Key Takeaways
1. Under new laws that came into effect in June 2022, you can now be guilty of sexual assault and other sex offences if another person agreed to engage in the sexual activity as a result of a “fraudulent inducement”.
2. You will not be guilty if the misrepresentation was about your income, wealth or feelings.
3. It is not clear which other types of lies will constitute “fraudulent inducements” capable of vitiating consent under the new laws.
Background
Since time immemorial, deception has formed an integral part of human mating. People – both males and females – have utilised a wide range of dishonest practices in order to attract partners, form relationships and, perhaps most importantly, have sex.
One of the key ways in which people have done this is by telling lies. While the subject matter of the lies has changed over time as society has evolved, the objective has remained the same, namely, to persuade another person to have sexual relations.
Historically, various types of fraudulent misrepresentations used to procure sex have been criminalised in Australia. However, the scope and nature of the respective offences have differed from State to State.
Historical offence of procuring carnal knowledge by fraud
In NSW, the offence of “procuring etc. carnal knowledge by fraud” existed until 2003. The now-repealed section 66 of the Crimes Act 1900 (NSW) made it an offence for a male – yes, only males – to induce a female to engage in sexual activity (then described as “illicit carnal connection”) by any “false pretence, false representation or other fraudulent means”. While the wording of this offence provision appears broad, it was interpreted by the courts in ways that limited its application to only certain forms of deception.
Repeal of procurement offence
In 2003, the procurement offence was repealed by the Crimes Amendment (Sexual Offences) Act 2003 (No 9) (NSW). This meant that the procuring of sex by deception was no longer unlawful except in four limited circumstances listed in the now-repealed section 61HE(6), relating to a mistaken belief as to the identity of the accused or the nature of the sexual activity itself.
NSW Law Reform Commission recommendation
In September 2020, the NSW Law Reform Commission published its report titled “Consent in relation to sexual offences”.
The report includes a wide raft of recommendations, the most publicised of which was the introduction of the requirement for a defendant to seek “affirmative consent” to sexual activity.
One of the Law Reform Commission’s other recommendations was that the Crimes Act 1900 be amended so as to provide that a person “does not consent to a sexual activity if the person participates in the sexual activity because of a fraudulent inducement”.
New Laws
On 1 June 2022, the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 came into effect. This law introduced very significant amendments to the Crimes Act 1900 regarding consent to sexual activity.
The new laws were the subject of extensive media reporting and political debate. However, the focus of this public discourse was almost solely on the new legislative requirement for “affirmative consent” to be obtained prior to sexual activity. Other important aspects of the new laws received very little, if any, attention.
Section 61HJ(1)(k): Sex by fraudulent inducement
One of the more controversial aspects of the new laws that was largely overlooked was the re-criminalisation of sex by fraudulent inducement.
The way that this was achieved was with the introduction of the new section 61HJ(1)(k) of the Crimes Act 1900, which relevantly provides as follows:
61HJ Circumstances in which there is no consent
1. A person does not consent to a sexual activity if–
…
(k) the person participates in the sexual activity because of a fraudulent inducement.
…
(3) In this section–
“fraudulent inducement” does not include a misrepresentation about a person’s income, wealth or feelings.
This means that if you lie to persuade someone to engage in a sexual activity with you and it works, the consent they gave you is not valid at law and you may be guilty of a criminal offence.
What kind of sexual activities does section 61HJ(1)(k) apply to?
Section 61HJ applies to any “sexual activity”.
“Sexual activity” is defined in section 61HH to mean sexual intercourse, sexual touching or a sexual act. Each of these terms are defined in the Crimes Act 1900 as follows:
Sexual intercourse
“Sexual intercourse” is defined in section 61HA of the Crimes Act 1900 to mean:
(a) the penetration to any extent of the genitalia or anus of a person by–
(i) any part of the body of another person, or
(ii) any object manipulated by another person, or
(b) the introduction of any part of the genitalia of a person into the mouth of another person, or
(c) the application of the mouth or tongue to the female genitalia, or
(d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).
Common examples of sexual intercourse are penile-vaginal sex, anal sex and most forms of oral sex.
Sexual touching
“Sexual touching” is defined in section 61HB of the Crimes Act 1900 to mean any touching by a person of another person:
(a) with any part of the body or with anything else, or
(b) through anything, including anything worn by the person doing the touching or by the person being touched,
in circumstances where a reasonable person would consider the touching to be sexual.
Common examples of sexual touching are touching of the breasts, penis, buttocks, and even just kissing.
It is important to note that sexual touching is not limited to touching of the genitalia, breasts, etc., but can apply to the touching of any body part if a reasonable person would consider the touching to be sexual.
Sexual act
A “sexual act” is defined in section 61HC of the Crimes Act 1900 to mean an act (other than sexual touching) carried out in circumstances where a reasonable person would consider the act to be sexual.
Common examples of sexual act include masturbating in front of someone and inciting someone to masturbate themselves.
What offences does section 61HJ(1)(k) apply to?
By virtue of section 61HG of the Crimes Act 1900, section 61HJ(1)(k) applies to the following offences:
What types of lies does section 61HJ(1)(k) apply to?
There is no definition of “fraudulent inducement” contained in the Crimes Act 1900.
Section 61HJ(3) provides that a “fraudulent inducement” does not include a misrepresentation about a person’s income, wealth or feelings. So, you cannot be found guilty of a sexual offence simply because the other person consented because of a lie you told about how much money you earn, how wealthy you are or how you felt.
However, the legislation is silent as to what, if any, limits there are on the types of lies that can vitiate consent by virtue of section 61HJ(1)(k).
In the Second Reading Speech for the Crimes Legislation Amendment (Sexual Consent Reforms) Bill 2021, which introduced section 61HJ(1)(k), the Minister stated as follows:
“Pick up lines or white lies, without more, are unlikely to satisfy the legal criteria for fraud, and would be unlikely to satisfy the causative element of the provision. This includes claims like ‘it will be the best sex you will ever have’ or ‘I’m rich’, ‘I own this bar’, ‘I can bench press 300kg’, or ‘I’m single’.
It would typically be impossible to regard trivial misrepresentations as having a sufficiently close causal connection to the complainant’s consent to be considered as criminal.
The relevant test is whether the complainant participated in sexual activity substantially because of an accused’s fraudulent inducement.”
One problem with this is that while the Minister stated it in the Second Reading Speech, section 61HJ(1) does not contain any such limit itself. This is crucial because the police will ultimately decide who to charge. It is doubtful that many, if any, police officers will even be aware of the existence of the Second Reading Speech. As a result, countless people may be charged with sexual offences arising from minor lies that they are alleged to have told.
A further problem is that while courts may take into account Second Reading Speeches when interpreting legislation, they are not bound to follow them.
Furthermore, even if the Courts decide to interpret section 61HJ(1)(k) narrowly, they will likely face real difficulties in determining any coherent and consistent test for which lies will vitiate consent and which laws will not.
The approaches taken by courts in other jurisdictions when interpreting laws that criminalise sex by deception have often been varied and inconsistent. Various cases from these jurisdictions demonstrate the difficulties involved in determining the outer limit of laws that make sex by fraud illegal.
We will now consider some examples of the types of lies that have been the subject of prosecutions in other jurisdictions in which sex by fraud is against the law.
Lying about an intention to pay for a sexual service
One of the more common types of prosecutions for sex by deception in other jurisdictions is where the defendant lies about their intention to pay a sex worker for sexual services.
In a decision from the Australian Capital Territory, R v Livas [2015] ACTSC 50, the victim, who was a self-employed sex worker, had sex with the defendant after he fooled her into believing that an envelope he had given her contained $850 when really it only contained folded paper.
The defendant pleaded guilty to an offence of sexual intercourse without consent, contrary to section 54(1) of the Crimes Act 1900 (ACT) on the basis that he had obtained the complainant’s apparent consent by fraud.
Although not certain, we expect this kind of deception would fall within the scope of the new section 61HJ(1)(k) of the Crimes Act 1900 (NSW). Indeed, the Second Reading Speech for the new laws states that the fraudulent deception of sex workers “would likely be caught by the provision”.
Lying about the purpose of the sexual activity
In a Victorian decision, Omnis v The Queen [2013] VSCA 271, the defendant deceived multiple victims into having sex with him on the basis that he was a “scout” for an adult services boutique business who was testing whether they could carry out sexual acts in a “live situation”.
Mr Omnis pleaded guilty to numerous offences, including procuring sexual penetration by fraud, contrary to section 57(2) of the Crimes Act 1958 (Vic).
In another Victorian decision, DPP v Macfie [2012] VSCA 314, the defendant had sexual intercourse with various victims – many of whom were young teenagers – after telling them the lie that he was a member of the Mafia and that he could recruit them into the Mafia if they had sex with him.
While it is uncertain, we expect that this kind of deception would be covered by the new section 61HJ(1)(k) of the Crimes Act 1900 (NSW).
It is also possible that trickery such as that in the case of Omnis would also fall within the ambit of section 61HJ(1)(j) of the Crimes Act 1900 (NSW), which provides that a person does not consent to sexual activity if they are mistaken “about the identity of the other person”.
Lying about being transgender
In the UK, there have been several prosecutions of transgender persons who have lied to another person as to their biological sex.
One of the more prominent examples is that of R v McNally [2014] QB 593, where the victim had sex with the defendant, who was a transgender male, after being deceived as to the defendant’s biological sex. The defendant had used a dildo to penetrate the victim’s vagina, pretending that it was a penis. The defendant was convicted with assault by penetration, an offence similar to sexual assault.
It is not clear whether a transgender person charged with sexual assault in similar circumstances would be found guilty pursuant to the new laws in NSW.
Lying about an intention to not ejaculate
In the English decision of R (F) v DPP [2013] EWHC 945, the defendant was convicted of rape after the complainant consented to sex when he told her that he would not ejaculate inside her, as she did not want to become pregnant. Despite this, the defendant deliberately ejaculated inside the complainant, causing her to become pregnant.
He was convicted of rape on the basis that his deception had vitiated consent.
It is not clear whether a lie such as this would be sufficient to vitiate consent under section 61HJ(1)(k) of the Crimes Act 1900 (NSW).
Lying about fertility
In another English decision, R v Lawrence [2020] EWCA Crim 971, the defendant was charged of rape after he lied about having had a vasectomy to convince the complainant to have unprotected sex with him.
He was convicted by the trial court but then appealed to the Court of Appeal (Criminal Division). The Court of Appeal upheld the appeal, ruling that consent is not vitiated by the falseness of premises about the broad circumstances surrounding the sexual intercourse, as opposed to lies closely connected to the nature and purpose of the sexual intercourse.
It is not clear whether section 61HJ(1)(k) of the Crimes Act 1900 (NSW) would apply to a lie about fertility.
Lying about being HIV positive
In another English decision of R v B [2006] EWCA Crim 2945, the defendant failed to disclose his HIV status to the victim before having sex with her.
The UK Court of Appeal held that the failure to disclose his HIV status was not relevant to the issue of consent because the key question was whether the victim consented to the sexual act, not whether she consented to a sexual act with a HIV positive person.
In R v McNally, cited above, the Court of Appeal indicated that R v B did not go so far as to say that a positive deception regarding HIV could not vitiate consent.
However, in R v Lawrence, cited above, the Court stated that there is no distinction between express deception and a failure to disclose.
It is unclear whether a lie about being HIV positive or having any other other sexually transmissible infection would be captured by section 61HJ(1)(k) of the Crimes Act 1900 (NSW).
Lying about religion or ethnicity
In 2010, a man falsely told an Israeli Jewish woman that he was Jewish because he believed that would make it more likely that she would have sex with him. After having sex, the woman discovered that the man was in fact Palestinian and she complained to the police.
The man was convicted by an Israeli court of rape by deception and sentenced to 18 months imprisonment.
This decision was criticised by some commentators for its perceived biased application. Specifically, doubts were expressed as to whether, for example, a Jewish male who pretended to be a Muslim in order to have sex with a Muslim woman would have also been convicted and imprisoned.
It is unclear whether deception about religion, ethnicity, etc., would be caught by section 61HJ(1)(k) of the Crimes Act 1900 (NSW).
Will a failure to disclose suffice?
One important question is whether the failure to disclose a matter can amount to a “fraudulent inducement” for the purposes of section 61HJ(1)(k).
Regrettably, the new laws do not stipulate whether or not an omission can be enough to vitiate consent.
In the Second Reading Speech, the Minister stated as follows:
“‘Fraudulent inducement’ in the context of these reforms requires something more than silence or non-disclosure on the part of the accused – it requires a positive act or spoken words, amounting to a falsity which the accused knows to be false. The accused must intend that by making the representation, they seek to obtain the complainant’s participation in the sexual activity.”
Again, the problem with this is that this purported requirement that there be a positive act in order for section 61HJ(1)(k) to be engaged is not contained in the legislation itself. The police officers who are ultimately responsible for arresting and commencing criminal proceedings against persons for sexual offences will likely never even have heard of the Second Reading Speech.
Furthermore, there is no guarantee that the courts would agree with the interpretation urged in the Second Reading Speech.
As discussed above in relation to deception about HIV status, the UK Court of Appeal ruled in R v Lawrence that there is no distinction to draw between positive lies and failures to disclose. There is no assurance that the NSW Courts would not adopt a similar approach.
Are any other types of lies covered in other parts of the Crimes Act 1900?
Section 61HJ(1)(k) is not the only provision of the Crimes Act 1900 which deals with sex by deception.
Stealthing
Stealthing is the act of secretly removing a condom during sex, without the other person’s consent.
Prior to June 2022, there was debate as to whether stealthing constituted sexual assault under the Crimes Act 1900.
Under the new laws, the position is now much clearer.
Specifically, section 61HI(5) of the Crimes Act 1900 states as follows:
61HI Consent generally
(5) A person who consents to a particular sexual activity is not, by reason of that fact, to be taken to consent to any other sexual activity.
Example: A person who consents to sexual activity using a condom is not, by reason only of that fact, to be taken to consent to a sexual activity without using a condom.
Mistake as to the nature of the activity
Prior to the new laws coming into effect, the now-repealed section 66HE(6)(c) and (d) of the Crimes Act 1900 provided that a person does not consent to sexual activity if it is under a mistaken belief that the sexual activity is for health or hygienic purposes or any other mistaken belief about the nature of the activity induced by fraudulent means.
This position has largely remained unchanged under the new laws. Specifically, the new section 61HJ(i) provides as follows:
61HJ Circumstances in which there is no consent
1. A person does not consent to a sexual activity if–
…
(i) the person participates in the sexual activity because the person is mistaken about–
(i) the nature of the sexual activity, or
(ii) the purpose of the sexual activity, including about whether the sexual activity is for health, hygienic or cosmetic purposes.
This provision will most commonly apply to situations where medical or other health practitioners deceive victim patients into believing that the relevant sexual activity is being performed for a genuine medical reason.
Mistake as to the identity of the other person
Under the new section 61HJ(1)(j) of the Crimes Act 1900, a person does not consent to sexual activity because they are mistaken about the identity of the other person or that they are married to the other person.
This does not represent a change, as these two forms of deceit were already covered by the now-repealed section 61HE(6)(a) and (b) of the Crimes Act 1900.
This will cover situations where a person lies about who they are in order to persuade someone to engage in sexual activity with them.
Need Assistance?
If you are charged with a criminal offence, it is crucial that you speak with a criminal lawyer immediately.
Hanna Legal is one of NSW’s leading criminal law firms and our lawyers have extensive experience in representing people charged with sexual offences in the Local Court and District Court.
If you or someone you know requires legal advice, call us on (02)9268 0444 or email us at info@hannalegal.com.au to arrange an initial conference.
