The case of Mark Kennedy, the undercover policeman who infiltrated environmental protest groups, has been back in the news, as a group of women who had been in sexual relationships with undercover officers appeared in the High Court. These women are bringing claims against the police for the emotional trauma they say has been caused by the deception underlying these relationships. The women have chosen to air their grievances through the civil courts, but the facts also raise an interesting question of criminal law: in being deceived about the true identity of the police officers, were these women truly consenting to sexual relations with them? Put more simply, might these officers be guilty of committing sexual offences?

Under the law as it stood before the Sexual Offences Act 2003, there was a criminal offence of “procuring sexual intercourse by false pretences”, which appears wide enough to include the conduct of the undercover officers in this case. Despite the fact that the Home Office review preceding the 2003 Act, Setting the Boundaries, recommended the replication of this offence in the new law as one of “obtaining sexual penetration by threats or deception”, the government, for unknown reasons, chose not to include the offence in the eventual White Paper or bill. This means that deception by one party (apart from in the specific case of individuals with a mental disorder) must be considered solely as an issue of consent.

The definition of consent can be found in s74 of the act: “a person consents if he agrees by choice, and has the freedom and capacity to make that choice”. Specific circumstances which are presumed to vitiate consent are outlined in ss75 – 76. S75 deals with situations involving threats or inability to consent due to drugs/sleep etc, which do not apply in the present case. S76 deals with issues of deception, but is limited to two specific examples: deception as to the “nature or purpose” of the act; or impersonating someone “known personally to the complainant”. So although s76 is designed to deal with the issue of deception, it is too narrow to cover the situation of undercover police. Instead, it is the rather broad definition from s74 which must be evaluated to determine if an individual has consented to sexual activity.

So, does deception regarding someone’s identity or characteristics remove a person’s “freedom and capacity” to choose? It certainly seems likely that if, before embarking on a sexual relationship, one of the police officers in question had revealed the fact that he had been spying on the woman for the preceding months, and that their friendly relationship had been based on a lie, the woman may well have changed her mind, and withdrawn her consent. The issue is whether this renders the consent actually given in the circumstances invalid.

Naturally this area of law is fraught with ethical and policy concerns. Whilst the law would not want to encourage the idea of people being tricked into sexual relationships, neither is it desirable to extend the law to prohibit very minor fabrications. For example, would any of us be comfortable with the idea that lying about what car you drive, or the state of your bank balance, could vitiate consent in sexual relations?

The question of how deception can impact on the issue of consent under s74 has been examined by the courts in a number of cases. In the case of R v B [2006] EWCA Crim 2945, the court held that “the fact that the defendant may not have disclosed his HIV status is not a matter which could in any way be relevant to the issue of consent under s74 in relation to the sexual activity in this case”. This seems to suggest that deceptions short of those outlined in s76 will not extinguish consent. However, when Julian Assange appeared in the High Court in 2011 to fight extradition proceedings ([2011] EWHC 2849 (Admin)), the court appeared to reach a different conclusion. One of the allegations against Mr Assange was that he had sexual intercourse with a woman after leading her to believe that he was wearing a condom, when in fact he was not, against her express wishes. The court did not allow Mr Assange to rely on R v B, stating that whether or not he was using a condom could be relevant to the issue of the woman’s consent. This results in a confusing picture as to what sort of deception affects whether someone is truly consenting to sexual activity.

It is evident that the law in this area is not clear, and is complicated by numerous ethical concerns. Given the allegations made in some quarters that the sexual relationships currently being challenged in court are only the tip of the iceberg, it will be fascinating to see how the courts choose to juggle the issues at play, as this controversial area of law develops.