Let’s talk about sex…

Although it’s been eclipsed a little by undercover work of a different nature over the last couple of days, there has been a lot of talk in the news recently about undercover officers who infiltrate certain potentially criminal groups.

The focus has been particularly placed on Mark Kennedy, who was under cover for seven years as an environmental activist, complete with long hair, goatee and earrings. So far, so not very James Bond…

One similarity though might be that Mr Kennedy, during his seven years undercover, slept with some of the female activists he met, without revealing his true identity. This has led to angry reactions from activists, and to women protesting outside Scotland Yard, “to express solidarity with all the women who have been exploited by men they thought they could trust.”
There has also been calls to clarify what the Metropolitan Police’s policy was regarding these actions. It’s not clear yet what the policy is or indeed if there is any but it seems that although there is no explicit instruction to have or not have sex, it is seen as a fairly inevitable and sometimes necessary by product of the mission carried out.


Some have even gone further and argued that it could be a criminal act, violating the women’s rights. The issue here is one of consent, as the women claim that, had they known Mark Kennedy was, in fact, Mark Kennedy (ie a cop), they would not have consented to having sex with him. So the key issue here is about consent and deception and whether the woman’s consent was valid despite the misrepresentation. What does the law say about this particular situation then?

Let’s talk about the law…

The law on sexual offences is contained in the Sexual Offences Act 2003, which was passed in, well, 2003… It deals with rape but also sexual offences on children and vulnerable people as well as other sexual acts (for example showing pornography to a child).

The act

Here, because we (fortunately, I guess…) don’t have the details of what happened, we will assume that it was sexual intercourse, which could therefore be a case of rape. If it was not a case of penetration, then it could be another offence with the self explanatory name of ‘causing sexual activity without consent’.

Section 1 of the Sexual Offences Act 2003 says that rape is any act of sexual penetration by the penis of a man A, without consent from the other person, B. So the person accused of rape will always be a man but the victim can be either a woman or a man. It must also be proved that A did not reasonably believe that B consented to the act.

This last requirement was added so no-one could claim, for example, that they really did think that a woman saying ‘no’ actually meant ‘yes’, because it’s not a reasonable belief. Until the act, the case law said that if a man did truly believe that “no meant yes”, it could be a defence to rape (it was decided in a 1976 case which is a particularly horrible example of human behaviour…). Thankfully this is not the case anymore, the belief has to be a reasonable one, for example if the victim B was forced by someone else and A was not aware of this.

Consent

So, once the act is established, we need to figure out what the legal position is regarding consent. According to the law, “a person consents if he agrees by choice, and has the freedom and capacity to make that choice.” It’s not specified what freedom and capacity to make that choice means here, so it will be up to the judge to interpret it. It will be for the prosecution to prove ‘beyond reasonable doubt’ that there was no consent in the situation. This is one of the hardest things to prove in rape and sexual offences cases because there is often no evidence at all about it, just one person’s voice against another’s. This is because most  cases of rape don’t happen with violence or are reported too late so there’s no physical evidence…

In the case we’re interested in, the misrepresentation by Mr Kennedy probably doesn’t mean that the women he had sex with lacked the freedom and capacity to make that choice as such and so it will be difficult to prove that there was no consent, according to the definition by the act.

But because it’s so hard to prove, the act gives the prosecution tools to make it easier to prove that there was no consent in certain cases. For some cases, for example if there was violence or the victim was asleep during the act, it will reverse who has to prove the question of consent and so it’ll be for the person accused and his lawyer to prove that despite the slightly dodgy circumstances, the victim did in fact consent. It might seem strange that in those situations the accused can still prove the victim consented but it was intended to cover cases which might involved sadomasochism or other practices which are agreed by both persons…

Another tool is much more efficient in helping to prove the case: if certain circumstances are proved, the prosecution will not need to prove that there was no consent, it’ll be automatically assumed because of the situation. The circumstances are:

  • that the accused lied and the victim was mistaken about the nature of the act (for example if a music teacher told a student that having sex was actually an exercise to improve her singing voice – a real case…)
  • that the accused pretended to be another person, a person who was known to the victim. (for example if the accused pretended to be the victim’s boyfriend. It doesn’t work if the accused pretended to be Brad Pitt and the victim believed him!)

So, are those circumstances applicable here?

  • Well, the deception about the nature of the act generally means that the victim thought the act was not sexual but for example medical or, indeed, musical. If a doctor performed an unnecessary medical examination for his sexual pleasure then there wouldn’t be any consent from the patient… But here the women were aware, it seems, that the act was sexual. Although maybe it could be argued that the act wasn’t actually sexual but ‘information gathering’, and so the women didn’t consent to that particular act… Unlikely, but you never know!
  • As for the deception about the person, it would normally have to be a totally different person, which is not the case here. One could argue though that it might not have been a different person but it was a person using a different identity, ie the women consented to sex with Mark the activist but not with Mark the cop…

Let’s talk some more?

This particular issue hasn’t been discussed by academics (there is actually a surprisingly large number of middle aged law professors whose job is to read, think and write about, basically, sex, and all for the good of the law…) but a similar one has about consent.

One interesting opinion is that the law should go further to protect women from unsuspected love rats and, indeed, undercover agents. According to this suggestion, if a man lied to a woman about something that was very important to her in order to have sex, that should be enough to say there was no consent and therefore, rape. For example, if a man lies about wanting to marry his girlfriend in order to get her to sleep with him and she would not have agreed to do it if she knew it was not true, it could be a case of rape.

The justification is that women might feel just as violated by such lies and need protection from unscrupulous men, who would hopefully think twice about lying to get laid… It is a controversial proposition and it’s unlikely to be made into law by Parliament any time soon but it does show some interesting questions about the criminal law and morality: most of us would agree that lying in order to get someone to sleep with you is wrong but does it mean that it should be criminal?

In the case of the undercover policemen, how far does the public good argument go to justify the lies an agent has to make? Does it cover sexual relations with unwitting partners? And even if it doesn’t, should it be a criminal offence?

Many questions which could only be definitely decided if the case goes to court, but in the meantime a parting word of wisdom from another legal blogger: in this situation, “one lesson should already be being learned – a man, or woman in uniform is a much safer bet.”

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