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Title: Deception, mistake, privacy and consent : a conceptual framework for resolving the 'line-drawing' problem in sex-by-deception and mistaken sex
Author: Clement, Rachel
ISNI:       0000 0004 7966 2268
Awarding Body: University of Oxford
Current Institution: University of Oxford
Date of Award: 2018
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What is the appropriate legal response to sexual activity induced by deception or mistake? My thesis is built on three foundational moves. First, I challenge orthodox legal approaches to identifying deception and develop a tripartite taxonomy of active and passive deception, and uninduced mistake. Second, I identify the violation of the right to sexual integrity as the conceptual core of rape and sexual assault. Third, I recast the right to sexual integrity as comprising three component rights: the right to token ostensible consent, the right to be free from illegitimate interference with the decision to do so, and the right to know information relevant to that decision. Deception and uninduced mistake implicate different component rights, and so affect consent-validity in different ways. Only in restricted circumstances will consent given on the basis of an uninduced mistake (rather than deception) constitute a violation of sexual integrity. In most cases, mistaken consent is valid. When consent is given on the basis of deception or 'relevant' uninduced mistakes D infringes C's right to sexual integrity. However, the right to sexual integrity it is not absolute, and must be balanced against D's rights, chiefly (but by no means exclusively) the right to privacy. This balancing exercise functions to exclude from the reach of both moral censure and criminal law certain deceptions and relevant mistakes that induce consent. Even when D's privacy right is not at stake, and C's moral consent is invalid, issues of legal and public policy may militate against imposing criminal liability. This thesis does not offer a comprehensive account of all circumstances in which deceptively induced or mistaken consent will be morally or legally (in)valid. However, it provides a much needed, robust theoretical framework for resolving long-standing difficulties in this controversial and highly contested area of the law.
Supervisor: Hoyano, Laura Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available
Keywords: Sexual Offences ; Criminal Law