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Fraud affecting consent in rape: Century old law upheld.

Regina v Linekar (1994) The Times 26 October Queen's Bench Division


This case R v Linekar (1994) The Times 26 October Queen's Bench Division represents the need for an additional charge if justice is to be achieved. As the Court pointed out the law on this subject has stood the test of time. To establish fraud in Rape it must be fraud as to the nature of the act itself or as to the identity of the person who did the act; R v Williams [1923] 1 KB 340 being a good example where W , a man who had intercourse with a girl after falsely pretending that his acts were a method of training her voice was properly convicted of rape. The history of the rule is fully explained in Papadimitropoulos mentioned below.

In cases of alleged rape the only types of fraud which vitiated consent were frauds as to the nature of the act itself or as to the identity of the person who did the act. The Court of Appeal, Criminal Division, so held in allowing an appeal by Gareth Linekar against his conviction in September 1993 at the Central Criminal Court of rape for which he was sentenced by way of a combination order to two years probation and 100 hours community service.

The complainant was a woman of 30 who worked occasionally as a prostitute. On evening in question she was working as such near a cinema in Streatham. The appellant approached her and a fee of 25 was negotiated. The Report said they had sexual intercourse on the balcony of a block of flats and then the appellant is alleged to have made off without payment

The complainant knocked at a nearby door. She appeared distressed and nearly naked and complained she had been raped. The police were alerted and the appellant was arrested. He told a number of lies regarding his involvement.

The Crown case, based on the evidence of the complainant, was that she would never have agreed to sexual intercourse unless she was paid in advance and a condom was used. The appellant had done neither but had forced himself upon her despite her struggles. The appellant's defence was that she was not telling the truth and her complaint was motivated by mercenary reasons. In the course of cross-examination of the complainant a question arose as to whether the complainant's consent to sexual intercourse was vitiated by the appellant's decision not to pay her. The judge ruled that if intercourse was obtained by fraud the complainant could not be said to have been consenting to it. The jury were so directed and requested to indicate the basis upon which they convicted, if they did so.

By a majority of eleven to one they found the appellant guilty on the basis that the complainant's consent was vitiated by the fraud. The judge asked for that special verdict for sentencing purposes.

On appeal their Lordships were of the view that the only types of fraud which could vitiate consent in a case of rape were frauds as to the nature of the act itself or as to the identity of the person doing the act, and this did indeed represent the law as it was now was and had probably been for over a century. The Criminal Law Revision Commission had recommended that all other cases of fraud should be dealt with under section 3 of the Sexual Offences Act 1956, the procurement of a woman by false pretences.

Their Lordships considered a number of cases including R v Flattery (1877) 2 QBD 410), R v Williams ([1923] 1 KB 340), R v Barrow (1868) LR 1 CCR 156) and R v Dee ((1884) 15 Cox CC 579).

In their judgment, the ratio of Dee was that it was the absence of consent and not the existence of fraud which made it rape. Dee was followed in 1885 by the Criminal Law Amendment Act, section 3(2) of which foreshadowed section 3 of the Sexual Offences Act 1956.

In the case of R v Clarence (1888) 22 QBD 23, 27) Mr Justice Willis had said: "That consent obtained by fraud is no consent at all is not true as a general proposition either in fact or in law." Mr Justice Stephens had said (at p 44): "the only sorts of fraud which so far destroy the effect of a woman's consent as to convert a connection consented to in fact into a rape are frauds as to the nature of the act itself, or as to the identity of the person who does the act consent in such cases does not exist at all because the act consented to is not the act done." Those two sentences applied to the facts of this case.

The Australian case of Papadimitropoulos v R [1957] 98 CLR 249, 260) was also highly persuasive where the court had said: "It must be noted that in considering whether an apparent consent is unreal it is the mistake or misapprehension that makes it so. It is not the fraud producing the mistake which is material so much as the mistake itself."

Applying those dicta to the facts of the present case, it was clear that the prostitute had consented to sexual intercourse with the appellant. The reality of that consent had not been destroyed by the appellant's pretence that he would pay her.

If anything, the appellant was guilty of an offence under section 3 of the 1956 Act but that alternative was not put before the jury. The appeal was allowed and the conviction quashed.


Comment
As with Kerr, also reported in this website, this case represents the need for that additional charge if justice is to be achieved. As the court pointed out the law on this subject has stood the test of time, generations of police officers have left training establishments with various definitions on their minds, amongst which is; that to establish fraud in rape it must be fraud as to the nature of the act itself or as to the identity of the person who did the act;R. v .Williams [1923] 1 KB 340 being a good example where W, a man who had intercourse with a girl after falsely pretending that his acts were a method of training her voice, was properly convicted of rape. The history of the rule is fully explained in Papadimitropoulos, mentioned above.

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