Ban44
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Hi
I have a question in regards to the Devonald 2008 sexual offence case.

The conviction was due to differing purpose of the defendant under section 76.
My question is if the purpose of the defendant was truthful but his deception was lying about his gender would he still be convicted and can he still be convicted under section 74?
Thanks.
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Notoriety
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(Original post by Ban44)
Hi
I have a question in regards to the Devonald 2008 sexual offence case.

The conviction was due to differing purpose of the defendant under section 76.
Indeed, D was convicted under s76. The purpose was to embarrass and humiliate the victim. This is in contrast, it would seem to R v B [2013], where the purpose was sexual gratification with a dash of humiliation. In the latter case it was it was BF deceiving GF -- pretending to be someone else, getting sexual pictures, and looking to humiliate her ... but nevertheless the purpose of the acts were sexual gratification and she consented to sexually gratifying acts. Of course, in Devonald, it was 37-year-old man (and father of the victim's ex) who took it upon himself to avenge his daughter's humiliation, that was the act's purpose. The victim therefore did not consent to the purpose.

A point to note is that R v B expressed doubt about the validity of R v Devonald. "If there is any conflict between the decisions in Jheeta and Devonald, we would unhesitatingly follow Jheeta.Thus, it will be a rare case in which s. 6 should be applied." But obviously this allows for rare cases, and a following Court of Appeal judgment could go either way with it; more likely the issue would be settled by the Supreme Court.

My question is if the purpose of the defendant was truthful but his deception was lying about his gender would he still be convicted and can he still be convicted under section 74?
Thanks.
It would seem that sexual gratification is a discrete, wild-ranging "purpose". A person lying about their gender would likely tick the sexual gratification. Then you would revert to the ordinary definition of consent under s74. Namely "[whether] he agrees by choice, and has the freedom and capacity to make that choice."

R v McNally [2013] deals with this directly. Two girls, one gave the impression to the other that she was a boy. They engaged in sexual activity. Held there was assault by penetration owing to lack the apparent consent being based on a lie and therefore vitiated. S76 was never claimed to apply in that case, and for obvious reasons. (I.e. what I said above.) In essence, Devonald does not answer your question and you are looking at the wrong case.

The discussion I have just given you, and you're quite lucky I am procrastinating, is needed to get you high marks. But the simple answer to your question is that Devonald and s76 do not apply. R v McNally does.
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Ban44
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Great thanks!
I really appreciate your answer to my question.
However, I still have a doubt.
For example a homosexual man might for example adopt the ‘online identity’ of a
young woman in order to persuade a heterosexual man to masturbate online for him. So for example, if had devonald deceived through gender online only not purpose. Would this still be a conviction?
This situation clearly doesn't invoke s76 but would it invoke s74? This case is different from physical activity by McNally.
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Notoriety
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(Original post by Ban44)
Great thanks!
I really appreciate your answer to my question.
However, I still have a doubt.
For example a homosexual man might for example adopt the ‘online identity’ of a
young woman in order to persuade a heterosexual man to masturbate online for him. So for example, if had devonald deceived through gender online only not purpose. Would this still be a conviction?
This situation clearly doesn't invoke s76 but would it invoke s74? This case is different from physical activity by McNally.
No, the gender of the defendant had nothing to do with s76 being successful. The reason it came under s76, as I said, is because the purpose of the activity was embarrass. There was no sexual gratification component to it.

Physical activity or not; has nothing to do with consent. Consent is a component of all the offences. E.g. R v B was determined under s4 "Causing a person to engage in sexual activity without consent". The name of the offence alone proves my point, but specifically s4(1)(b) requires that "B does not consent to engaging in the activity". The legal test of consent is the same for all cases.
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Ban44
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So in this situation - a homosexual man adopting the ‘online identity’ of a young woman to persuade a heterosexual man to masturbate online for him. Would there be a conviction? Under section 74?
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Notoriety
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(Original post by Ban44)
So in this situation - a homosexual man adopting the ‘online identity’ of a young woman to persuade a heterosexual man to masturbate online for him. Would there be a conviction? Under section 74?
Under section 4. Consent being defined in section 74 and not aided by section 75 nor 76. Remember 74-76 are not offences; they simply clarify what "consent" means in relation to the sections which do "create" offences, e.g. s1 rape, s2 assault by penetration, s4 causing a person to engage in sexual activity without consent.

If you don't mind me asking, where is it you study? Is this a sexual offence module or part of the obligatory criminal law module?
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Ban44
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(Original post by Notoriety)
Under section 4. Consent being defined in section 74 and not aided by section 75 nor 76. Remember 74-76 are not offences; they simply clarify what "consent" means in relation to the sections which do "create" offences, e.g. s1 rape, s2 assault by penetration, s4 causing a person to engage in sexual activity without consent.

If you don't mind me asking, where is it you study? Is this a sexual offence module or part of the obligatory criminal law module?
Thanks for the clarification.
I'm a student doing biological sciences interested in studying criminal law, planning to maybe study law as a postgrad. I do some reading from books here and there and I was a little confused to why the Devonald case did not take s 74 route rather than s 76. I think I made my question long winded- sorry about that.
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(Original post by Ban44)
Thanks for the clarification.
I'm a student doing biological sciences interested in studying criminal law, planning to maybe study law as a postgrad. I do some reading from books here and there and I was a little confused to why the Devonald case did not take s 74 route rather than s 76. I think I made my question long winded- sorry about that.
That's fair enough. It is a fairly complicated question: three CofA cases saying two different things. It is understandable that you as a non-law student wouldn't grasp the nuances immediately. I have to say I am impressed you even noticed the difference between 74 and 76: most so-called law students who ask similar questions on here wouldn't have the perceptiveness to do so. Hence I don't usually respond to these type of questions on here; this, however, is an interesting question with a lot of debate surrounding it.

Best of luck with the degree, and the postgrad if you decide to take it up. Btw, if you're at university, you should have access to Westlaw. There you will be able to read the cases, journals and some books.
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Ban44
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(Original post by Notoriety)
That's fair enough. It is a fairly complicated question: three CofA cases saying two different things. It is understandable that you as a non-law student wouldn't grasp the nuances immediately. I have to say I am impressed you even noticed the difference between 74 and 76: most so-called law students who ask similar questions on here wouldn't have the perceptiveness to do so. Hence I don't usually respond to these type of questions on here; this, however, is an interesting question with a lot of debate surrounding it.

Best of luck with the degree, and the postgrad if you decide to take it up. Btw, if you're at university, you should have access to Westlaw. There you will be able to read the cases, journals and some books.
Thank you! I still yet to grasp some key concepts as they are a little challenging. I need to check with my university if I have access to Westlaw. I feel like these cases are very intriguing to read about and how it was dealt with. The debates that surround such cases are also very intersting.
Lastly, do u personally think Devonald could have just been dealt with section 74. I think it would have been easier. What's your take?
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(Original post by Ban44)
Thank you! I still yet to grasp some key concepts as they are a little challenging. I need to check with my university if I have access to Westlaw. I feel like these cases are very intriguing to read about and how it was dealt with. The debates that surround such cases are also very intersting.
Lastly, do u personally think Devonald could have just been dealt with section 74. I think it would have been easier. What's your take?
S76 creates an irrebutable presumption (a) that consent was not given and (b) that D lack reasonable belief consent was given. Once you make that out, you're spared the laborious task of piecing together hundreds of facts to prove those two separate points, with the latter usually being particularly bothersome.

As for what I think, they lose very little by doing this. CPS succeed in their argument: they make their lives easier in hundreds of other cases of a similar type every year. CPS fail: they win on s74 or they initially win on s76 but lose on the point of law at appeal, then they get a retrial and win on s74. It's a win-win.

As for the point of law, I think Leveson's interpretation of "nature or purpose" is strained. All in all, a sexual act (you entered into knowing it is a sexual act) is a sexual act in nature and purpose. The rule was created to reflect the common law developments: where a doctor might say to V that an invasive act is part of a medical procedure when in reality it is for D's sexual pleasure. The thing you agreed to, i.e. an inherently non-sexual act from your POV, was in purpose and nature sexual and you were deceived into think was otherwise. Also what Leveson was saying is that it can go the other way: i.e. you agree to do a sexual act and you find out it is non-sexual. Almost as if the doctor lied to you and said he wants to do X because he finds it kinky, but in reality he has a non-sexual reason for doing it. Very strange reasoning.
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Ban44
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Very strange indeed. But I think I understand this far better now. I was actually reading an article online which mentioned, "A wide definition for ‘purpose’ risked bringing within the remit of section 76 situations never contemplated by Parliament. Small comfort for the convicted Mr Devonald (who may have struggled under s 74 in any event), but a clear decision in favour of fair trials rather than conclusive presumptions".

I don't think I entirely understand what they mean by small comfort for the convicted and the struggle under s 74. Would it possible for you to clarify this for me. I apologise if you feel like I am asking the most basic questions.
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Ban44
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Also I was reading an article by Michael Hirst, LLB, LLM who talks about the Devonald case but also brings the following question up:
"What then if D deceives V as to his gender, but is truthful as to the purpose of his request? A homosexual man might for example adopt the ‘online identity’ of a young woman in order to persuade a heterosexual man to masturbate online for him. Such a case would be
difficult to call. Arguably, D still attempts to deceive V as to the nature of his request (because it is not
heterosexual) but that could not apply to a middle aged defendant who adopts a younger online persona without practising any deception as to his gender or
sexual orientation. Such a deception could not of itself give rise to an offence under s. 4".

This passage relates to my earlier questions which I was confused about. Does that mean D's gender deception to V is not an offence under section 4?
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(Original post by Ban44)
Also I was reading an article by Michael Hirst, LLB, LLM who talks about the Devonald case but also brings the following question up:
"What then if D deceives V as to his gender, but is truthful as to the purpose of his request? A homosexual man might for example adopt the ‘online identity’ of a young woman in order to persuade a heterosexual man to masturbate online for him. Such a case would be
difficult to call. Arguably, D still attempts to deceive V as to the nature of his request (because it is not
heterosexual) but that could not apply to a middle aged defendant who adopts a younger online persona without practising any deception as to his gender or
sexual orientation. Such a deception could not of itself give rise to an offence under s. 4".

This passage relates to my earlier questions which I was confused about. Does that mean D's gender deception to V is not an offence under section 4?
If Prof Hirst is saying that deception as to gender cannot vitiate consent, I would say his comments must have come before R v McNally or that they in reference only to s76 deception or that he was wrong. We understand that s76 would not be affected by gender: Devonald tells us that, as does Leveson LJ in R v McNally (para 18). If he meant this, everyone agrees with this.

As to gender vitiating consent, under section 74 (which applies to all consent-dependent offences (e.g. s2 and 4) equally), it is is possible.

(Original post by R v McNally, Leveson LJ)
26 Thus while, in a physical sense, the acts of assault by penetration of the vagina are the same whether perpetrated by a male or a female, the sexual nature of the acts is, on any common sense view, different where the complainant is deliberately deceived by a defendant into believing that the latter is a male. Assuming the facts to be proved as alleged, M chose to have sexual encounters with a boy and her preference (her freedom to choose whether or not to have a sexual encounter with a girl) was removed by the defendant's deception.

27 It follows from the foregoing analysis that we conclude that, depending on the circumstances, deception as to gender can vitiate consent ...
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Ban44
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Hey again,
Thanks for that,

I had another query. I was reading an online article which mentioned that from the Bingham case-
''A wide definition for ‘purpose’ risked bringing within the remit of section 76 situations never contemplated by Parliament. Small comfort for the convicted Mr Devonald (who may have struggled under s 74 in any event), but a clear decision in favour of fair trials rather than conclusive presumptions''

What do they mean by small comfort for Devonald and struggled under s 74?
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(Original post by Ban44)
Hey again,
Thanks for that,

I had another query. I was reading an online article which mentioned that from the Bingham case-
''A wide definition for ‘purpose’ risked bringing within the remit of section 76 situations never contemplated by Parliament. Small comfort for the convicted Mr Devonald (who may have struggled under s 74 in any event), but a clear decision in favour of fair trials rather than conclusive presumptions''

What do they mean by small comfort for Devonald and struggled under s 74?
I think it means Devonald was stuffed either way. That is, even though s76 has been refined by R v B, that refinement does not nullify the Court of Appeal's decision in Devonald. He is still in prison. Additionally, if if this refinement were operative in Devonald, D would likely have been convicted under the s74 definition of consent. He would still be in prison today.

I wouldn't get hung up on that quote; it tells us nothing which we don't already know.
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Ban44
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Ahh got you!

It just occurred to me that catfishing online involves people stealing the online identity of a man or woman, and creating a profile to lure multiple victims into having sexual contact or sending explicit photos. However this is not illegal in the UK but however wouldn't section 74 help in this situation as the victim has not consented freely and an offence has occurred ? 🤔
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Scorpio6667
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(Original post by Ban44)
Ahh got you!

It just occurred to me that catfishing online involves people stealing the online identity of a man or woman, and creating a profile to lure multiple victims into having sexual contact or sending explicit photos. However this is not illegal in the UK but however wouldn't section 74 help in this situation as the victim has not consented freely and an offence has occurred ? 🤔
Good question,

I have read many stories of people in the UK being catfished online for sexual purposes but it is not illegal as of yet. But I am not sure why s 4 with the help so s 74 cannot be used to help.
Sorry couldn't answer your question properly maybe user Notoriety can answer.
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Ban44
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(Original post by Notoriety)
I think it means Devonald was stuffed either way. That is, even though s76 has been refined by R v B, that refinement does not nullify the Court of Appeal's decision in Devonald. He is still in prison. Additionally, if if this refinement were operative in Devonald, D would likely have been convicted under the s74 definition of consent. He would still be in prison today.

I wouldn't get hung up on that quote; it tells us nothing which we don't already know.
Ahh got you!

It just occurred to me that catfishing online involves people stealing the online identity of a man or woman, and creating a profile to lure multiple victims into having sexual contact or sending explicit photos. However this is not illegal in the UK but however wouldn't section 74 help in this situation as the victim has not consented freely and an offence has occurred ? 🤔
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allthings
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As much as I hate dishonesty, I think it would lead to a very unsatisfactory and confusing situation if McNally applied to catfishing.

In the McNally case, Leveson LJ called for common-sense and said it would be 'depending on the circumstances'... whether gender vitiated consent.

McNally was not charged in relation to any of her 'catfishing' conduct, it was only when things escalated to the point where she was physically wearing a disguise, using a prop to give the appearance of a penis, etc. that applying a broad common-sense approach, the criminal law was invited to step in to address the gender subterfuge.

Catfishing is not illegal. If someone choose to chat with another person online whom they have never met, they cannot know whether the person is male, female, trans, gender fluid (regardless of what the person feels comfortable identifying as). Provided both are consenting to interact and are both adults, it will be for them to be as engage with the relationship as much or as little as they choose. A man who pretended to be a woman to get Imran Khan to do stuff on webcam was not charged. There was also a journalist that did the same to a male politician. Again, no charges.

I think applying the broad-brush common-sense approach that Leveson LJ invites, people generally recognise that people have different online and offline personas. Sometimes in trivial ways (maybe they're carrying a few extra pounds), sometimes less trivial (they're married!). Like cheating and infidelity, it's not a good way to form any relationship - although sadly it happens. There may of course be valid reasons why people may experiment with an online persona if they are suffering with a physical disability or something.

I think if McNally started applying to catfishing it would be the beginning of the end for clarity around consent. It would mean conduct which is a part of daily life would start to flood the criminal justice system. It would mean regular shows like Catfish would suddenly be depicting criminal conduct and have to be taken off air. You would also have a situation where whole sets of people would be perfectly free to lie as much as they want online whilst other sets of people would be criminally prosecuted. So, a 70-year old man would be free to lie and say he was a 30-year old man. But a 19-year old with gender issues could be criminally liable and go to prison, for adopting a female persona but being honest about everything else? A person could lie and say they were a celebrity provided they were the same gender as a celebrity. Does the criminal justice system really want to start wafting through all these types of matters?

I say the law should stay as it is. Allow people the freedom to be as little or as much as themselves as they want online (although educate them on healthy relationships and trust), but if the relationship escalates beyond that: where for example two people are about to engage in penetrative intimacy and one of them is wearing a physical disguise, then the criminal law can decide if it wants to step in at that point!
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