SD, R. v

For the conclusive presumption in section 76(2)(a) of the Sexual Offences Act 2003, intentional deception about the purpose of sexual activity is not confined to deception about its physical nature. Ordinary lies or inducements will not normally suffice. However, a person who masturbates because he believes he is engaging in mutual online sexual activity with, and for the sexual gratification of, another person may be deceived as to the activity’s purpose where the deceiver’s actual object is humiliation or embarrassment. In those circumstances, the statutory presumption of no consent applies.

The applicant, aged 37, pretended online to be a 20-year-old woman and induced the 16-year-old former boyfriend of his daughter to masturbate twice before a web camera. The complainant believed that he was communicating with, and sexually gratifying, the purported woman. The applicant said that his purpose was to teach the complainant a lesson and embarrass him.

Following a ruling by the judge at the Crown Court at Peterborough, the applicant changed his plea and admitted causing a person to engage in sexual activity without consent. He applied for leave to appeal against conviction. The central issue was whether the deception concerned the purpose of the sexual activity within section 76(2)(a) of the Sexual Offences Act 2003.

1. The application for leave to appeal against conviction was refused. The trial judge correctly ruled that it was open to a jury to find that the complainant had been deceived as to the purpose of the masturbation.
2. Section 4(1) of the Sexual Offences Act 2003 requires, among other matters, that the complainant did not consent to the sexual activity. The circumstances in section 75 did not arise. The court therefore considered the conclusive presumptions in section 76.
3. Although the Crown had relied on both limbs of section 76(2), the court decided the case under section 76(2)(a). That provision concerns intentional deception as to the nature or purpose of the relevant act. The court applied the approach in R v Jheeta [2007] EWCA Crim 1699: the provision is not engaged by every disingenuous inducement, but can apply where deceit bears upon the purpose of the sexual activity.
4. The complainant knew that masturbation was sexual. That did not resolve the issue. He performed it because he believed that he was participating in online sexual activity with, and for the sexual gratification of, a 20-year-old woman. In truth, he was performing it for the father of his former girlfriend, whose purpose was to embarrass or expose him. The deception therefore went to the purpose of the act. Section 76(2)(a) conclusively presumed both absence of consent and absence of any belief in consent.
5. The applicant’s plea change followed a correct ruling of law. There was no basis to challenge the resulting conviction.

• Court of Appeal (Criminal Division) The Full Court refused the applicant’s application for leave to appeal against conviction.
• Crown Court at Peterborough On 15 October 2007, following the trial judge’s ruling on consent, the applicant changed his plea and admitted causing a person to engage in sexual activity without consent. He received a community sentence with supervision and was disqualified from working with children.