I May Destroy You, Part 1: A study of sexual assault - Stealthing
This blog series examines the sexual offences encountered by the main characters in the raw and unflinching BBC series, I May Destroy You. Part 1 considered the experience of the show’s main character, Arabella; this second article looks at the circumstances in which her friend, Kwame, finds himself. The show’s creator, Michaela Coel, explores the dynamic between consent and deceit; a topic that the Court of Appeal very recently considered in R v Lawrance  EWCA Crim 971.
Kwame is an openly gay man. He meets a man on Grindr, the dating app. Kwame and his Grindr date meet up and have consensual sexual intercourse. As Kwame is about to leave the flat, his date suggests further sexual activity. Kwame explicitly declines his advances. The date refuses to let Kwame leave, pins him down and sexually assaults him.
Perhaps in response to the trauma Kwame has experienced at the hands of masculine aggression, he decides to experiment sexually with a woman. He meets Nilufer, and the two have sexual intercourse. Afterwards, Nilufer makes a homophobic comment which prompts Kwame to disclose to her the fact that he is gay. Feeling deceived, Nilufer throws Kwame out of her flat. Kwame’s female friends, Terry and Arabella, are unimpressed with his actions and deem them deceitful, destructive and narcissistic.
In this scenario, Kwame’s Grindr date committed the offence of sexual assault.
A person (A) commits a sexual assault if:
So far as sexual activity is concerned, consent is defined in section 74 of the Sexual Offences Act 2003 as agreeing by choice and they having the freedom and capacity to make that choice.
Kwame had two separate sexual encounters with the same person, one after the other. It is not in dispute that the first encounter, sexual intercourse, was consensual. It is clear on the facts that Kwame did not consent to the second encounter and that his date was made aware that he did not consent. Just because Kwame consented earlier does not mean that he consented to both acts. It cannot be assumed that consent in relation to one sexual encounter automatically transfers to any subsequent sexual activity. Consent can be withdrawn at any time during sexual activity and each time activity occurs. It is a dynamic act.
Issues of consent become more complex when you consider that, even if person (A) asserts that they were involved in a non-consensual sexual act with person (B), it has to be proved that (B) did not reasonably believe (A) was consenting. Given the intimate nature of sexual activity, there are usually no other witnesses: even having taken all the circumstances into account, the issue is often decided on to one person’s word against another’s as to exactly what happened and whether criminal liability arises.
Deceptive actions in the context of sexual relations have the potential to cause some level of harm to the person who has been deceived. However it does not necessarily follow that all deceptive actions or omissions are illegal within our current legal framework.
In the past, the offence of ‘procuring sexual intercourse with a woman by false pretences or false representations’ existed under section 3 of the Sexual Offences Act 1956; if that law was still applicable, it may have criminalised Kwame’s deceptive sexual behaviour under UK law. However, this offence was repealed (and not specifically replaced) by the Sexual Offences Act 2003. The issue of deception, false representation or deliberate omission in the context of sexual encounters has in recent years become a hot topic of discussion amongst legal academics, in popular culture (such as this TV series) and also in the courts.
There are limited circumstances where certain types of deception can be considered so integral to consent so as to vitiate (remove or undo) consent, such as ‘stealthing’ (the removal of a condom without a sexual partner’s knowledge), considered in Part 1 of this blog series.
The Court of Appeal handed down a judgement in a case, R v Lawrance  EWCA Crim 971, as recently as 23 July 2020 on the topic of deception and lies, which provides further guidance on the circumstances where deception cannot be considered to legally vitiate consent. That case turned on the fact that the appellant falsely represented to his sexual partner that he had had a vasectomy. On that understanding, she agreed to unprotected sexual intercourse when otherwise she would have insisted that he wear a condom. He was convicted of rape by a jury on what appears to be the basis that she was denied the opportunity to make a fully informed decision about the risk of pregnancy which was an explicit factor in her consent. The Court found that the lie about fertility was not capable of negating consent and quashed his convictions relating to the fertility lie. The Court of Appeal noted that in circumstances of express deception or failure to disclose, “[the] issue is whether the appellant’s lie was sufficiently closely connected to the performance of the sexual act, rather than the broad circumstances surrounding it.”
In this case it was the consequences of the sexual act that was agreed to that had changed (i.e. the risk of pregnancy), not the act itself. The Court set out the narrow circumstances where the current law recognises that a deception of this nature extinguishes consent so that it has the potential to be rape. These include where there is a deception as to whether ejaculate will be despotised inside the other person and a deception as to the identity (including sex) of the other person (the latter of these perhaps being particularly difficult to reconcile with modern life).
It is highly improbable that Kwame’s deception would be found to be sufficiently closely connected to the performance of the sexual act, and as such he cannot be deemed to have committed a criminal offence, albeit his actions may be frowned upon by some from a moral and ethical perspective. The criminal law is not yet so sophisticated as to be able to navigate the minutiae of intimate relationships. It acts perhaps as a bright line dictating the minimum requirements that have been agreed by us all rather than a gold standard. A public debate that might lead to legislative clarity in this area would be welcomed by many. The Court of Appeal has made it abundantly clear that this is the way forward as opposed to Judges extending the law in their decisions.
There is no legal requirement to positively disclose anything, or anything truthful, by way of personal details to a potential sexual partner. Kwame not being upfront with Nilufer in relation to the status of his sexuality raises questions about the extent to which we are morally obliged to disclose information, such as sexual history, sexual orientation, sexual health etc... But where do we draw the line? It perhaps lies somewhere between what our individual sense of morality dictates us to disclose, and what we want to know before we consent to a sexual activity. But, as with anything intimate that involves two adult individuals, such a line can easily be blurred in the heat of the moment.
For further information on the issues raised in this blog post, please contact a member of our criminal litigation team.
Leena Lakhani is a barrister in our Criminal Litigation team. Her defence experience includes dealing with a wide range of offences, from motoring offences, public order and common assault to cases involving serious violence, sexual misconduct and dishonesty offences.
She brings considerable prosecution experience, having advised on and appeared in trials and hearings relating to serious violence, drug offences, firearms and fraud offences. As a result of her experience, she has an extensive understanding of all stages of a criminal case.
Sandra Paul is a partner in our Criminal Litigation team. She has a wealth of experience in criminal and related litigation. The majority of her work concerns defending allegations of sexual misconduct. She works with clients in the UK and abroad, including allegations following the #MeToo campaign.
She has a particular passion and aptitude for working with children and young adults, navigating them safely through the youth justice system. Youth crime is a specialist area in which Sandra is a leader in her field.
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