The criminal law is replete with examples of cases where a person has consented to sexual activity based on something that proved to be untrue. But when does a lie cancel out a person’s consent? In Western Australia, the answer to that question is far from clear.

Consent to sexual activity in WA

At present, WA is the only state in Australia that has not adopted an affirmative consent model. Our Criminal Code requires that consent be ‘freely and voluntarily given’ and then lists several circumstances in which that will not be the case including, relevantly, if the consent is obtained by ‘deceit, or any fraudulent means’. The person giving consent must also have the capacity to do so, which may be lacking on the basis that they are intoxicated (to the degree that they are incapable of consenting) or unconscious, for example.

Affirmative consent, on the other hand, generally requires free and voluntary agreement, which places less emphasis on one person giving consent to another and instead focuses on what each party understood they were agreeing to. While some states still list circumstances in which there will not be such an agreement, the affirmative consent model is much simpler and makes clear that consent can never be presumed, placing equal onus on both people to reach agreement about what is to take place.

Fraud, deceit, and lies – where is the line?

In Western Australia, the Court of Appeal has held that consent obtained by ‘deceit or any fraudulent means’ requires that:

1. The accused intentionally made a false representation, which the accused knew was false (although the accused’s motivation for making the representation is irrelevant);
2. The complainant believed the representation was true; and
3. If the representation had not been made, the complainant would not have consented to the sexual activity (so there must be a causal link between the representation and the complainant’s consent).

However, there remains a lack of clarity about whether the nature of the false representation matters. For example, if someone represented that they were an AFL player and the complainant believed this and would not have consented without that representation, would that be regarded as consent obtained by deceit? In a 2022 Court of Appeal case, President Buss (now retired) was the only judge to express a decided view on this, adopting a broad interpretation that would cover any fraudulent representation (ie, President Buss thought that any lie which caused the complainant to consent should cancel out their consent at law). However, President Buss also reiterated the view expressed by judges in previous cases that the legislation needed to be amended to clarify the scope of deceit and fraud.

There is concern that a broad application of ‘deceit or any fraudulent means’ would capture what are characterised by some as ‘trivial’ representations about a person’s profession or wealth, meaning lies of this nature that induce a person into sexual activity could result in that activity being non-consensual. Accordingly, a recent review of WA’s sexual offences by the Law Reform Commission of WA (LRCWA) recommended that the list of circumstances in which a person does not consent should be amended to:

• Remove the reference to ‘deceit, or any fraudulent means’; and
• Make clear that a person’s consent will be vitiated by their mistaken belief about:
  • The nature of the sexual activity;
  • The identity of the other person (making it clear that ‘identity’ refers only to who the person is, not their sex, gender, profession, skill or any other attribute); or
  • The purpose of the sexual activity.

The LRCWA recommendation has not yet been put into law in WA, and whether or not the government will make this change remains to be seen. But the LRCWA recommendation does seem to strike the right balance between protecting sexual agency and autonomy and avoiding the criminalisation of minor fraudulent representations. While such representations are no doubt hurtful to the person on the receiving end and a gross violation of their trust, whether they should be criminalised is another matter entirely.

Non-consensual condom removal

The issues of deceit and consent also arise in the context of non-consensual condom removal (or when someone deliberately tampers with a condom either before or during sexual activity without the other person’s knowledge and agreement). This conduct is more clearly within the scope of fraud or deceit as it changes the nature of what is being consented to (ie, the person consented to protected sexual activity and ultimately had unprotected sexual activity).

The LRCWA recommended that non-consensual condom removal be added to the list of circumstances in which a person does not consent, similar to the approach in all other states. This would further clarify the law by expressly naming conduct that is considered criminal.

Conclusion

It remains unclear what exactly constitutes obtaining consent by deceit or fraudulent means in Western Australia. Amendments to the Criminal Code are necessary to clarify the law around consent, a point made by judges as early as 2008.

While the LRCWA’s report was tabled in parliament on 15 May 2024, the government is yet to provide a formal response. This is disheartening given the rigorous work of the LRCWA and the years of advocacy making the case for clarity in the law as it relates to sexual offending.

Note that the content of this blog does not apply in all jurisdictions, does not constitute legal advice, and should not be relied upon. You should seek legal advice in relation to any particular matters you may have. All opinions expressed are our own, not necessarily those of any organisations with which we are connected.