R v Devonald [2008] EWCA Crim 527

Definition of ‘nature or purpose’ in s.76 of the Sexual Offences Act 2003

Facts

The defendant, believing the victim to have treated his daughter badly during their relationship, posed as a young woman to correspond with the victim online. Using this persona, the defendant tricked the victim into masturbating in front of a webcam with the purpose of embarrassing the victim. The defendant was convicted of the offence of causing activity without consent under s.4 of the Sexual Offences Act 2003.

Issues

The offence of causing sexual activity without consent requires an absence of consent on the part of the victim, and the absence of a reasonable belief in consent on the part of the defendant. s.76 of the Sexual Offences Act 2003 imposes a conclusive presumption of the absence of consent and the absence of a reasonable belief in consent in circumstances where the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act.

The defendant argued that the ‘relevant act’ to which the deceit must pertain is the sexual act: deceit as to surrounding circumstances should not suffice. On this basis, he argued that it could not be presumed that the victim masturbated without consent as he knew of the sexual nature of masturbating and that its purpose was his own sexual gratification.

Held

The Court of Appeal upheld the conviction. The ‘purpose’ of the act encompassed more than just personal sexual gratification in this instance: the victim’s purpose encompassed sexual gratification of a non-existent woman, when the true purpose was his humiliation. As s.76 applies to instances of deceit as to the nature or purpose of the act, it did not matter that the victim was aware that the act was sexual in nature.