Is Sex by Deception considered as “Consent”?
Recently, a Victorian man has been convicted in unusual circumstances, following his impersonation of another person in order to convince a female victim to having sex with him.
The defendant had recently appeared in court after “tricking” the woman by creating a fake internet dating profile. On this profile the accused used a picture showing a muscle-clad, blonde man who showed no resemblance to the accused.
They had never met before and the woman assumed that the man she was meeting was the muscle-clad man from the pictures on the dating website.
At some point throughout the night the true identity of the accused was established after the sexual act had taken place. The victim contacted the police and the accused was charged with sex by deception.
In light of this recent case it is important to know the law in regards to sexual assault by deception. The first issue that needs to be clarified is what would constitute fraud to the extent that consent to sex is negated.
What is the law in relation to Consent in NSW?
In NSW the applicable law in regards to this issue states that consent to sexual intercourse will be negated if the person is:
a) Under a mistaken belief as to the identity of the other person or;
b) Under a mistaken belief that the other person is married to the person or;
c) Under a mistaken belief that the sexual intercourse is for health or hygienic purposes.
Furthermore the person carrying out the act will be deemed to have known that the other person did not consent to the sexual intercourse if they know the person only consented to the sexual intercourse under the mistaken belief.
What is the likely penalty for such as offence?
In NSW a person who has sexual intercourse without consent, is guilty of sexual assault, which comes with a maximum penalty of 14 years imprisonment.
With the increasing number of dating and social websites that are now in use on the internet and with more and more people meeting online its important to be truthful about your identity otherwise the consequences can be very serious.
For more information on Sexual Assault and other sex offences, click here.
If you have been charged, or about to be charged with a sex offence, call our office immediately for a free consultation, 1300 595 299.