Deception, mistake and non-disclosure: challenging the current approach to protecting sexual autonomy

Abstract

English criminal law appears reluctant to criminalise deceptive sexual behaviour. It currently does so only in circumstances where the defendant has actively lied to the complainant regarding a fact recognised by law as crucial to consent. This restrictive approach arguably fails in many cases to protect the complainant’s sexual autonomy. The central argument presented in this article is that all forms of deception, including non-disclosure, a false promise and mistake as to a material fact, may distort the complainant’s decisionmaking process and undermine her ability to make an informed choice. A material fact is one which plays a significant role in a person’s decision to engage in sex. This article advocates that the law of rape should be widened to include mistake on the part of the complainant and non-disclosure by the defendant.