M Gibson, 'Deceptive Sexual Relations: A Theory of Criminal Culpability' (2020) 40 OJLS 82 Executive Summary - Common law jurisdictions have principal sexual offences (e.g. rape, sexual assault, etc ... )-> these criminalise (non-)penetrative deceptive sexual relations -> Gibson challenges this practice via 2 linked reasons 1. Criminalisaiton 2. Fair labelling 1. Deceptive sexual relations represent different wrongs but currently proscription suggest they are equally harmful to V's right to sexual autonomy, expect for cases where V is unaware of the sexual nature of the act 2. - > Need separate SOs for penetrative and non-penetrative deceptive sexual relation -> better signals the distinct wrongdoing inherent in sexual relations -> has an impact on D and other parties when it is time for conviction. The principal sexual offences cover a wide range of cases for deceptions (i.e. D induced 'consent' to sexual relations) - Penile penetration -> rape - V is unaware of the intercourse occuring - R v Flattery - People v Minkowski - R v Williams - V is aware of the intercourse occuring - Impersonation - R v GC - R v Elbekkay - D and V share the same purpose of the intercourse (i.e. sexual gratification) but D deceives V about the physical aspect of the intercourse - R (F) v DPP: Intention not to ejaculate - R v Mabior: risk of disease transmission - Use of condom - Assange v Swedish Prosecution Authority - R v Hutchinson NSCA 3 - D deceives V about the purpose of the intercourse - State of Israel v Mehadakar 522/07 Nazareth District Court (2007) 38: D's age - Papadimitropoulos v R [1957] HCA 74: Marital status - R v Jheeta [2007] EWCA Crim 1699: Mental state - CrimA 5734/10 Kashur v State of Israel [2012] (Isr): Ethnic/religious background - D's purpose is the subject of the deception - 4 Boro v Superior Court 210 Cal Rptr 122 (1985): D untruthfully informs V that V has contracted a disease and that intercourse with D is a valid medical cure. - Non penile penetration cases -> the others SOs
- D deceives V about the purpose of the activity occurring - Bogus non-sexual reasons -> conceal D's real purpose of sexual gratification -> V is unaware the touching is sexual - R v Piper - V is aware the touching is sexual - R v Green: indecent assault - D deceives V into thinking the act is for mutual sexual gratification but it is actually for an alternative purpose - R v Devonald: causing someone to engage in sexual activity without consent - 'Gender fraud' - E.g. D identifies and presents as transgender -> V later discovers D's transgender status - Non-penile penetration -> - Assault by penetration - R v McNally Rape - - State of Colorado v Clark (Sean O'Neill) No 1994 CR003290 (Colo Dist Ct, 16 February 1996) - Questions about this arrangement 1. How accurately do the offences the harmfulness/wrongfulness of the sexual relationships in question? 2.