(1)If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed—
(a)that the complainant did not consent to the relevant act, and
(b)that the defendant did not believe that the complainant consented to the relevant act.
(2)The circumstances are that—
(a)the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;
(b)the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.
Cases considering section 76 14
[2020] EWCA Crim 971 · 23 July 2020
The court held that the alleged fertility deception fell outside the conclusive presumptions in section 76. It therefore had to be assessed under the general definition of consent in section 74. (see paras [27]-[30]; [42])
[2013] EWCA Crim 1051 · 27 June 2013Limits
The conclusive presumptions did not apply. The court held that their limited scope did not prevent consent and reasonable belief in consent from being assessed under section 74 where deception was alleged. (see paras [17]-[18]; [21]; [24])
[2008] EWCA Crim 527 · 18 February 2008Interprets
The court applied the conclusive-presumption scheme in section 76. It held that the case fell within section 76(2)(a), with the consequence that absence of consent and absence of belief in consent were conclusively presumed. (see paras [5]; [7])
The court interpreted deception as to the purpose of the relevant act as extending beyond the act’s physical nature. The complainant’s belief that he was sexually gratifying an online woman, rather than being humiliated by the applicant, was deception as to purpose and engaged the conclusive presumption. (see paras [6]; [7])
What each judgment says about section 76 is in the case-law panel in the full Act.
143.This section creates conclusive presumptions about lack of consent and the absence of belief in consent in situations where the defendant deceived the complainant into sexual activity. Subsection (2)(a) covers the situation where, for example, the defendant intentionally tells the complainant that digital penetration of her vagina is necessary for medical reasons when in fact it is for his sexual gratification. Subsection (2)(b) covers the situation where, for example, the defendant impersonates the complainant’s partner and thereby causes the complainant to consent to the relevant act. Where the prosecution prove that the defendant did a relevant act (as defined in section 77) and that any of the circumstances described in subsection (2) existed, it is conclusively presumed that the complainant did not consent to the relevant act and that the defendant did not believe that the complainant consented to the relevant act. The defendant will therefore be convicted.