Misrepresentation and Sexual Consent: Lessons from the Law of Contract

Abstract

Much has been written in support of the criminalisation of the dishonest inducement of sexual consent, but existing proposals for criminalisation have been subject to numerous powerful criticisms, including the absurdity of criminalising ‘trivial’ deceptions, the undue impingement on the right to privacy, and accusations of excessive moralism. The aim of this article is to propose a new model for the criminalisation of the dishonest inducement of sexual consent based upon the contract law doctrine of misrepresentation – the Misrepresentation Model for Sexual Consent – that addresses, or at least mitigates the force of, some of the most common and potent criticisms levied against the existing proposals for criminalisation. The strengths of the Misrepresentation Model for Sexual Consent will be shown by comparing the Misrepresentation Model for Sexual Consent against Professor Jonathan Herring's much-debated model. Further, in conceptualising and defending the Misrepresentation Model for Sexual Consent, this article will demonstrate that there is much to be gained for the development of criminal law by drawing lessons from private law.