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Deception and Sexual Consent

If the consent to a particular sexual act is obtained via deception, can the sexual act still be considered consensual at all?

Image: A still from the television series 'I May Destroy You'. Terry Pratchard realises that she has been deceived into consenting to sex with two men who presented it as a chance encounter between strangers but had planned it beforehand.

In 1997, an undercover police officer in England misrepresented to Monica (not her real name) that he was an environmental activist when in fact, he was part of a covert operation to infiltrate an environmental movement. On the basis of this misrepresentation, Monica, who was also participating in the movement, agreed to be sexually intimate with him. She was unaware about his true identity until fourteen years later when she read about it in media reports. For Monica, this deception was a serious breach and the sexual intimacy amounted to rape. Although she attempted to take legal recourse, the Director of Public Prosecutions decided not to take action against the police officer. In 2018, Monica approached the England and Wales High Court, challenging the decision. The court observed that consent to a sexual act can be vitiated under two circumstances—if the deception was closely connected to the (physical) performance of the sexual act or if the deception could be treated at par with a case of impersonation.

Monica's case raises several questions around sexual consent and deception that are also relevant in the Indian context today. Most people consider information sharing to be essential to affirmative and unequivocal consent in sexual intimacy. Depending on who we ask, details of one’s identity, marital status, health status, and the authenticity of the promises or representations we make may be considered significant in many contexts of sexual intimacy. For instance, as in the case of Monica, can the police officer’s misrepresentation about his political beliefs be said to vitiate consent as defined under the Indian Criminal Law (Amendment) Act 2013, i.e. unequivocal, affirmative, and enthusiastic consent?

Probing further, in Monica’s case, if the police officer’s misrepresentation does vitiate consent, does the subsequent sexual intimacy amount to deceptive sex or rape? In other words, if the consent to a particular sexual act is obtained via deception, can the sexual act still be considered consensual at all? This is especially relevant since globally, the jurisprudence of vitiated consent has focussed on misconceptions regarding the “nature or purpose of the act” and not the surrounding circumstances. The question remains—exactly which misrepresentations should be considered significant enough to vitiate consent? What about misrepresentation by omission? For instance, information which was true at the time it was shared (e.g. a man who claims to be unmarried or single) but no longer holds true (he later gets married or has another sexual partner but doesn’t inform the person who gave consent)? Would this be a case of deception?

Globally, courts consider any misrepresentation about the nature and purpose of sexual activity as a deception that nullifies consent. For instance, if a music coach misrepresents to his student that sexual intimacy with him would improve her voice, the student is under a misconception as to the purpose of the sexual activity. Therefore, her consent to the sexual activity is nullified. However, courts have generally not evaluated the context or the circumstances of such deceptions. Yet this position is evolving as courts place emphasis on context, given that people often use context to manipulate the other party’s consent. Jonathan Herring, a legal scholar, has argued that this kind of manipulation through deception is as violent as rape by physical force, because it involves using the party’s own choices and decisions against them, thus undermining their autonomy.

In India, no specific statute addresses rape by deception except for misrepresentation of the identity of the woman’s husband  (Indian Penal Code, 1860). Courts in India only recognise one form of misrepresentation in sexual intimacy—when a man falsely represents to a woman that he will marry her, and based only on this misrepresentation the woman agrees to be sexually intimate with him. In this situation, the law assumes cisgender heteronormative relationships as the norm. Further, such a framework allows courts to put on trial the authenticity of the man’s promise to marry to determine whether such a promise was fraudulent to begin with. In order to decide such cases, courts have relied on their understanding of whether the marriage was possible at all, using caste and religion as determinants. This reiterates a Brahmanical patriarchal worldview, which is based on the subordination of both women and oppressed castes. For instance, in one case, the Supreme Court held that the woman should have known that marriage between them would not have been possible because the parties belonged to different castes. Thus the court's decision regarding the veracity of the man’s promise was rooted in caste endogamy. In another case, the Supreme Court held that a woman could not have been sexually intimate with the accused on the basis of his promise of marriage since she was already married to a third party. Here, the court considers marriage to be sacrosanct and divorce not within the realm of possibilities. In yet another case, the Bombay High Court observed that an educated woman's consent cannot be said to have been obtained by fraud or false promise of marriage because she would have known that there are consequences to having sexual relations and problems of compatibility may arise. All these cases remain valid precedents today.

The “real rape” myth also leads to courts taking a lenient view in cases where false promises of marriage have been made. This is based on the idea that women falsely accuse men in order to marry them or file revenge cases. Settlement by “compromise” due to immense societal pressure to not take judicial recourse is frequent. Further, courts do not address other kinds of deceptions such as those regarding health status, political leanings, or misinformation about the number of sexual partners. How will such cases be decided?

At this juncture it is relevant to recognise that in some cases, courts have acknowledged women’s sexuality. For instance, in Uday v. State of Karnataka, the Supreme Court observed that the parties had engaged in sexual intimacy not based on a promise of marriage but because the prosecutrix desired it too. How must courts balance the recognition of women’s sexuality on the one hand with situations where women were deceived into consenting to sexual acts?

An overwhelming number of Dalits, Bahujans, Adivasis, Vimuktas, and persons belonging to Other Backward Classes are incarcerated by the neoliberal state. In this context, it is important to question if the carceral state adjudicating such cases has the obligation to examine alternatives. The jurisprudence around deceptive sex in India is still nascent and it is imperative to probe beyond just false marriage promises to explore other kinds of deceptions and what principles must be followed then. For instance, the England and Wales High Court has considered whether stealthing, i.e. removing a condom without the knowledge of the woman, is a deception which vitiates consent to the sexual act. In an Israeli court, deception based on religious beliefs has been contended to vitiate consent. In Australia, the High Court has considered whether deception about one’s marital status vitiates consent. The global discourse around deceptions in sexual intimacy is rich and growing, and courts in India would benefit from participating in it.