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R v Tabassum [2000] 2 Cr App R 328

INDECENT ASSAULT – CONSENT - DECEPTION

Facts

The appellant had deceived a number of women into participating in what was claimed to be a breast cancer survey, for the purposes of helping the appellant to prepare a software package for sale to doctors. On this basis, the appellant induced the women to allow him to demonstrate how to carry out a self-examination, which required that the victims remove their clothes and allow the appellant to feel their breasts. Each victim was adamant that their consent was predicated on the belief that the appellant possessed the qualifications he claimed to hold, and that the procedure was medical in nature.

Issue

Consent will be negatived if a person is deceived as to the nature or quality of the act performed. The appellant claimed that, as he had done no more than was ostensibly consented to by the victims, their consent remained operative, and therefore that his conviction for indecent assault should be quashed as a consequence.

Held

The acts of the appellant were indecent if they were performed without the consent of the victims. On the facts, there could be no true consent as the women had consented only to acts of a medical nature, when in fact the actions of the appellant were without any medical significance. The nature of the act consented to, a breast examination, was so fundamentally different that it rendered any apparent consent entirely inoperative. On this basis, the appeal was dismissed and the conviction of the appellant upheld.


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