Full, free and informed: Assessing the Scope of Conditional Consent

By Ben Goh

Trigger Warning: contains discussions of sexual assault.

This April, the Wellington District Court made a landmark foray into the practice of non-consensual condom removal or “stealthing.” After soliciting a sex worker, Jessie Campos was convicted of rape after removing protection without the woman’s consent.[1] In sentencing him to three years and nine months’ imprisonment, the court made the first denunciation of such an offence in New Zealand. The decision represents a long-awaited extension of the law and an affirmation that these practices undermine an individual’s dignity, sexual autonomy and security. While a welcome step in the right direction, questions still remain as to what exact conduct may displace consent and how to provide sufficient clarity and certainty for victims seeking legal recourse.

International authority

Although the first of its kind in New Zealand, this ruling is not without precedent. It has been established that consent may be displaced or revoked during sexual activity. Stealthing has been described as an act that is “rape-adjacent” and tantamount to rape itself.[2] International jurisprudence, albeit not binding, has been influential in informing the development of New Zealand law on this point. Indeed, the highly persuasive jurisdictions of Canada and the United Kingdom have found in favour of victims in cases of similar facts in R v Hutchinson[3] and Assange v Swedish Prosecution Authority . In the latter case, the High Court held that consent may be contingent on the wearing of protection and can be vitiated where that condition is violated.[4] There, the defendant's failure to use a condom was held to be a material deception, the effect of which was to alter the nature and act of the sexual activity. It should come as little surprise then, that the present case was similarly decided in New Zealand, where consent may be set aside where there is a mistake as to the nature or quality of a sexual act.[5]

Implications for consent

There is much to celebrate in this decision, however it is easy to see how this case may have been decided otherwise had the facts been a little different. More broadly, it also raises the issue of conditional consent, that is, what factors may vitiate ostensible consent to sex. What considerations are sufficiently reprehensible to warrant the criminal sanction of rape? At what point should we draw the proverbial line in the sand? Would the case have been decided as such if the offender had complied with the requirement to wear a condom, but did not pay as he was obliged to? Or, would the complainant only be remedied by way of fraud or breach of contract. The UK case of R v Linekar would lead us to believe the latter.[6] What if a person fails to disclose their sexually transmitted infection (STI) status? Or in cases of “catfishing” where the offender misleads someone as to their gender? Would the victim be able to say their consent had been vitiated? Here, the answer would appear to be yes.[8] However, the law on STD disclosure is far from settled and the matter of a mistake as to gender has yet to be litigated in New Zealand. Where some issues are more contentious and others have yet to arise or even be foreseen, the question is how the law should best accommodate them in a way that coherently protects the interests of the victims.

The position of consent in New Zealand

It was said in R v Cook that consent should be “full, voluntary, free and informed.”[9] However, the common law has traditionally been hesitant to attach criminality to deception in sexual relationships. The law also allows people to assent to risks implicit in sexual activities such as pregnancy (considered at law to be actual bodily harm). The general precept can thus be said to be that of caveat amator, or “lover beware” where loss will lie where it falls.[10] In the Canadian case of R v Cuerrier, it was stated that “deceptions, small and sometimes large, have from time immemorial been the by-product of romance and sexual encounters.”[11] What is clear, is that certain representations, such as those relating to financial status, cannot spoil consent.[12] However, what is sufficient has proven to be an elusive question.

In New Zealand, consent to sexual activities is only defined insofar as to what it is not. The Crimes Act 1961 (non-exhaustively) includes two relevant exceptions where consent may not necessarily persist.[13] The first is where a person is mistaken as to who the other person is, such as in cases of spousal impersonation.[14] The other is the aforementioned circumstance where one is labouring under a mistake as to the nature and quality of a sexual act. These exceptions are restrictively applied by the courts. The former can only be relied upon if there is a mistake as to the actual identity of the other person. In R v Papadimitropoulos, where consent was obtained by a fictitious marriage ceremony, it was held that mistakes as to the status of a person were not contemplated by the provision.[15]

The second circumstance of mistaken nature or quality requires a more exacting assessment of the law. For well over a century, the courts have held that this is only of relevance where the victim is subject to a misunderstanding of the act's sexual character.[16] This arises when a person believes an act to be innocuous when it is, in fact, sexual. The prototypical example is where a doctor performs a sexual act under the guise of a medical procedure.[17] It then follows why considerations such as wealth or marital status are not captured by the provision. By the same token, it has long been established that a non-disclosure of HIV cannot vitiate consent to sex.[18] Instead, a complainant may seek to rely on grievous bodily harm and reckless endangerment.[19] In R v Mwai, the non-disclosure of HIV was characterised as a breach of duty amounting to criminal nuisance under section 145 of the Crimes Act.

This position then saw a radical departure with the advent of KSB v Accident Compensation Corporation (ACC). There, in holding that a non-disclosure of HIV was sufficient to constitute rape, the majority in the Court of Appeal approved the dicta of the Canadian Supreme Court in R v Cuerrier[20] that the deception went to the nature of the sexual act and differed from other statuses “in a profoundly serious way that merits the criminal sanction.”[21]

Where to next? Reconciling common law and statute

In an area of such high public interest, any legal regime which would address conditional consent must be sufficiently robust and comprehensive.  The question remains as to whether the courts or Parliament are best positioned to address such issues. As an area of law that remains contentious, the problem of STI status is an apt example of the concerns that may arise if such inquiries were left solely to the devices of the judiciary. Ultimately, any undertaking must involve sufficient input from both branches.

On its face, one may perceive the court in KSB to have reached the ‘correct’ decision in condemning what was assuredly objectionable conduct. However, it arguably did so in an unprincipled way that leaves New Zealand jurisprudence largely uncertain and consistent only with Canadian authority. In a previous case on nearly identical facts, Randerson J in CLM v ACC  cautioned against the interpretation of the ACC Act in the purview of criminal matters.[22] That case similarly concerned a compensation claim where rape, rather than other offences, has to be found for the plaintiff to recover anything at all.[23] However, the court in KSB also saw fit to determine the question of consent at criminal law. As such, it remains open as to whether subsequent cases will follow this precedent.

The court in KSB also noted, but did not address, concerns such as the reluctance of the courts to censure conventionally private sexual relationships and the impracticability of imposing a positive legal expectation of disclosure.[24] In CLM, the court had expressed reservations about the difficulties in drawing a line between the non-disclosure of important and trivial facts. Should a failure to disclose family health issues (such as cancer and obesity) to a prospective mother be met with criminal sanction? What about the non-disclosure of less severe STIs? These were some of the questions analogously thought to potentially arise out of unreasoned extensions of the exceptions to consent. While a characterisation of rape may be restorative and morally desirable, caution must be taken especially where there are existing legal protections. In CLM, the development of the common law was said to require Parliamentary oversight to account for public policy factors that the courts may not be best placed to assess.

However, while the courts may show deference to Parliament in areas of such public interest, they must also retain an important role in supplementing statutory gaps to facilitate just outcomes. The legislature cannot be expected to conceive of every eventuality that may arise. In R v Wang, the common law requirement of an imminent threat meant that in killing her husband in his sleep, a woman was not able to avail herself of self-defence under the Crimes Act.[25] Certain circumstances require the adaptability of the common law in achieving incremental reform. Further, the court’s ability to use discretion in interpretation gives enacted laws the flexibility to change with society.

It was in the UK case of R v R that the House of Lords overturned the long-standing common law adage that marriage gives rise to irrevocable sexual consent.[26] In doing so, Lord Keith emphasised the ability of the common law to evolve “in the light of changing social, economic and cultural developments.” It was said in the Court of Appeal that “the duty of the court is to take steps to alter the rule if it can legitimately do so in the light of any relevant Parliamentary enactment.”[27] Accordingly, following the Matrimonial Causes Act, the definition of marriage was deemed in the House of Lords to have changed from a relationship of subservience to a contract of equals.

The decision in R v R  would later be confirmed in statute law by an amendment to the Criminal Justice and Public Order Act. Similarly, even in regard to stealthing, the present case of Campos has already paved the way for a proposed legal amendment in Canberra.[28] It is apparent that though the common law must evolve under the guidance of Parliament, so too does it inform legislation. The relationship is one that is symbiotic. Where the courts afford flexibility, Parliament must provide for clarity. As an area of especially high public interest, both bodies cannot be separated when contemplating such questions of consent and the development of laws in respect of them.

Conclusion

Far from defining the concept of consent, the law in New Zealand can be difficult to traverse and has more to say about what it is not. As societal expectations change, conditional consent is an area that is ripe for re-examination and well-deserving of  further legal protections. But, however much its scope is amended, it is evident that both Parliament and the courts must be involved. Though the case of Campos may represent a long-awaited progression, developments in more nebulous cases should be done carefully. It is for the benefit of certainty that the ambit of consent should not be unduly limited by the unprincipled intrusions of the judiciary. The flexibility of the common law must be tempered by the legislative framework. While the courts have an important supplementary function in interpreting the law and achieving reform, Parliament also has a role to play in assessing the social implications of such changes.

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Featured image source: Ahmed Ashhaadh on Unsplash

[1] Katie Harris “Man sentenced to jail for rape after removing condom without consent” (22 April 2021) NZ Herald <www.nzherald.co.nz>.

[2] Alexandra Brodsky “Rape-Adjacent: Imagining Legal Responses to Nonconsensual Condom removal” (2016).

[3] R v Hutchinson [2014] SCC 19.

[4] Assange v. Swedish Prosecution Authority [2011] EWHC 2849.

[5] Crimes Act 1961, s 128A.

[6] R v Linekar [1995] EWHC 3469.

[7] Zoe Williams “Is removing a condom without permission rape?” (16 Jan 2017) The Guardian <theguardian.com>.

[8] KSB v Accident Compensation Corporation [2012] NZAR 578; R v. McNally [2013] EWCA Crim 1051.

[9] R v Cook [1986] 2 NZLR 93 (CA).

[10] Jonathan Herring “Mistaken Sex” [2005] Crim LR 511 at 511.

[11] R v Cuerrier [1998] 2 SCR 371 at [47] per McLachlin J.

[12] R v McNally [2013] EWCA Crim 1051.

[13] Crimes Act 1961, s 128A.

[14]  R v Dee [1884] 14 LR Ir 468.

[15] R v Papadimitropoulos [1974] HCA 74.

[16] R v Clarence [1889] 22 QBD 23.

[17] R v Flattery [1877] 2 QBD 410.

[18] R v Dica [2004] EWCA Crim 1103.

[19] R v Mwai [1995] 3 NZLR 149.

[20] KSB v Accident Compensation Corporation [2012] NZAR 578.

[21] R v Cuerrier, above n 11 at [72].

[22] CLM v Accident Compensation Corporation (ACC) [2006] 3 NZLR 127.

[23] Accident Compensation Act 2001, s 21.

[24] R v Cuerrier, above n 6 at [93].

[25] R v Wang [1990] 2 NZLR.

[26] R v R [1991] UKHL 12.

[27] R v R [1991] 2 All ER 257.

[28] Brianna Chesser “New Zealand’s first successful ‘stealthing’ prosecution leads the way for law changes in Australia and elsewhere (28 April 2021) The Conversation <theconversation.com>.