Indecent Assault - Women consented through deceit to nature not quality of act
R v Tabassum
(2000) The Times, May 26, Court of Appeal
It was the prosecution case that Tabassum had asked several women to take part in a breast cancer survey he was carrying out in order to prepare a database software package to sell to doctors. The three complainants consented to Tabassum showing them how to carry out a breast self- examination, which involved taking off their bras and allowing Tabassum to feel their breasts. Tabassum had no medical qualifications or training and each of the complainants said that they had only consented because they thought he was so qualified.
There was no evidence of a sexual motive. Counsel for Tabassum had made an application at the trial that the case should be discontinued on the basis that the complainants had undoubtedly consented and such consent was not negatived by deception, except where identity was in issue and the nature and quality of the act done was different from that for which consent was given. He referred to R v Linekar [1995] QB 250, R v Richardson (Diane) [1999] QB 444 and R v Clarence (1888) 22 QBD 23.
Counsel for Tabassum submitted that the lack of medical qualifications on the part of Tabassum did not change the nature and quality of the act, which was exactly what the complainants had consented to.
The judge ruled against that submission and Tabassum was subsequently convicted. On appeal, Counsel for Tabassum submitted that the judge’s ruling was wrong.
In the Court's judgment the authorities could be analysed in this way: the wife in Clarence and the prostitute in Linekar both consented to sexual intercourse knowing both the nature and quality of that act. The additional unexpected consequences of infection in one case and non-payment in the other were irrelevant and did not detract from the women’s consent to sexual intercourse. In Richardson the case proceeded solely on the question of identity; the nature and quality of the act was not relied on. In the present case the judge was entitled to follow a passage from the judgment of Mr Justice Stephen in R v Clarence (at p44) which he cited in his ruling:
"There is abundant authority to show that such frauds as these vitiate consent both in the case of rape and in the case of indecent assault. I should prefer myself to say that consent in such cases did not exist at all because the act consented to is not the act done. Consent to a surgical operation or examination is not a consent to a sexual connection or indecent behaviour."
The nature and quality of the defendant’s acts in touching these women’s breasts was indecent unless the complainants had consented to that touching.
On the evidence, the complainants were consenting to being touched for medical purposes not for any other reason. They were consenting to the nature of the act but not to its quality. There was no true consent. It followed that the judge’s ruling was correct.
The Decision
A woman who consented to the touching of her breasts, because she mistakenly believed the defendant was medically qualified, was only consenting to the nature of the act, not to its quality. In the absence of genuine consent the defendant would be guilty of indecent assault.
The Court of Appeal, Criminal Division, so held in dismissing an appeal by Tabassum against his conviction at Crown Court of three counts of indecent assault for which he was sentenced to concurrent terms of nine months imprisonment.
Comment
It is clear in this case that no true consent was given - as the court found; consent to a surgical operation or examination is not a consent to sexual connection. (Linekar) referred to in the judgment was a case of fraud affecting consent in Rape and it was a question of payment - a prostitute consented to sexual intercourse and thereafter it was a question of "making off without payment". The prostitute said she would never have consented if she knew the service would not be paid for, clearly she knew the nature and the quality of the act.
Clarence was a case of a man knowing he had Gonorrhoea having connection with his wife, who did not know it and, as a result he infected her. Is he guilty of an offence under ss 20 or 24 of The Offences Against the Person Act 1861? The court the wife's consent was as full and conscious as consent could be. Sexual Intercourse was not obtained by any fraud either as to the nature of the act or the identity of the agent. 9 Judges of the Court of Crown Cases Reserved held it was not an offence under either section.
The concept of true consent is the similar in the offence of rape. SEE R v Williams [1923] 1 KB 340 where a teacher told a victim that sexual Intercourse was a technique to improve the singing voice, this is fraud as to the nature of the act.
Rob Jerrard