did not, because there was no deception as to the nature or purpose of the intercourse. The facts were extraordinary. The appellant had pleaded guilty on the advice of counsel who had taken a view of section 76(2)(a) which turned out to be wrong. But that was not the end of the matter because there was clear evidence that the complainant had been pressurised into having sex with the appellant in circumstances which properly called into question whether there was real consent on a number of occasions.
Held: Applying the well-established approach to cases involving pressure or coercion falling short of threats of violence, the convictions were upheld.
Sir Igor Judge P said: ‘Here, the appellant’s purpose was to deceive the complainant into having sexual intercourse with him in order to alleviate or remove the problems which she, having been deceived by him, believed she faced. The result was that she submitted to intercourse because of those extraneous pressures. These submissions broadened from the narrow consideration of section 76(2)(a) of the Act into the wider question of consent as defined in section 74. The appellant’s actions deprived the complainant of her freedom to choose whether or not to have intercourse with him. He pleaded guilty on the basis that at least on some occasions her freedom to choose was constrained by his actions.’
Judges:
Sir Igor Judge P
Citations:
[2007] EWCA Crim 1699, [2008] 1 WLR 2582, [2007] 2 Cr App R 34
Links:
Statutes:
Jurisdiction:
England and Wales
Cited by:
Cited – Monica, Regina (on The Application of) v Director of Public Prosecutions Admn 14-Dec-2018
Deception as to identity did not undermine consent
The claimant had been an environmental campaigner. She had had a sexual relationship with a man who was unknown to her an undercover police officer. She now challenged the decision not to prosecute him for rape.
Held: Her claim failed. Case . .
Lists of cited by and citing cases may be incomplete.
Crime
Updated: 26 November 2022; Ref: scu.254546