R v Nelson
[2016] NZHC 1236
•9 June 2016
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL [RETRIAL]. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI-2015-021-000255 [2016] NZHC 1236
THE QUEEN
v
NIGEL ALLAN HAUAURU NELSON
Hearing: 31 May 2016 Appearances:
C E Clarke for Crown
K M Marriner for DefendantJudgment:
9 June 2016
JUDGMENT OF DUNNINGHAM J
[1] The defendant has been charged with various offences, mostly sexual in nature. He has applied under s 147 of the Criminal Procedure Act 2011 for the dismissal of 24 of the charges, involving six complainants,1 on the ground that a properly directed jury
could not reasonably convict him.2
1 The specific charges which are the subject of this application are listed in a schedule to this decision. Charges 53 and 58, which were charges of dealing in people under 18 for sexual exploitation against two other complainants, have now been removed from the application.
2 Criminal Procedure Act 2011, s 147(4)(c).
R v NELSON [2016] NZHC 1236 [9 June 2016]
[2] The Crown case is that the complainants only consented to the sexual activity because each believed that it was required for them to gain employment in the prostitution and/or pornography business that the defendant said he owned or recruited for. In fact, there was no prostitution or pornography business. However, a broadly similar story was told to each of the defendants, in order to get them to engage in sexual activities which they all say they would not otherwise have engaged in. The Crown says, therefore, that the complainants’ consent was vitiated because it was obtained by the defendant’s fraudulent representations, and was not full, free and informed consent to the sexual activities.3
[3] The defendant’s position is, however, that the Crown cannot show a lack of consent to the sexual acts which took place between the defendant and the complainants. The law has traditionally held that deception as to the benefits which would follow from the sexual activity does not vitiate consent as long as the person understood the sexual nature of the activity they were participating in. As a result, the Crown has failed to adduce credible evidence to show that, as a matter of law, a properly directed jury could reasonably convict.
The issue
[4] The critical issue in this case is whether, in the circumstances as disclosed in the statements of the complainants, a properly directed jury could find that the complainants were not consenting to the sexual activity. That turns on whether fraud of the type allegedly perpetrated on the complainants is a circumstance falling within either s 128A(7) or (8) of the Crimes Act 1961. Those subsections provide:
(7) A person does not consent to an act of sexual activity if he or she allows the act because he or she is mistaken about its nature and quality.
(8) This section does not limit the circumstances in which a person does not consent to sexual activity.
3 Relying on Crimes Act 1961, s 128A(7) or (8).
[5] While not closing off the possibility that the circumstances fall within s 128A(7), the Crown relies primarily on s 128A(8) as leaving the door open to argue that consent obtained through fraud or deception as to the potential benefits or rewards resulting from the sexual activity, is not consent to the sexual activity.
What is the evidence the Crown relies on?
[6] To address the issue arising, all that is required is a summary of the allegations. It is not necessary to set out in detail the precise facts in relation to each complainant.
[7] The charges involved are all of the following type:
(a) sexual violation by unlawful sexual connection;4
(b) making an intimate visual recording;5 and
(c) indecent assault.6
[8] In each case, the defendant is alleged to have obtained the agreement of the complainant to participate in the sexual act which constitutes the charge, on the basis that he operated a prostitution business or recruited employees for one, or that he operated an internet pornography website.
[9] Some of the charges relate to the defendant persuading complainants to strip down so he could take photographs of their genitals, or to masturbate so he could put photographs and videos of that activity on the defendant’s website, for potential clients to view. The complainants were told that when the pictures or videos were uploaded on the website, they would receive a payment per view, or they were told that the images would be used by potential clients to select the person they wanted to have
paid sex with.
4 Crimes Act 1961, s 128(1)(b) and s 128B.
5 Crimes Act 1961, s 126H.
6 Crimes Act 1961, s 135.
[10] The balance of the charges relate to the complainants being persuaded to participate with the defendant in what was described as “training” for the prostitution business. The alleged “training” included masturbation and oral sex with the defendant. The activity was said to be necessary because the complainants had to demonstrate they could perform the sexual acts required, and thereby satisfy the defendant they were ready for the type of work proposed.
[11] The ruse as to the prostitution business was supported by tactics such as a complainant being required to come around for an “interview” or to complete a printed form what looked like a formal contract, where the complainant was required to tick boxes nominating the kinds of sexual activity he was prepared to do. When filling out the form, some of the complainants were persuaded to tick the box where they agreed to provide homosexual services, even though they were heterosexual males, on the basis that this was a more lucrative part of the business.
[12] Most of the complainants say they were desperate for money at the time and were attracted by the promises the defendant made of significant earnings from his businesses. There is a general theme in the witness statements that the complainants only participated in the sex acts because the defendant had “tricked” them or deceived them, and they felt sickened by what they had agreed to do when they realised that the only motive for the sexual activity was the defendant’s own sexual gratification.
[13] The complainants all say that, but for the defendant’s deceit or fraud, they would never have consented to the sexual acts which he is now charged with.
[14] For completeness, I note that none of the charges in which a discharge is sought relate to sexual acts where payment was made to the complainant. They also do not relate to sexual acts where the defendant said he was inspecting their genitalia for medical reasons to ensure they were medically clear to participate in the sex work proposed. Thus the only factual circumstance which is relevant to the application for discharge is whether consent brought about by fraudulent offers of employment as a sex worker, or earnings from an internet website, which the defendant knew at the time were false, is not true consent for the purpose of establishing the elements of the charges which are the subject of this application.
What have the cases said to date about when fraud vitiates consent?
[15] The Courts have regularly said that consent must be “full, voluntary, free and informed” to be “real, genuine or true” consent.7 However, the law has also traditionally been reluctant to criminalise the use of deception in sexual relationships. As McLachlin J said in R v Cuerrier:8
Deceptions, small and sometimes large, have from time immemorial been the by-product of romance and sexual encounters. They often carry the risk of harm to the deceived party. Thus far in the history of civilisation, these deceptions, however sad, have been left to the domain of song, verse and social censure.
[16] Consequently, consent to sexual activity given on the basis of fraud or deception is still normally regarded as valid and genuine consent. The common law has, however, long accepted that there are two exceptions where deception vitiates consent. These are where the complainant is mistaken as to the identity of the defendant or where the complainant is mistaken as to the nature and quality of the act.
[17] These two exceptions were identified more than a century ago in R v Clarence.9 Mr Clarence had unprotected sex with his wife when he knew he was suffering from gonorrhoea (then a fatal disease). She was unaware that he had this disease and she contracted it as a result of intercourse. Mr Clarence was convicted of an assault on his wife occasioning actual bodily harm, and of unlawfully and maliciously inflicting upon her grievous bodily harm. On appeal, the majority of the Queen’s Bench division held that Mrs Clarence had not been deceived as to the nature of the act, but rather as to the associated risk of contracting gonorrhoea, and thus her consent to sexual intercourse was still considered to be valid.
[18] The Court held:10
The only sorts of fraud which so far destroy the effect of a woman’s consent as to convert a connection consented to, in fact into a rape are frauds as to the
7 R v Cook [1986] 2 NZLR 93 (CA), R v Cox CA213/96, 7 November 1996.
8 R v Cuerrier [1998] 2 SCR 371 (SCC) at [47].
9 R v Clarence (1889) 22 QB 23.
10 At 44.
nature of the act itself, or as to the identity of a person who does the act. There is abundant authority to show that such frauds as these vitiate consent both in the case of rape and in the case of indecent assault. I should myself prefer to say that consent in such cases does not exist at all, because the act consented to, is not the act done.
[19] Fraud as to the identity of the person with whom the complainant consented to have sex with was discussed in R v M.11 In that case the defendant wore a mask and allegedly pretended to be another man whom the complainant was consenting to have sex with. There it was held that knowing the identity of the person to whom consent is given is essential to consent being informed. The absence of consent because of that type of deception is expressly provided for under s 128A(6) which states:
(6) One person does not consent to sexual activity with another person if he or she allows the sexual activity because he or she is mistaken about who the other person is.
[20] The other exception identified in Clarence is where the complainant does not understand that the act that they are consenting to is sexual in nature. In such cases the law deems there to be no consent all at, because the act consented to is not the act done and because in such cases the mistake goes to the “very root of the transaction”.12
[21] Examples of this abound. In R v Flattery, the defendant induced the victim to have sexual intercourse by falsely representing he was carrying out a medical procedure.13 Her consent was held to be invalid and the defendant was convicted of rape. Similarly in R v Williams, a choirmaster had sexual intercourse with a
16 year old on the pretext it was a medical operation to improve her singing.14 The
Court held that, because she had consented thinking that the act was a surgical operation, her consent was ineffective and the appellant was properly convicted of rape.
[22] However, it has traditionally been held that a defendant’s deception about promised consideration for the act does not vitiate consent. In Linekar v R, the
11 R v M (CA808/2013) [2014] NZCA 345.
12 Jennifer Temkin Rape and the Legal Process (2nd ed Oxford University Press, New York, 2002) at
104.
13 R v Flattery (1877) 2 QBD 410.
14 R v Williams [1923] 1 KB 340 (CA).
defendant had sexual intercourse with a prostitute.15 He had agreed to pay her but after intercourse took place he ran off without paying. The English Court of Appeal held that he could not be guilty of rape. It rejected the prosecution’s argument that the woman would not have consented to sexual intercourse had she known that the defendant planned to run away and therefore his deception as to payment should be seen as negating her consent. The Court of Appeal explained that her mistake was not as to the nature of the act (the sexual intercourse was exactly as expected) or as to his identity. It related to what would happen after the sexual intercourse and so she had consented to it.
[23] Linekar reiterated concerns which had been previously expressed by the Criminal Law Revision Committee on Sexual Offences about the difficulty of distinguishing between fraud which is sufficient to vitiate consent and other types of fraud. It cited the Committee’s observation that:16
At one extreme, fraud as to the nature of the act is clearly accepted as rape; while at the other, a man who promises a woman a fur coat in return for sexual intercourse, with no intention of fulfilling his promise, would not generally be regarded as committing rape. It is, however, in our opinion inherently unsatisfactory to leave what constitutes an offence to be determined on the facts of each case. We recommend, therefore, that it should be expressly stated in legislation which cases of consent obtained by fraud amount to rape. Somewhere a line must be drawn.
[24] Subsequent to Linekar, the United Kingdom introduced the Sexual Offences
Act 2003 which defined consent to mean:
Section 74 Consent
For the purpose of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice
…
Section 76 Conclusive presumptions about consent
(1) If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed-
(a) That the complainant did not consent to the relevant act, and
15 Linekar v R [1995] QB 250.
16 Criminal Law Revision Committee on Sexual Offences, 30 December 1983 (Cmnd.9213) at para 2.25.
(b) That the defendant did not believe that the complainant consented to the relevant act
(2) The circumstances are that
(a) The defendant intentionally deceived the complainant as to the nature or purpose of the relevant act,
(b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complaint.
[25] It is noteworthy that the UK Parliament has amended the common law exception regarding the “nature and quality” of the relevant act to the “nature and purpose”. That does suggest a broader approach is intended to be taken to the circumstances where an absence of consent will be conclusively presumed.
[26] That said, the English Court of Appeal in Jheeta v R,17 was careful not to apply s 76 too expansively. In that case the defendant participated in an elaborate ruse over several years to deceive the complainant. He sent text messages ostensibly from the police and third parties, telling her that she must have intercourse with him to avoid being fined by the police and to prevent the defendant from committing suicide.
[27] The Court held that s 76 did not apply because the complainant was not deceived as to the nature of the intercourse (i.e. vaginal penetration with a penis), nor was she deceived as to the purpose. She understood it to be for sexual gratification, which was what it was for. However, the Court did allow the question of whether the complainant had consented in terms of the general provision in s 74,18 to go to the jury to decide, as the defendant had admitted that he knew the complainant had not consented to intercourse on some occasions, but that she submitted only because of the elaborate deception he had perpetrated.
[28] It seems, therefore, that the change in UK law to refer to fraud as to the “purpose” of the relevant act, would not capture the present circumstances where at least one purpose of the sexual acts (as in Jheeta) was for sexual gratification, albeit
17 Jheeta v R [2007] EWCA 1699.
18 Set out above at [25].
tied to the future possibility of earning income from such sexual acts. The scope of s 74 may, however, encompass a wider range of fraud as vitiating consent.
Have other jurisdictions expanded the categories of fraud which vitiates consent to sexual activity in a way which captures the present circumstances?
Canada
[29] In support of the Crown’s argument that the categories of fraud which can vitiate consent should now be recognised more expansively, counsel pointed to legislative changes in Canada and Australia regarding the absence of consent. In Canada s 265(3) of the Canadian Criminal Code now provides:
(3) For the purpose of this section, no consent is obtained where the complainant submits or does not resist by reason of
(a) the application of force… (b) the threat of force
(c) fraud; or
(d) the exercise of authority
[30] The application of this section was considered in R v Cuerrier. In that case Mr Cuerrier tested positive for HIV, and subsequently had sexual relationships with two women, in which he neither disclosed his HIV status nor used condoms.19 Both women later discovered his HIV status, and although neither contracted the virus, they testified that had they known of his HIV status, they would not have consented. Cuerrier was charged with two counts of aggravated assault based on his having endangered the lives of the complaints by exposing them to the risk of HIV infection through unprotected sexual intercourse. The argument before the Supreme Court centred on whether the sexual activity had taken place without the consent of the complainants. The Crown contended that their consent was not legally effective because it was obtained by fraud.
[31] The Canadian Supreme Court interpreted the definition of “fraud” in light of the legislative history of their criminal code. The old offence of ‘rape’ and ‘indecent
19 R v Cuerrier, above n 8.
assault’ was redefined as ‘sexual assault’, and a new consent provision, applying to all types of assault, was adopted.
[32] Prior to 1983, the rape provision stated:
A male commits rape when he has sexual intercourse with a female person… with her consent if the consent is obtained by false and fraudulent representation as to the nature and quality of the act.
[33] In contrast, the current provision in s 265(3) does not limit the scope of the fraud to fraud about the “nature and quality of the act”. As a consequence the majority decision of the Court, delivered by Cory J, held that the change in wording provided evidence of Parliament’s intention to move away from the rigidity of the common law requirement that fraud must relate to the nature and quality of the act. His Honour reasoned:20
True consent cannot be given if there has not been a disclosure by the accused of his HIV positive status. A consent that is not based upon knowledge of the significant relevant factors is not a valid consent.
[34] While agreeing with the majority about the overall result in the case, McLachlin J had reservations as to whether the Canadian Parliament had intended to radically broaden the crime of assault through the omission of the “nature and quality” wording. Her Honour recognised that this was a complete departure from the established common law position, effectively amounting to a new crime, rather than incremental development of the law.21 Her Honour noted that the majority’s proposed extension of the law was both sweeping and unprecedented. In a passage relied upon by the New Zealand Court of Appeal in KSB v ACC, McLachlin J reasoned:22
Where the person represents that he or she is disease-free, and consent is given on the basis, deception on that matter goes to the very act of assault. The complainant does not consent to the transmission of disease fluid into his or her body. This deception in a very real sense goes to the nature of the sexual act, changing it from an act that has certain natural consequences (whether pleasure, pain or pregnancy), to a potential sentence of disease or death. It differs fundamentally as to the consideration that will be given for consent, like marriage, money or a fur coat, in that it relates to the physical act itself. It differs, moreover, in a profoundly serious way that merits the criminal sanction. (emphasis added)
20 At [127].
21 At [65]-[66].
22 At [72], cited with approval by Court of Appeal in KSB v ACC [2012] NZCA 82 at [73].
[35] Importantly, even the majority view did not open the door to all types of fraud vitiating consent. Instead, the complainant’s consent was found to be vitiated by fraud under s 265 because the defendant’s non-disclosure was dishonest and put the complainant at a significant risk of suffering serious bodily harm. While that view was not shared by L’Heureux-Dubé J, who considered that an interpretation that limits fraud which vitiates consent to those situations was unjustifiably restrictive, the judgment demonstrates the reluctance of the courts to accept that any form of fraud or deception should be considered to vitiate consent.
Australia
[36] In Australia, the Courts have also traditionally distinguished consent obtained by fraud as to the identity of the defendant or as to the nature and quality of the act, from consent obtained by fraud which has induced the complainant to knowingly engage in sex with the defendant.
[37] In Papadimitropolos v R, the victim had sexual relations with a man she believed she had just married.23 Unknown to her, but appreciated by the defendant, the marriage ceremony they had undertaken was not a valid marriage ceremony. The High Court of Australia held that this fraud did not vitiate her consent to sexual intercourse, even though it was of huge importance to her whether they were married. The Court held:24
… carnal knowledge is the physical act of penetration; it is the consent to that which is in question; such a consent demands a perception as to what is about to take place, as to the identity of the man and the character of what he is doing. But once the consent is comprehending and actual the inducing causes cannot destroy its reality and leave the man guilty of rape.
[38] As in the present circumstances, the complainant knew what has about to take place, the identity of the defendant and the nature and quality of what the defendant was about to do. The deception did not, therefore, vitiate her consent to sexual
intercourse.
23 Papadimitropoulos v R (1957) 98 CLR 249.
24 At 261.
[39] However, since that decision, all states in Australia have introduced more liberal legislative provisions as to when fraud vitiated consent to ensure that the type of fraud perpetrated in Papadimitropolos would vitiate consent. The Crown says these legislative changes signal a relaxation of the traditional approach to this issue. By way of example, the Crown referred me to s 61HA Crimes Act 1900 (NSW) and s 67
Crimes Act 1900 (ACT). However, s 61HA does not appear to materially alter the conventional approach as to when fraud vitiates consent. The relevant part of s 61HA provides:
…
(5) A person who consents to sexual intercourse with another person:
(a) under a mistake and belief as to the identity of the other person, or
(b) under a mistaken belief that the other person is married to that person, or
(c) under a mistaken belief that the sexual intercourse is for health or hygienic purposes (or under any other mistaken belief about the nature of the act induced by fraudulent means), does not consent to the sexual intercourse.
[40] While subsection 5(b) captures the Papadimitropolos circumstances, s 5(a) and s 5(c) appears to reiterate the conventional position that deception as to the identity of the other person or as to nature of the act (such as representing it is for health or hygienic purposes), can vitiate consent. It does not capture the circumstances where a complainant consents to a sexual act, but where that consent is induced by fraudulent promises or understandings.
[41] In contrast, s 67 of the Australian Capital Territory Crimes Act 1900 does appear to allow a wider range of factors as vitiating consent. It provides:
(1) … the consent of a person to sexual intercourse with another person, or to the committing of an act of indecency by or with another person, is negated if that consent is caused by-
…
(f) by a mistake and belief as to the identity of that other person;
or
(g) by a fraudulent misrepresentation of any fact made by the other person, or by a third person to the knowledge of the other person;
…
[42] Similarly in Western Australia, that state abolished the offence of rape in 1992 and replaced it with a new offence of “sexual penetration without consent” under s
325 of the Criminal Code Act 1913. The statutory definition of consent applicable to s 325 is set out in s 319(2)(a) of the Code which states: “‘consent’ means a consent freely and voluntarily given and, without in any way affecting the meaning attributable to those words, a consent is not freely and voluntary given if it is obtained by force, threat, intimidation, deceit, or any fraudulent means”.
[43] At first glance, this suggests that any deceit or subterfuge that induces a person to give a consent that he or she would not otherwise have given is enough to destroy that consent and render the defendant guilty of an offence under s 325. That view is reiterated in commentary on the legislation with the Laws of Australia stating that:25
In the Australian Capital Territory, Tasmania and Western Australia, the type of fraud that will vitiate consent would appear to have been extended by statute, but whether the provisions will be so interpreted has not been subject of judicial decision.
[44] Furthermore, in discussing whether any fraud that procures consent may vitiate consent under the legislation in those three states, the commentary goes on to say:26
In the Australian Capital Territory, the Crimes Act 1900 (ACT) provides that consent is negated if that consent is caused by “a fraudulent misrepresentation of any fact made by the other person, or by a third person to the knowledge of the other person”. This means that fraud is not confined to mere deception as to the nature of the act. If the definition of consent in the Criminal Code (Tas) and the Criminal Code (WA) is exhaustive, so precluding resort to the common law decision of Papadimitropoulos v R in relation to fraud and consent, then consent will be vitiated provided it was procured by any kind of fraud.
[45] The commentary cites Howard’s Criminal Law for criticisms of the amendments in Australian Capital Territory and Western Australia.27 In that text, the
25 M Bagaric (ed), The Laws of Australia (online looseleaf ed, Thomson Reuters) at TLA [10.3.240].
26 At [10.3.270].
27 B Fisse (ed), Howard’s Criminal Law (5th ed, Law Book Co, 1990) at 182.
author argues that these provisions are inconsistent with the traditional view that the seriousness of rape lies not in the use of deceit or fraud, but in the physical abuse of someone who is unable to resist violent sexual attack or who is helpless by reason of incapacity to understand. The author also acknowledges the Pandora’s box of problems in extending the provision of when fraud vitiates consent. He says:
The possibilities of misrepresentation are endless, ranging from on spouse’s lie that he has obtained a job or that he is the benefactor of the delivered flowers, to assurance about possession of sexual dexterity and declaration of love or respect, to proffering a prostitute a worthless cheque.
[46] The commentary goes on to express doubt about whether the legislation will be applied liberally saying:28
In Western Australia the matter has not been considered in a reported decision. However, it is arguable that if the facts of R v Linekar were to arise in Western Australia, the defendant conduct… would fall within the terminology in s
319(2)(a) (“deceit, or any fraudulent means”) of the Criminal Code (WA). The conclusion has been drawn by one author that the focus should still be on the
physical act of penetration because inducing causes can never destroy the
reality of a woman’s consent. If this restrictive interpretation is adopted then the type of fraud that would vitiate consent has not been extended by statute with the traditional but restrictive view expressed in Papadimitropoulos.29
[47] Therefore, despite the broad legislative wording of the amended Acts, there appears to be a hesitancy by academics to advocate for a broad application of the provisions, and a lack of decided cases which have extended the circumstances in which fraud vitiates consent.
New Zealand
[48] As noted by the Court of Appeal in KSB v ACC,30 when the Crimes Act 1961 was enacted, New Zealand’s Parliament considered the issues of fraud raised in Papadimitropolos, but chose not to extend the categories where fraud or deception vitiated consent. In his report on the Crimes Bill 1957, Sir George Finlay noted:
…
It might be thought there is a gap in the definition of rape as contained in the clause in the light of the judgment in the Australian case of
28 Ibid.
29 G Syrota “Rape: When Does Fraud Vitiate Consent?” (1995) 25 UWAL Rev 334 at 342.
30 KSB v ACC, above n 22, at [58].
[Papadimitropoulos]. There, the consent of the woman was obtained by inducing her to believe that an entirely fictitious marriage ceremony was a valid marriage. Misled by her belief in the validity of the marriage, the woman consented to sexual intercourse and her consent was held to preclude the possibility of her so-called husband being convicted of rape. Upon consideration, it was thought better not to include such circumstances in the definition of rape and so a special clause has been introduced making any such proceeding a separate offence.
[49] Those traditional fraud exceptions as to the identity of the person, and as to the nature and quality of the act, have been codified in the extended definition of consent introduced in 1986 as s 128A of the Crimes Act.31 Section 128A lists various circumstances that do not amount to consent in relation to sexual activity but also makes it clear that the list is non-exhaustive by including, at s 12A(8), the proviso that “this section does not limit the circumstances in which a person does not consent to sexual activity”.
[50] As already noted, the Crown invites me to include fraud of the nature perpetrated in this case under this further non-exhaustive head. In advancing this argument the Crown points out that the Court of Appeal, in KSB v ACC, considered that s 128A(8) should be read expansively. In that case, the Court adopted the Canadian approach in Cuerrier and accepted that the non-disclosure of positive HIV status vitiates consent.
[51] In KSB v ACC, the appellant sought cover for mental injury after learning that the man with whom she had a four month sexual relationship had not disclosed to her that he was HIV positive.32 The two had engaged in unprotected sexual intercourse during their relationship, and the appellant later became “highly distressed” and developed Post-Traumatic Stress Disorder upon learning of her former partner’s HIV status. The man was convicted of criminal nuisance for failing to disclose his HIV positive status prior to engaging in unprotected sexual intercourse.
[52] However, the Court did not need to rely on s 128A(8) to achieve the result reached in this case. Rather, the Court came to the conclusion that having unprotected
sexual intercourse with a person who has not disclosed his or her HIV status, changes
31 At ss 128A(6) and (7).
32 KSB v ACC, above n 22.
the ‘nature and quality’ of the act because of the associated risk of serious harm. The Court was highly persuaded by the concurring judgment of McLachlin and Gonthier JJ in Cuerrier. It considered that the amendment from “nature and quality” of the relevant act to “fraud” in the Canadian Criminal Code was ‘relevant’ but ‘not determinative’ of the Canadian Supreme Court’s decision, and, in deciding the case before it, the Court held that an expansive approach should be taken to the ‘nature and quality’ of the act under s 128A(7), noting that to do so would also be consistent with the expansion of s 128A of the Crimes Act in 1986,33 to make the list of matters non exhaustive.
[53] The Court reasoned that the non-disclosure of the defendant’s HIV status gave rise to a mistake by the complainant as to the ‘nature and quality’ of the act, although it acknowledged, in the alternative, that the case could fall within the general provision of s 128A(8), where there is a need for consent to be ‘informed’.
[54] However, the Court was careful not to reach any broader conclusions on when fraud vitiates consent noting “[we] do not have to go beyond the present factual situation, which involves unprotected sexual intercourse and non-disclosure of HIV status”.34
[55] The Court also acknowledged the concerns that had been expressed about the difficulty of determining where the boundaries should be drawn before sexual acts are criminalised through a failure to disclose certain facts.35 It seems it was prepared to accept non-disclosure of HIV as vitiating consent because of the significant risk of serious bodily harm that the non-disclosure created, which had not been consented to. It remains to be seen, therefore, whether the law of New Zealand would entertain other
categories of deception as vitiating consent.
33 Crimes Amendment Act 2005, s 7.
34 KSB v ACC, above n 22, at [92].
35 At [93]-[96].
Should fraud vitiate consent, even when the person understands the nature and quality of the sexual act?
[56] As the above discussion illustrates, a decision which acknowledges that fraud or deception as to the future benefits to be gained from engaging in sexual acts as potentially vitiating consent, would represent a quantum leap in the law of New Zealand.
[57] In the present case, each of the complainants knew that they were engaging in a sexual act and, even when it was designated as “training”, it was still clear that it had the immediate purpose of achieving sexual gratification for the defendant. One complainant says “he looked like he was getting pleasure out of our interactions and it was on a personal level not on a training or professional level”.
[58] Their primary complaint is that they only consented to sexual acts, which were otherwise repugnant to them, because of the promise of lucrative employment or other financial benefits. For example, one complainant says “I wasn’t comfortable with the sexual acts with Nigel or anyone else, I did it for the prospects of money”, and another says “I told him that it felt wrong and it was odd but he coerced me to continue the training with promises of money”. As soon as they worked out such benefits were unlikely to be forthcoming, they ceased the activity.
[59] The circumstances are, in my view, comparable to those in Linekar, when it was held that the reality of consent to the sexual act was not destroyed by the defendant’s false pretence as to his intention to pay, and so he was not guilty of rape. If consent could be vitiated by deception as to the future benefits to be had from participation in sexual activity that would represent a significant change to the law on consent to sexual activity.
[60] However, there is academic commentary which would support a more liberal approach to consent, such as that expressed in L’Heureux-Dubé J’s judgment in Cuerrier. In a thought-provoking article,36 Jonathon Herring argued that the law should hold that there is no consent in any case where people consent to sexual activity
while mistaken as to a fact about which, had they known the truth, they would not have consented. That would have seen the outcome in cases such as Linekar, involving the unpaid prostitute, and Papadimitropolos, involving the invalid marriage ceremony, being decided differently, as the fraud or deception would have vitiated consent.
[61] Herring’s view is that:37
Deceit, as much as forcing threats, can “negate consent”. Deceit, like violence, manipulates people into acting against their will. Like threats deceit restricts the options available to another. It does this by making the other unaware of the options the other has available. For example, a man who deceives his partner as to his identity prevents a partner making a decision about whether to have sex with him. Restricting the information on which a person makes a choice can be as inhibiting of a free choice as making an option unattractive through a threat. Indeed in one sense a deception can be regarded as worse than a threat in that the deception uses the victim’s own decision- making powers against herself: rendering her an instrument of harm against herself.
[62] He also suggests that s 76 of the Sexual Offences Act 2003, which states that a deception as to the “purpose” of the relevant act can negate consent, should encompass a wider range of deception than the traditional deception as to the nature of the act. Thus in Papadimitropolos, the purpose of sexual intercourse was to consummate a marriage and there was deception as to this purpose. Similarly, in Linekar, the purpose of the act was for the victim to make money and there was deceit by the defendant on this count.
[63] In any event, he argues that the s 74 definition of consent in the UK legislation, which focuses on a consent involving agreement by choice, enables the court to consider not just whether the complainant said yes or no to sexual intercourse, but to consider the broader view of how the parties understood their sexual activity, and whether there was a mistake over an issue which was an essential pre-requisite to consent.
[64] However, he acknowledges the objections to broadening the circumstances in which consent is vitiated. These include:
(a) the use of deception to obtain sex is so widespread that it would be inappropriate to criminalise such behaviour;
(b)there are enormous difficulties in proving that emotional representations are untrue;
(c) that if all forms of “sexual fraud” were included within the offence of rape, it would “weaken the stigma that properly attaches to rape”;
(d)it would place too greater burden on individuals requiring them to tell their partner all issues from the past which they think might affect their partner’s consent to sexual relationships; and
(e) if deception is to only be to “material matters”, how does one decide what is “material”.
[65] His response to these objections is to say that:38
It should no longer be enough just to ask did the complainant say “yes” in relation to the proposed sexual activity. Now the values that should underpin our sexual offences law are those of mutual respect, reciprocity, connection and honesty. If we respect sexual integrity and the importance of being able to choose with whom to have sexual partners, then the choice must be one that is free from coercion and fraud.
[66] There is much force in those sentiments. However, that would represent a sea change in our criminal law and one which is so sweeping that I consider it would require engagement of the New Zealand public, through the legislative process, before it is implemented. In particular, I consider there will be difficulty in delineating the kind of fraud or deception which would justify attracting the stigma of a conviction for rape or sexual violation, from deceptions which, while not to be condoned, do not, in society’s eyes warrant such sanctions.
[67] My concerns in this regard were reinforced by the fact, that counsel in the present case were unable to assist me on describing the threshold that needed to be
reached before a deception which was used to obtain consent to sexual intercourse or sexual activity that would warrant a criminal conviction on the offences charged.
[68] In Cuerrier, there was an attempt by the majority to articulate an appropriate threshold. In that case they held that the threshold was determined by whether the deception exposed the complainant to a risk of serious harm. That threshold was satisfied when the defendant had unprotected sex with partners without disclosing his HIV status.
[69] In the present circumstances, the harm to the complainants appears to emanate primarily from the sexual acts themselves. Most of the complainants reported that they felt sickened and ashamed of what they had done. They had participated in homosexual activity when they were heterosexual men, they did the acts with a person they found physically repugnant, and they consented to the acts because of their personal circumstances, including a need for money. As one said, he “felt very gross, disgusted, disappointed, unhappy and could not believe what had just happened”.
[70] When they found that the financial benefits were not going to eventuate, and they had been tricked by the defendant, that added to the indignity they felt about having participated in these acts. It clearly augmented the harm many of the complainants suffered. Some complainants reported feeling “depressed” or “bummed out” after they realised they had been deceived. Others report turning to drink or drugs after their experience with the defendant. Thus, it is clear they suffered some harm from their experiences with the defendant, including his deceit, but it is not a case where, as in Cuerrier, the deceit exposed them to a harm they would not otherwise have anticipated could arise from the activity.
[71] For these reasons it is difficult to say this type of fraud can be delineated from lesser types of fraud in a way that would enable it to be recognised as a further category which could vitiate consent.
Conclusion
[72] As morally repellent as the defendant’s actions appear in respect of each of the incidents that is the subject of these charges, I cannot conclude that there was a fraud
in any of the traditional ways that has been held to vitiate consent. In each case, the complainant consented to the act in question, knew the identity of the other participant, and knew the risks which emanated from the physical act itself. Their consent was not, therefore, vitiated under s 128A(7).
[73] Although s 128A(8) recognises that the circumstances where consent is not present are not closed, extending the circumstances to cover fraud of this type creates problems such as those identified in the Herring article. Other jurisdictions have been reluctant to extend the circumstances where deception or fraud vitiates consent too widely despite increased scope in their legislative provisions to do so.
[74] I consider that to extend the circumstances where consent is vitiated to cover the circumstances in this case is a matter to be left to Parliament. There can then be full and informed debate about when New Zealand society is prepared to criminalise a defendant’s deception or fraud which induces the complainant to consent to sexual activity with the defendant. This could, of course, include creating alternative offences for such acts, as has been done in other jurisdictions.
[75] As a consequence, I do not consider that the fraud perpetrated in respect of the identified charges involving the six complainants is of a type which the law recognises as vitiating consent. I accept the defendant’s submissions that the Crown cannot show a lack of consent to the acts between the defendant and the complainants and, as a matter of law, a properly directed jury could not reasonably convict the defendant on these charges.
[76] Accordingly, the charges listed in the schedule to this decision are dismissed under s 147 of the Criminal Procedure Act 2011.
Solicitors:
C & M Legal, New Plymouth
Parker and Marriner Lawyers, New Plymouth
Complainant A Charge 34 Sexual violation by unlawful sexual connection: the
defendant performing oral sex on the complainant.
Charge 37 Sexual violation by unlawful sexual connection: the
defendant performing oral sex on the complainant.
Charge 40 Sexual violation by unlawful sexual connection: the
defendant performing oral sex on the complainant.
Complainant B Charge 41 Making an intimate visual recording: the defendant taking
photographs of the complainant’s genitals.
Charge 42 Making an intimate visual recording: the defendant video
recording the complainant masturbating.
Complainant C Charge 50 Making an intimate visual recording: the defendant taking
photographs of the complainant’s genitals.
Charge 51 Making an intimate visual recording: the defendant video
recording the complainant masturbating.
Complainant D Charge 55 Making an intimate visual recording: the defendant taking
photographs of the complainant’s genitals.
Charge 56 Making an intimate visual recording: the defendant video
recording the complainant masturbating.
Complainant E Charge 67 Making an intimate visual recording: the defendant taking
photographs of the complainant’s genitals.
Charge 68 Making an intimate visual recording: the defendant video
recording the complainant masturbating.
Charge 69 Sexual violation by unlawful sexual connection: the
defendant performing oral sex on the complainant.
Charge 70 Sexual violation by unlawful sexual connection: the
complainant performing oral sex on the defendant.
Charge 71 Sexual violation by unlawful sexual connection: the
defendant performing oral sex on the complainant.
Charge 72 Sexual violation by unlawful sexual connection: the
complainant performing oral sex on the defendant.
Complainant F Charge 73 Making an intimate visual recording: the defendant taking
photographs of the complainant’s genitals.
Charge 74 Indecent assault: the defendant masturbating the
complainant.
Charge 75 Sexual violation by unlawful sexual connection: the
defendant performing oral sex on the complainant.
Charge 79 Making an intimate visual Recording: the defendant video
recording the complainant masturbating.
Charge 80 Indecent assault: a representative charge of the defendant
masturbating the complainant.
Charge 81 Sexual violation by unlawful sexual connection: a
representative charge of the defendant performing oral sex on the complainant.
Charge 82 Sexual violation by unlawful sexual connection: a
representative charge of the defendant performing anal sex on the complainant.
Charge 85 Indecent assault: a representative charge of the defendant
masturbating the complainant.
Charge 86 Sexual violation by unlawful sexual connection: a
representative charge of the defendant performing oral sex on the complainant.
2
0