Gayle Newland, a 25-year-old
Chester University student has received an 8-year prison sentence after a
conviction of assaulting her partner by sexual penetration. The decision has
received considerable media criticism due to the seemingly harsh
sentence, as well as if the case should have been encompassed by the criminal
law at all. The decision highlights a wider issue for the law in the area of
invalidating consent by deception, and in this post, I hope to discuss some of
these problems and propose what reform might be appropriate in light of those
issues.
Facts
A woman named Gayle Newland and
the complainant (anonymised) were friends at university. Newland posed as a
man, using the male alter ego ‘Kye’ online. Newland, as Kye, contacted the
complainant developing an online relationship, and the complainant believed Kye
to be a ‘real’ person. They met, and later had sex on up to 10 occasions, with
Kye claiming to have significant burns and disfigurements which meant that the
complainant had to wear a blindfold for the time they were together. In reality,
this was to conceal the fact Newland was wearing a prosthetic penis, and used
bandages to cover her breasts. The complainant took off her blindfold to
discover that Newland had deceived the complainant as to her sexual identity.
Relevant law
Newland was charged with assault
by penetration, pursuant to s.2 of the Sexual Offences Act 2003, and pleaded
not guilty when charged. A person commits this offence if he intentionally
sexually penetrates the other person with their body or anything else, without
the consent of the other person, and does not reasonably believe that the other
person consents.
Consent is defined in s.74 of the
Sexual Offences Act 2003. It states that a person consents if he agrees by
choice, and has the freedom and capacity to make that choice. The Court of
Appeal has ruled that a deception as to a person’s sex can invalidate consent,
though the law relating to when a deception is sufficient to invalidate consent
has been developed in a piecemeal fashion, without any standard test. As a
result, there appear to be inconsistences in the current state of the law.
Sentencing
As stated, Newland was sentenced
to 8 years imprisonment. This grabbed several headlines, due to what appears to
be a rather severe sentence based on her offence. HHJ Dutton has received the
brunt of the criticism, as he was the judge that delivered the sentence on the
case. Whilst it may be a difficult pill to swallow, particularly as the
sentence feels overly harsh, it seems HHJ Dutton has adhered to the relevant
sentencing guidelines.
The guidelines which judges are
obliged to follow are shown below for the relevant offence.
In HHJ Dutton’s sentencing
remarks, he states ‘I am quire sure that the psychological impact of her
experience has been severe and will be long lasting’, placing it in the second
category. He goes on to comment on the months these events took place across,
the abuse of trust, the vulnerability of the victim due to personal
circumstances and the significant degree of planning which would place the
culpability in the A section. Looking at the table below, it seems that the
judge arrived precisely at the starting point of 8 years custody for the
offence. As Newland pleaded not guilty, there was no reduction for a guilty
plea, and the remaining factors for reducing the sentence were considered but
rejected with clear reasons. It would be difficult to argue then, that the
sentencing guidelines were not properly followed.
The sentencing remarks of HHJ Dutton in Newland’s case can be found
here:
https://www.judiciary.uk/wp-content/uploads/2015/11/r-v-newlandsentencing.pdf
Deception Point
Case law has made clear that
certain deceptions invalidate consent, whereas other deceptions do not. The
distinction is crucial, as the former attracts criminal liability of the most
serious kind. The title ‘deception point’ of this short paper refers to the
point at which a deception is considered seriousness enough to invalidate
consent. It would be logical to assume that the court views the deceptions that
vitiate consent as more serious, hence they attract criminal status. What
perhaps is not so clear, is how severity is determined. As alluded to, in R v McNally [2013] EWCA Crim 1051, the
Court of Appeal has held that a deception as to sexual identity can
vitiate consent. Yet when compared with other decisions on consent and
deception, there appears to be confusion.
In R v EB [2006] EWCA Crim 2945, the court held that not disclosing a
serious sexually transmitted, such as HIV infection to a sexual partner does
not vitiate consent. These decisions appear inconsistent, as whilst a deception
as to sexual identity may outrage a partner, a sexually transmitted disease has
the potential to cause serious bodily harm to their partner. Subsequently, the
law considers an active deception as to sexual identity more serious than a
passive deception as to a being infected with a sexually transmitted disease. On
balance, as most would reasonably consider serious bodily harm to be more
severe than significant psychological harm,
one would assume the former to be of more concern, and more deserving of
criminal protection.
It should be noted that R v EB [2006] distinguishes between a
failure to disclose from an active deception. A defendant may fall foul of the
criminal law had he informed his partner he did not have any STI’s, as opposed
to him simply not mentioning he had one. The apparent inconsistencies with the
law on consent and deception reach wider than sexually transmitted diseases. A
more intriguing decision centres around the agreement not to ejaculate inside
of his partner. Concealing his intention to ejaculate inside his partner, with
the express agreement that the male party would not, but then proceeding to do
so was held as invalidating consent in R(F)
v DPP [2013] EWHC 949 (Admin) as he considered the woman subservient to his
control.
Whilst in in Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin),
not wearing a condom when consent was expressly given on the condition one
would be worn was held to invalidate consent, failing to disclose an STI does
not. The decision in Assange is
perhaps difficult to reconcile with R v
EB, but could be considered consistent with R(F) v DPP. As in both cases there was an express agreement as to a
particular condition.
However, it is unlikely to be the
case that a criminal deception would be made out had the express agreement had
been as to something that would reasonably be considered as trivial. If Leveson
LJ’s statement that wealth was ‘obviously’ not a deception that could attract
criminal liability is followed, then an express agreement that sex was
consented to on the false basis that one party was very wealthy presumably
would not fall foul of s.74. Therefore, the test is not one which solely
considers whether an express agreement and an active deception took place, but
rather one which objectively assesses the significance of the matter that the complainant was deceived
of.
It may be pure speculation, but
one might argue it was very reasonable to agree to avoid the inherent risks and
consequences being ejaculated into entails, such as the risk of a myriad of STI’s as well as
pregnancy. Equally, the same risks are presented where there is a deception as
to the use of a condom, as in Assange.
These decisions suggest it is the objective reasonableness of what was agreed
to in order to procure consent that is the crucial consideration in a case of
this kind.
How should the position be consolidated?
The decision in R v EB appears to be the anomaly, and the most inconsistent with the catalogue of
case law on sexual deception. Failing to disclose a positive diagnosis of HIV,
what most would reasonably consider to be the most serious sexual transmitted
disease due to its consequences and incurability, sits uncomfortably with the decision
in McNally. The harm inherent to
contracting HIV is significant, as it is incurable, can shorten life span, and
requires a lifetime of regimented medication, which itself, has highly
undesirable side effects. However, that is not to say that the complainant in
Gayle Newland’s case and in McNally did
not incur harm. For them, the detriment was psychological; the significance of
which should not be disregarded.
In both Gayle Newland and McNally, the psychological harm from
discovering the defendant’s deception had resulted in psychological harm.
However, for some at least, realising the same deception as to sexual identity would
not be of concern, particularly as sexual mores continue to develop and change.
Indeed, harm suffered by a person discovering a deception of sexual identity will
also vary greatly, from no harm to as significant as that experienced by the
complainants in Newland and McNally. Yet
HIV and other serious disease do not discriminate, and whilst the reactions of
receiving a diagnosis may still be varied, the physiological effects are still
as profound regardless of the host.
A reasonable position may place
the ‘active deception’ as the operating difference. In R v EB, it was suggested had the deception been active, the
defendant may have incurred criminal liability.
This poses the question that had Gayle Newland’s sexual encounter with
the complainant been fleeting, with little to no opportunity for her to deceive
the complainant as to her sexual identity, yet still using the same method for
sexual penetration, would she still be liable? Solely on the ‘active deception’
test, the answer might be in the negative. However, the problem with the active
deception test is two fold.
First, the active deception
distinction has the potential to reach absurd results. As is currently the
case, a deception as to sexual identity is treated as criminal whereas a
failure to disclose a HIV diagnosis is not. A failure to disclose sexual
identity, or indeed, a history of sexual identity, may not attract liability,
even if the defendant knew it was of crucial importance to the complainant.
Matters such as HIV status would presumably be of crucial importance to the
majority of the population, so it would reasonable to assume the defendant in
the R v EB was wise to this fact. The
same, therefore, should be presumed for more general matters, and for less
obvious issues, a common sense approach of whether that factor was important to
the complainant should be taken.
Second, determining cases on the
basis of an active deception fails to give adequate importance to the
complainant’s perspective and sexual autonomy to make decisions. It may be
reasonable to assume that the decision in R
v EB was reached to avoid establishing an impossible burden of disclosing a
raft of information prior to sexual intercourse, in order for it to be
considered legitimate consent. This unreasonably high standard of expectation
would be very difficult to obtain. However, it is still critical that a
complainant’s perspective is given the primary consideration, though whilst it
is clearly undesirable for an unlimited range of deceptions to be capable of
invalidating consent, a reasonable balance should be negotiated between the
perspective of the complainant and that which is objectively reasonable.
Reform
Oxford University Professor
Jonathan Herring, in his article ‘Mistaken Sex’, argues for a victim-centred
approach for sexual deception. He states that where the defendant knows the
complainant is mistaken as to an essential factor to consent, there cannot be
consent. This approach appears to leave the category as to what could vitiate
consent unrestricted. There might be little doubt however, that this too could
lead to absurd results. Herring does not even distinguish between an active
deception, which might procure the result of a consent being vitiated where the
defendant knows of a deception that the complainant has merely presumed, rather
than by an act of the defendant.
Leveson LJ’s obiter that a
deception as to wealth would ‘obviously not’ vitiate consent suddenly becomes possible
with Herring’s test. Indeed, even a deception that someone was born in a
different city than they claimed, that they were fertile when in fact they were
not, that their hair was naturally blonde when in fact it was brown, or that
their breasts were natural when in fact they contained implants could vitiate consent. The list is
endless, with all of the aforementioned deceptions potentially attracting
criminal liability under Herring’s test.
Indeed, it would be highly likely
that many of those opposed to the decision in Newland’s case would see
Herring’s approach as an extreme lurch in the opposite direction, even if it
does make for a more certain and clearer approach. An additional step might be
warranted in the form of an objective test of reasonableness. This could be
phrased in terms resembling the following:
(1) Where
the defendant knows that the complainant is mistaken as to an essential factor,
or factors combined, to which the complainant has based their consent, and;
(2) the
complainant would not have consented but for the deception, and;
(3) an
ordinary person would consider the deception to be one which was reasonable to
base consent for sexual activity on;
(4) there
shall be no consent for the purposes of s.74;
It may be unlikely this suggestion
for reform would change any of the current case law decisions. However, it does
achieve two things. First, it enshrines a victim centred approach in its
initial question, rather than relying primarily on an objective judicial
assessment, which is characterised by the current decisions. Second, in order
to curtail the unlimited matters that may be considered criminal deceptions,
the third item uses an objective assessment of whether the complainant is
reasonable in considering their consent invalidated.
Despite the limited difference of
the current approach, clarifying the position, even if not with the proposal
above, serves a beneficial function in itself. In what is one of the most
challenging areas of law, a skeletal formula may be of great advantage to
judges and advocates who are tasked with making and hearing the arguments that
determine what is serious enough to be criminally deceptive.
The inclusion of ‘factors
combined’ in the initial question includes the possibility of multiple deceptions
occurring. It leaves the possibility open that there may be several deceptions
that in isolation would be considered trivial, yet together achieve a deception
so fundamental that an ordinary person would consider it reasonable to assign
criminality to. Admittedly, these instances will seldom occur, and it might be
difficult to envisage a possibility of many otherwise trivial deceptions
amalgamating in to a criminally deceptive whole. Nevertheless, including an
instrument at the courts disposal may be a sensible decision.
Conclusion
Whilst there are many who believe
Gayle Newland’s sentence was unjustified, both the sentence and legal finding
are correct. What appears to be in disarray, however, is consistency, with
strange decisions being reached that differ greatly in their perceived severity, but fall on different sides of criminal liability.
The law currently shows that the criminal deception point is determined by a
combination of an objective seriousness of the deception, and whether the
deception was active or not. It is argued that this is an improper position for
the law to hold, and that a logical process of determining first the
perspective of the complainant and then the objective reasonableness of the
deception would be desirable. Whilst this may not change the decisions in McNally or in Gayle Newland’s case, the
decision in R v EB, which is
considered the most inconsistent, may be altered, providing a more consistent
approach for the law.
