Papadimitropoulos v The Queenhas shaped many decisions in Anglo-American jurisdictions. The case is often quoted by judges to underscore the position that only in cases of the identity of the man and the nature of the act would fraud be allowed to vitiate consent in rape and other sexual assault trials. The courts have turned a blind eye to other kinds of fraud, including grave lies told to induce an unsuspecting woman to give consent she would otherwise have refused. In this article, the writer charges courts in the Common Law Tradition to abandon this overly narrow and inaccurate exposition of consent which undermines sexual autonomy of victims but to also be careful of the overbreadth effect in the quest to protect consent.
Key words/phrases:
Consent, deceit, fraud, material fact, rape by deception, sexual autonomy, vitiate.
DEDICATION
To Isaac Nlason (University of Ghana School of Law) of the White Army.
APPRECIATION
I am indebted to my editors: Frederick Agaaya ESQ, Moses Ekow Andoh ESQ, Kabu Nartey, Abigail Wowolo and Charles Okyere without whose immeasurable contributions, this publication would not have been possible. Special thanks also goes to Veronica Gwira and Vanessa Osei Konadu, LLB Candidates, UG Law.
PART I:
INTRODUCTION
This was meant to be a love story. Contrary to its destiny, it became a story of pain, betrayal and regret. It is a story of a lady bamboozled out of her virtue by a cunning monster disguised as a lover and a friend. This case tells the story of a lady who surrenders to the joys of matrimonial love but who woke up briefly after her orgasms to realize her reality was fake. It was a well calculated attempt, perfectly executed to trick her out of everything she held dear; her virginity, her money and her future. The architect of her miseries was eventually arrested and brought to justice by the trial court. The High Court of Australia,[1] the country’s highest court, quashed the conviction on a final appeal and her tormentor walked free on a technical point of law.
As the present writer argued in a previous paper[2], emotions have no place in law and if an accused should walk free, emotions should never prevail over legal reasoning in order to convict them to appease society or even the complainant. The law must remain sacrosanct.
Without much ado, what is ThePapadimitropoulos Affair and who got it right? The High Court of Australia or the judge and jury at trial? This is the question at the heart of this paper.
To find answers to these questions, this paper further asks the question, ‘what is rape?’ Focusing on its elements which are in the most basic terms: carnal knowledge of a female by a man and the absence of consent. The said consent and matters affecting it are the central theme of this exposition.
This paper is divided into seven sections. The first part includes the introduction which gives brief facts of the case under review; Papadimitropoulos v The Queen[3]. It also attempts a definition of rape and its constituent elements. The second section unpacks factors affecting consent, including identity of the man, the nature and consequences of the impending act, voluntariness and its vitiating factors like duress and undue influence. The concept of deceit in the inducement to sex and the extent to which the courts in different jurisdictions have permitted convictions due to varied forms of deceit, is discussed in the third section while the fourth part of the paper addresses the overbreadth concerns and tests the contentious issue of seduction versus the aforementioned vitiating factors, specifically deceit and identifies the nuances between the two. The fifth section introduces the question of circumstantial evidence and its role in The Papadimitropoulos Affair, while the sixth part assesses Ghana’s position on this dilemma and the seventh part concludes the paper, with an attempt to determine the accuracy of the decision of the High Court of Australia to set aside the conviction of the accused.
The marriage which was not a marriage
The two individuals at the center of this story are Greeks. Both lived in Australia, an English-speaking country and of the English Common Law Tradition. John Papadimitropoulos spoke English. But the lady, Dena Karnezi, spoke no English; only her native Greek. Dena Karnezi is described as virtuous and would not engage in fornication. Shortly after they met, Papadimitropoulos asked Karnezi to marry him. On Thursday, June 14, 1956, he took her to the Registrar’s office in Melbourne. After they signed some documents drafted completely in English, Papadimitropoulos told her they were married whereupon they checked into a lodging house and she consented to having sex with him on belief that he was her husband. In fact, he was not. The documents were merely a notice of intention that a marriage would be celebrated. John Papadimitropoulos knew this fact but misrepresented to his lady that they were married. They stayed together from the Thursday of their supposed marriage to Monday morning when Papadimitropoulos left and never returned. The complainant told the police she brought £400 with her to their room. The money disappeared with the man she thought was her husband. Papadimitropoulos was eventually arrested, indicted for rape and tried. In his summing up, Gavan Duffy J directed the jury thus:
“Rape consisted in having carnal knowledge of a woman without her consent; but, in law, if the girl did believe that the accused had become her husband by marriage and acquiesced in sexual intercourse with him on that basis and would not have so acquiesced otherwise, and that belief of hers had been brought about by the accused representing to her that they were married, he knowing they were not, and with the intention of persuading her to consent to sexual intercourse with him as her husband, then there would be no consent at all.”[4][Emphasis added]
Extract from summing up of Gavan Duffy J
On this direction, Papadimitropoulos was convicted of rape with mitigating factors by a jury of twelve men.
His conviction was upheld on appeal but on a further appeal to the High Court of Australia, the court, speaking through Dixon, CJ set aside the conviction, holding thus:
“Rape is carnal knowledge of a woman without her consent. Carnal knowledge is the physical act of penetration. It is the consent to such physical act of penetration which is in question upon an indictment for rape. Such a consent demands a perception as to what is about to take place, as to the identity of the man and the character of what he is doing. Once the consent is comprehending and actual, the inducing causes cannot destroy its reality and leave the man guilty of rape.”[5][Emphasis added]
Ratio of High Court
PART II:
The Elements of Rape
Indeed, their Lordships are right on their premise. Rape must include carnal knowledge; which they rightly state is the physical act of penetration that is a crucial element to prove on an indictment of rape. But it is not every sort of penetration without consent which would make one guilty of rape. Dotse, JSC clarifies it in Gligah and Atiso v the Republic, [6] espousing that:
“Carnal knowledge is the penetration of a woman’s vagina by a man’s penis. It does not really matter how deep or however little the penis went into the vagina. So long as there was some penetration beyond what is known as brush work, penetration would be deemed to have occurred and carnal knowledge taken to have been completed.”[7]
Carnal knowledge between Dena Karnezi and John Papadimitropoulos is not in dispute. The next element, which is in contention is consent. In the Anglo-American jurisdictions, the courts have stressed time and again that consent to sexual activity rests on the identity of the man[8] and the nature of the act[9]. Reiterating this point, Dixon, CJ says—“such a consent demands a perception as to what is about to take place, as to the identity of the man and the character of what he is doing.” His Lordship did not misstate the law here. Consent in sexual matters demands that all parties to the activity understand the nature and consequences of their action. Flowing from this premise, where a party consents to an activity but the outcome is materially different from that to which they consented, the apparent consent is null and void.[10] In R v Flattery,[11]a teenager submitted to the accused, John Flattery who had sex with her under the pretext of a medical procedure to cure her ailment. Flattery was convicted under the hand of Mellor J, of the Queen’s Bench for felony rape.
The identity of the man as Dixon, CJ mentions in Papadimitropoulos v The Queen is also critical. That is where a man impersonates another and his victim, under the impression that they are having sex with the person impersonated consents to the activity, the man would be guilty of rape.[12] Patricia Falk[13] recounts the story of the notorious ‘Fantasy Man,’ in Tennessee, USA who impersonated the boyfriends/fiancés of women via phone call and tricked them into blindfolding themselves as a fantasy and then having sex with them after they left their doors unlocked on his instruction.[14] The identity of the man to whom these women consented is different from who they believed to have actually consented and as Dixon, CJ rightly mentions, this is rape. In the absence of these two vitiating factors, viz: the nature of the act as discussed above and any identity fraud, the court in Papadimitropoulosheld that “the inducing causes cannot destroy”apparent consent as to make an accused guilty of rape. This statement of law has become known among scholars as “fraud in the factum” and “fraud in the inducement.”
The facts affecting consent to the act of sexual intercourse, being the identity of the man and the nature of the act have received judicial blessing in determining validity of consent whereas inducing factors have been rejected even where fraud is admitted by the accused. This position raises multiple questions yet to be addressed by the prevailing authorities. Firstly, can consent be valid when not given voluntarily?
Voluntariness of Consent
Consent is essentially an agreement to an activity or state of affairs.
The agreement must be made freely and reflect the true wish of each party[15] and the person giving such consent must have legal capacity to consent to the act and it should not be induced by any deception or any other vitiating factor.[16] Consent given freely means the person agreeing to the act did so voluntarily. This includes being vest with all relevant facts to make that decision—and “educational status, literacy, language barrier, deceptions, limited choices and coercion” are factors which can vitiate voluntariness of consent apparently given, as Adebayo O. Adejumo asserts.[17] [Emphasis added]
In cases of deception as the case under review discusses, voluntariness of the apparent consent becomes a contentious issue and as mentioned above, the Anglo-American authorities have leaned towards the so-called “fraud in the factum” and rejected “fraud in the inducement” as a vitiating factor in sexual assault trials. However, a woman can be raped even though she is not mistaken by the identity of the man or the nature of the act; for instance where there is a gun to her head. That would definitely be rape by duress as this would certainly be a case of a threat of physical violence, negating consent. But what about other vitiating factors, asks Syrota [18]
The quest to answer this question would lead to an examination of the other vitiating factors of consent including undue influence which has received judicial blessing[19]. This factor vitiates consent due to the fiduciary relationship existing inter se and then, the controversial “fraud in the inducement.”
PART III:
Fraud in the Inducement Cases
This part addresses the less judicially favoured fraud in rape trials. As the different cases and scenarios discussed under this part reveal, the courts in Anglo-American jurisdictions are less persuaded to uphold convictions where the fraud being claimed by prosecution did not relate to the identity of the man or the nature of the act but rather hinged on an inducing factor which swayed the complainant into giving consent to the act of sexual intercourse.
“Unfortunately, all of us lie,” writes Licea and thus, “it is too much to ask prospective sexual partners to guess what another person—one they may not know very well—judges to be material for the purpose of deciding whether to engage in sexual intercourse.”[20] This thinking has largely influenced judicial decisions in the Common Law Tradition where judges have declined to hold defendants culpable of rape for telling lies to obtain sex. The same thinking has informed appellate courts’ tendency to quash jury convictions where accused persons were handed guilty verdicts.
Endorsing the decision in Papadimitropoulos, one proponent explains:
“Rape is an extremely serious offence—until recently, a capital offence and the dividing line between the non-violent forms of rape and mere fraud needs to be starkly drawn so that righteously indignant courts do not so widen the area of the crime as to make serious offences of the commonplaces of seduction, morally reprehensible though such conduct may be.”[21][Emphasis added].
Connor, in the above quote supports the limitation of fraud in sexual offences to the so-called “fraud in the factum,” asserting that any lies told in the process of inducement is merely “common places of seduction.”
Indeed, it would be most ridiculous to charge a man with rape if he falsely brags to his impending partner that he could go for an hour but lasts for a couple of minutes. If the man knew he could not go any longer than two minutes, yet, claimed he could go the hour and in reliance on his word and expecting an hour-long sex, the lady—only on that promise—consents, such a lie should not destroy her consent and render the man guilty of rape. Syrota, supra, expresses the same sentiments when he fears: “a man could be convicted, for example, if he persuaded a woman to sleep with him by pretending to be rich and famous, or to be in love with her.”[22]
False Marriage: Papadimitropoulos
What about inducing lies that change the lives of the victim forever? Must all perpetrators of sex fraud walk free because the courts fear the overbreadth effect? Despite scholars decrying judicial behaviour on this topic,[23] the Anglo-American courts remain adamant. This behaviour is manifested vividly in the Papadimitropoulos Affair where the appellant changed the status of the victim forever—from a pious virgin to an apparent fornicator through the deceit of the appellant, yet, the apex court declined to uphold the conviction.
The decision of Dixon’s Court (and subsequent decisions which relied on its ratio) suggests that deceit, which affects the character of the sex i.e. fornication or marital sex, is not a material fact to the Anglo-American courts. The present writer believes the decision in Papadimitropoulos effectively nullifies the sexual autonomy of victims, and their informed choice as to engage in pre-marital sex or abstain until marriage.
Can Contractual Sex Convert into Rape?
In studying “fraud in the inducement” which can destroy a woman’s apparent consent to sexual intercourse, another question which has burdened the courts on multiple occasions is that of duping sex workers. A prostitute only consents to sexual intercourse on the belief that she will be paid. Where a patron does not intend to pay her, yet, misrepresents that fact to the prostitute and after the intercourse absconds, is the prostitute’s apparent consent vitiated?
No.
And the courts have been strict on this assertion. Wills J in R v Clarence[24]reduced the point into these words:
“It would be childish to argue that the prostitute did not consent to intercourse merely because she had been duped into thinking that she had been paid for her services.”[25]
I agree.
The leading case in this area is R v Linekar.[26] The accused, “a 17-year-old unemployed youth” negotiated a £25 amount with a prostitute for sex. After the intercourse, he bolted because he had no money and never intended to pay for the transaction. The prostitute thereupon knocked on a door of a neighbouring flat where the intercourse took place, looking disheveled and reported that she had been raped. At trial, the prosecution led evidence to support her claim that the accused never intended to pay for the sex and therefore, her consent to the intercourse was destroyed by fraud.[27]
The trial judge, in directing the jury on the point of law, stressed the words of the prosecutrix:
“The woman, as I have reminded you just now —and I will go through her evidence in slightly more detail a little later —said, ‘I would never go ahead and have sexual intercourse with a man without payment first’…”[28]
The jury convicted Linekar on these facts holding that the absence of payment destroyed her consent.
The Court of Appeal quashed the conviction, relying simply on the rule as stated by Dixon, CJ that “consent demands a perception as to what is about to take place, as to the identity of the man and the character of what he is doing.”[29]
Where sex work is allowed
For the purposes of elaborating this point, a holistic approach needs to be taken, classifying such a transaction into two jurisdictions; one where sex work is legal and another where it is illegal. A jurisdiction where prostitution does not violate the laws can simply resolve the issue of a man duping a prostitute with fake cash as Wills J alludes or where he refuses to pay altogether. This becomes a simple breach of contract case and the matter is put to bed.
It is stated nowhere in Linekar or decisions that follow it that sex is a material fact to the complainants. The material fact where a man bolts after sex with a prostitute concerns the latter’s imbursement and not consent to the sexual activity; therefore, payment of general damages, legal cost and their initial contractual fee, resolves their grievance unlike the Papadimitropoulos Affair where pre-marital sex was a material fact to which the court ought to have averted its mind.
Syrota, supra, agrees. However, the author believes although “Linekar could not have been convicted of rape…he could nevertheless have been charged with and convicted of various lesser offences.”[30]
I disagree.
This is a breach of contract. Criminal courts would become inundated should all matters between private persons which can simply be resolved by private actions are brought within the realm of crime, requiring state funds to prosecute.
Jurisdictions which prohibit sex work
The other circumstance would be a jurisdiction which proscribes sex work. A woman who resides in a country or region which bars prostitution has no business in law or equity to claim any remedy if a patron refuses to pay her after sexual intercourse. The ancient maxim of ex turpi causa non oritur actio would prevent the courts from finding any basis to endorse her claims.[31] The same maxim will catch up with the man should the prostitute take the money and refuse to grant him his libido desires. He would be unable to either ask a court to compel her to give him intercourse or to refund his money.[32]
Many jurisdictions which prohibit sex work do so to protect public morality and so transactions which are not directly sex work but rely entirely on exchanging sexual favours for financial gain cannot be successfully prosecuted in these courts. The most recent decision of the High Court of Ghana in Deborah Seyram Adablah v Ernest Nimako and First Atlantic Bank[33]exemplifies this assertion.
As Nabarese, J points out in his ruling:
“Whatever the Respondent sought to benefit was her participation in an illegal and immoral act with the Applicant by being in a parlor relationship for financial consideration or gains, a relationship, the act of which was not, according to the Respondent herself, in conformity with societal norms. There is nothing, absolutely nothing glaring on the face of the pleadings that the Respondent has been able to point a single act performed outside the provision of sexual services or acts incidental thereto which included her duties in her parlor relationship with the Applicant. Therefore, the case comes within the rule that out of a forbidden or immoral act no cause of action can arise.”[34][Emphasis added]
Despite this being a civil claim, it suggests that a criminal action may not be supported either, where the man refuses to perform his responsibilities under an immoral contract. The woman’s consent under such a transaction cannot be destroyed by insufficiency of consideration from the man or lack thereof.
Morland, LJ explained further in the Linekar decision, saying:
“A man who promises a woman a fur coat in return for sexual intercourse, with no intention of fulfilling his promise, should not be guilty of rape…” [35]
Safe sex versus unsafe sex
The courts have also shown reluctance to permit conviction where the woman consented to safe sex but got something materially different from that to which she consented i.e. unsafe sex even where the life of the woman becomes endangered as a result of the unsafe sex (a danger/deception which was known to her partner).
Stealthing
This connotes a clandestine removal of a condom during sex. The act has grown notoriety with equal pushback from activist groups. A 2017 Yale study found, among others, that in addition to putting victims at risk of sexually transmitted infections and unwanted pregnancies, the survivors described experiencing “a violation of trust and a denial of autonomy, not dissimilar to rape.”[36]
In the United States, California became the first state to make it illegal to remove a condom without explicit consent, this was as recent as 2021, showing a blatant pussyfooting to criminalise inducing factors to sexual intercourse. Even in California, stealthing is classified as a civil offense rather than a crime, and victims are able to sue perpetrators directly in civil court.
STD/STI Status: R v B
Similar reluctance has met attempts to classify deliberate passing of Sexually Transmitted Diseases (STD/STIs) as rape, rightly so. In inducing a woman to have sex, the man may make representations such as he is free from any and all STD/STI and his partner, on that belief, may consent to intercourse. The question for the courts in this instance is that did the fraudulent claim of being free from disease affect the consent of the woman?
In R v B[37] when the UK Court of Appeal faced the question, it favoured the existing regime, holding that once the act of sex and the identity of the man was not lost on the woman, any other fraud could not vitiate her consent. Per the court, “a defendant’s HIV status is not relevant to whether a victim has freedom or capacity to consent to a sexual act. It therefore should have been excluded as unduly prejudicial.”[38] Such acquittals have received serious backlash from critics. For instance, Prof. Luis Chiesa[39] queries: “if rape is primarily conceived of as coerced sex, is it not evident that having sex without disclosing a serious STD should amount to rape?”[40]
Other arguments call for promulgation of other crimes to suit the offence instead of necessarily bringing it under the umbrella of rape. In the United States, some jurisdictions have taken this step and prosecutors have charged and successfully prosecuted people for criminal transmission of HIV.[41] The present writer holds the considered opinion that, in Ghana, the criminal code can be interpreted to convict persons who deliberately transmit STI/STDs during sex.[42] The crime need not be controversially captured under rape laws.
Fertility: R v Lawrence
Recently, the Common Law had another chance to review what sort of fraud can vitiate consent in sexual assault cases in the 2020 case of R v Lawrence[43]. The Court of Appeal declined the invitation and quashed the appellant’s conviction.
The victim had made it clear she did not want to become pregnant and would only consent to unprotected sex on that basis; consequently, appellant repeatedly assured her he had “had the snip.” The next morning, appellant texted her stating “I have a confession. I’m still fertile. Sorry.” The woman later discovered that she was pregnant and underwent a termination. On these facts, the jury delivered a guilty of rape verdict after hearing how the accused lied about having a vasectomy to obtain sex.
In setting aside the verdict, the Court of Appeal reasoned that the appellant’s lie about having a vasectomy did not deprive the complainant of the freedom to choose whether or not to have sex.
The court, in arriving at this decision, distinguished it from the 2011 Supreme Court decision in Assange v Swedish Prosecution Authority[44] which introduced conditional consent into Anglo-American jurisprudence. The case involved Assange who was indicted in Sweden (a country outside the Common Law Tradition) on inter-alia, rape and arrested in the UK. He had sex with women who consented on condition that he would wear a condom; he did not. The UK permitted the conditional consent rule and extradited him to Sweden to face trial.
This leaves the question open as to how the English or other courts in the Commonwealth would judge such a case should it be tried within the Commonwealth.
Gender Fraud: R v McNally
There is, however, one instance where the English Court of Appeal upheld a conviction on the basis of “fraud in the inducement.” The defendant, a biological female posed as a boy online and connected with the complainant, also female. When they met in person, she continued to pose as a boy and penetrated the complainant with a strap on dildo. The complainant learned the truth and reported; whereupon the accused was charged with sexual assault by penetration and convicted.
The court relied on the conditional consent principle set in Assange, supra, and upheld the conviction on appeal. In the Lawrence case where the court reverted to its old position, rejecting fraud in the inducement as a vitiating factor, it said the McNally case was different because the complainant consented to sex with a boy but had been penetrated by a girl (of 17 years) and therefore, the circumstance was materially different as to vitiate consent.
In an attack on the Court of Appeal’s decision in Lawrence, Mark Dsouza asserts that the court:
“…Fell into serious error in its analysis. Its finding that only a deception about or failure to disclose a matter ‘sufficiently closely connected to the performance of the sexual act, rather than the broad circumstances surrounding it’ can vitiate consent…is flawed.”[45]
According to Dsouza, the Court of Appeal diminished the progress made with Assange. Indeed, in its display of semantics, viz, “only a deception, sufficiently closely connected to the performance of the sexual act,”—and not circumstances surrounding it, material though they may be—can vitiate consent, the Court of Appeal, silently reversed jurisprudence to the pre 21st Century days, thereby permitting rape by deception, so to speak.[46]
Deceit in promise to marry: Gaurav v State of Maharashtra
Not all countries in the Common Law Tradition are blinded. In India, the courts would not say to a victim who has been duped into having sex with a person she would otherwise have refused but for a fraud in the inducement that ‘go home, we have no remedy for you.’ The recent decision in Gaurav v State of Maharashtra[47] stresses this point. The brief facts are similar to the Papadimitropoulos affair.
The appellant and the complainant had a relationship where the appellant promised to marry the complainant. However, she found out he got engaged to another lady; whereupon she lodged a complaint of inter alia, rape. The prosecution argued that her consent to sex during the pendency of their relationship was destroyed since the consent was based on a promise to marry.
The appellate court, in setting aside the conviction, distinguished between an outright lie to a woman to get her consent on one hand and sex during a thriving relationship on another. In this case, the man was willing to marry the lady but his family would not permit him. The records also showed that the lady had earlier turned down the proposal of marriage from the man while their relationship continued. In quoting Dhruvaram Murlidhar Sonar v State of Maharashtra,[48] the court said:
“Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the [accused] had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape.”[49][Emphasis added].
The court continued:
“There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the [accused] had any mala fide intention and if he had clandestine motives, it is a clear case of rape.”[Emphasis added]
The exposition in the above quote succinctly captures a jurisdiction conscious about sexual autonomy, notwithstanding its ties to the Common Law.
A Look beyond the Common Law
Unlike the Anglo-American jurisdictions, courts outside the Common Law Tradition have no qualms convicting cunning rapists. This is evidenced in the Assange decision where the UK relaxed its strict rules on “deceit in the factum” to accommodate indictment of the accused in order to extradite him to Sweden—a non-Common Law territory for trial, political though the decision may be.
State of Israel v Kashur
To reiterate, at the heart of the concept of consent and the law on rape is that the woman is at liberty to decide who penetrates her. Her choice of sexual partner may be influenced by what suitors may deem perfunctory, but if this reason is so material to her, then it may not be interfered with and the courts have no business telling her that her reasons for refusing sex to Mr. A are baseless. On that point, it would mean where Mr. A, knowing that a lady would never lay with him, unless certain circumstances are met or that she would never consent to relations from a person from a class to which he belongs, and yet, the man misrepresents these material facts to the woman, the apparent consent to sex will be destroyed and the man should be guilty of rape. This is the chance Dixon’s Court missed in Papadimitropoulos, and set straight in Assange and McNally.
The Jerusalem District Court in State of Israel v Kashur[50]was also presented with one of these fraud in the inducement circumstances. The accused, knowing that many Jewish women in Israel would never consent to sex with an Arab, lied to the complainant that he was a Jew and obtained her consent on basis of that deception to engage in sexual intercourse. The prosecution acknowledged that the sexual act itself was consensual, but accused the defendant of misrepresenting himself. The court agreed, sentencing Kashur to 18 months imprisonment. [51]”
“If she hadn’t thought the accused was a Jewish bachelor interested in a serious romantic relationship, she would not have co-operated,” the court held.
But this decision is special in nature.
“A poll conducted in 2007 by Israel’s Geocartography Institute found that more than 50 percent of Israeli Jews thought marrying an Arab was ‘equal to national treason’. Jews are legally forbidden to intermarry in Israel,” Aljazeera, reports.
Expectedly, the Kashur decision has faced backlash from scholars, even in Israel with critics citing the decision for racism with some going as far as to assert that the decision amounts to policing of nationality (race).[52]
Racism has no place in the world, and in the 21st Century, any and all attempts must be made to diminish its effects on society. Be that as it may, even racists remain entitled to make decisions as to whom to give themselves in the pleasures of sex.[53] And despite progressive attempts to unify all of mankind; race, religion, creed and the like remain the fulcrum of people’s lives and nobody should be allowed to interfere with such autonomy under false pretenses which form material parts of the lives of their victim.[54] Such deception, Green, supra says is “used as a means to violate some aspect of another’s sexual autonomy.”[55]
But Israel criminalises fraud in the inducement beyond such fundamental reasons. The criminal code forbids “intercourse with a woman…with the woman’s consent, which was obtained by deceit in respect of the identity of the person or the nature of the act.”[56] Under current Israeli case law, flowing from this statute, the standard for evaluating the importance of the deceptive characteristics which induces a woman is objective but not as strict as the common law which has restricted it two the two types of fraud in the factum, i.e. identity of the man and nature of the act.
Justice Rubinstein states the rule in Saliman v State of Israel[57]asserting that apparent consent would be destroyed where:
“A man not telling the truth in regard to characteristics critical in the eyes of a reasonable woman, and, as a result of this false representation, the woman had engaged in sexual intercourse with him.”
What constitutes such characteristics is left to be decided on a case-by-case basis.[58] In Saliman, the Israeli Supreme Court upheld the conviction of rape by fraud where defendant procured sex from the complainant by falsely claiming to be a Housing Department agent who could help her obtain an affordable apartment. Such a transaction would not be justiciable in Ghana because the agreement to use public office for such private gain is itself unenforceable and all rights and responsibilities flowing from the transaction are null and void.[59]
PART IV:
Seduction or rape by deceit: Finding the nuances
The question as regards the liability of an accused in a rape by deceptiontrial rests in the gravitas of the lie and its consequential effects on the life of the complainant[60]. As illustrated earlier, lies such as “I can go all night” or lies about being in love with one’s partner or promises of gifts to an impending sexual partner are merely “common places of seduction.”[61]These are puff statements and are not justiciable.[62] Deciding to have sex on any of these premises, cannot drastically alter the woman’s life, either to the standards she hold herself or to those of societal standards which she holds dear or which are relevant to the jurisdiction of the trial or offense.
However, there are some lies which cannot just be made to slide. A woman who decides she wants no part in lesbian sex should not be cajoled into engaging in same without consequences for the perpetrator. The court got this right in McNally where it convicted the accused. Similarly, a woman who says she wants no part in pre-marital sex should not be defrauded of her virginity without the accused facing the music, Dixon, CJ’s Court misled itself in the instance when the Papadimitropoulos Affair was submitted to it.
Consummation of marriage is so crucial that in its absence, a marriage is not even recognized in many jurisdictions. It follows such position then that pre-marital sex is materially different from sex in marriage. Where a chaste woman consents to being penetrated in consummating her marriage yet wounds up with nothing short of fornication, the nature of the act to which she consented becomes materially different from that in which she engaged, which should render the defrauding man guilty of rape by deception.
And so why did Papadimitropoulos walk free?
The courts are reluctant to expand fraud in rape cases beyond the scope discussed—fraud in the factum, because of the fear of overbreadth. In criminal law, overbreadth refers to making criminal statutes so broad or vague that any conduct even remotely connected to the act can be subsumed under it and charges brought against a person to that effect.[63] But then, overly narrowing the scope of criminal statutes can equally lead to culpable accused persons walking free as in the Papadimitropoulos Affair.
In proposing a guide that could draw the distinction between mere inducement and actual fraud in a bid to avoid the overbreadth effect, Professor Pollard Sacks writes:
Materiality requires that the false statement upon which the plaintiff relied (1) relates to a past or present fact, (2) relates to a material aspect of the agreement, as opposed to a collateral aspect, (3) is not mere puffing and (4) is not a mere prediction of future events over which the defendant lacks control.[64]
Despite acknowledging the ills of the overbreadth effect, Licea, supra, asserts that “any predetermined list of material misrepresentations or omissions will be under inclusive and therefore will not fully protect consent.” He writes:
“Different subcultures and persons have vastly different ideas about the material or requisite characteristics of a sexual partner. A singular list would likely reflect hegemonic cultural expectations and not respect minority views. Consent to sexual intercourse ultimately depends on the participants and their preferences.”[65]
The present author recommends that, in the absence of strict rules to determine what should be considered material or fundamental in questioning if deceit in the inducement vitiated consent, the courts must critically examine the other circumstances surrounding the complainant’s foul cry.
Circumstantial Evidence and its role in Papadimitropoulos
Examining these adjoining circumstances can easily determine the mens rea of the accused in the entire conundrum. In his explanation of circumstantial evidence, Opoku-Agyemang says it “may be defined as any fact from the existence of which the judge or jury may infer the existence of a fact in issue.”[66] According to the author, “circumstantial evidence is important because if the rules were to be that the only evidence, which could be adduced, should be direct evidence, many claims would fail for lack of proof.”[67]
In its quest to hold onto existing regime, the High Court of Australia ignored blatant circumstantial evidence which proved John Papadimitropoulos set out to do nothing but dupe the complainant. He stole her money, wrote back to her apologizing for his actions and with a promise to make it right. In fact, Papadimitropoulos even tricked the owner of the lodging house where the intercourse took place. It is stated:
“[He] told Mrs. Fatouris they were married because otherwise they would not have obtained the room. The applicant said that he sought to have intercourse with Dena but she refused until Sunday”[68]
These facts contribute to the prosecution’s assertion that the appellant is a con artist who set out to trick the complainant into losing everything she held dear; thus, the court could not be more wrong in their conclusion if they tried.
Lucy Harris, supra, in her exposition on consent and rape trials agrees, arguing that courts should consider the totality of the circumstances before, during and after the act of intercourse in deciding whether the victim validly consented. This, the Anglo-American courts have shied away from doing in a stubborn loyalty to a legally flawed, morally corrupt and jurisprudentially deficient ratio decidendi popularized by Dixon, CJ.
PART VI:
The Ghanaian Dilemma
The Ghanaian criminal code falls short of defining consent. In Section 14 however, it gives a list of circumstances where consent can be vitiated of which deceit is a part. To the extent of the present writer’s search, the courts in Ghana are yet to be faced with the question of the so called fraud in the inducement. No comment can be made thus as to whether “deceit” as mentioned in Section 14 of the Criminal Offences Act, 1960 (Act 29) would be given a true and proper meaning or whether the court would toe the persuasive authority of Papadimitropoulos.
Nonetheless, the Act’s refusal to define consent has courted some backlash. Prof. Elizabeth Achampong and John Burke Baidoo write:
“…the fact that Ghana’s penal law does not specifically define consent contributes to the courts’ reliance on its own presumptions and assumptions which may only end up denying justice to victims of sexual offences”.[69]
The authors’ criticism follow the courts’ reliance on circumstantial evidence, corroboration and the like to support the victim’s claim that they did not consent to sex. They quote State v Gyimah[70] in support. In this case, a “young girl well over eighteen years” was the alleged victim. She was caught “red-handed” by her mother having sex. She claimed she did not consent and that she shouted and struggled with the accused to no avail. The other tenants in the house testified in court that they were in the house on the day of the alleged crime but heard no cries of distress. The accused was acquitted with the court finding there was consent.
This is how the judge described the scenario:
“…the conduct of the girl herself indicates her willingness. She asks the court to believe that she walked straight into the accused’s room in all innocence. There is no evidence that the accused induced her by a ruse or deceit to join him in the room. There is no evidence that when she shouted the accused attempted to place his hands on her mouth. The extreme improbability that the accused would be physically capable of having long and complete connection by force prior to and during the arrival of the mother and sister. In my view, any genuine resistance by the girl must have thwarted his attempt. The girl, who according to the evidence, was pressed firmly by the accused on the shoulder had the free and full use of her limbs but never slapped or attempted to kick the accused. Her allegation that the accused had connection against her will and in spite of her shouts and struggles is almost incredible. The evidence satisfies me that if the complainant cried or shouted at all such cries must have been raised only after her mother and younger sister had suddenly seen her upon entering the room. When she found that she had been caught in a shameful and disgraceful act red-handed by her mother out of a sense of shame she tried to put up an act by means of false cries in the room to simulate distress.”[71]
In criticizing Lassey J’s comments in Gyimah, Achampong and Baidoo write:
“The words of the judge in State v Gyimah (supra) show that in a rape case where fierce resistance is not proven, the court may view the victim as a woman who actually wanted sex but cried ‘wolf’ upon being discovered in a sex act in order to avoid disgrace. This attitude towards women makes a rape claim a significant challenge for women in Ghanaian society.”[72]
The authors’ stressing of the absence of a definition of consent in the criminal code underscores an important lacunae in our criminal jurisprudence, one in need of urgent fixing.
PART VII:
CONCLUSION
It is submitted that consent to sexual activity is an individual choice and such consent should not be slaughtered on the altar of societal approvals. Fornication, not being a societal shun in Australia did not permit the court to allow the victim’s tormentor in Papadimitropoulos v The Queen to walk free for the foregoing reasons discussed in extenso. The complainant’s dignity should have been upheld as inviolable[73] and thus violated by the appellant despite mitigating factors of the absence of force.
Moving on, legislatures in the Common Law Tradition which are yet to do so, ought to consider enacting laws which protect consent, especially from being manipulated by serious kinds of fraud. This should serve as a guide to courts in their quest to decide if some deception should vitiate apparent consent or be treated as seduction. In so doing, the lawmakers and the courts should be guided by what is material to the consent and what is merely perfunctory. Such questions may be better left to juries to decide as questions of fact with the trial judge merely serving as an interpreter of the law regulating the specific circumstance.
Finally, the discussion serves as a benchmark that their Lordships’ interpretation on the law of consent in sexual assault matters in Papadimitropoulos sets a dangerous precedent or at best has become anachronistic and should be revised by lawmakers in Common Law Jurisdictions along the lines already argued.
[1] The Highest Court in Australia is the High Court—unlike many other Anglo-American courts who name their apex court the Supreme Court.
[2] Azumah Oswald, “Tracing the Nuances in Extreme Provocation & Justifiable Use of Force in Ghana’s Criminal Jurisprudence: A Golden Jubilee Tribute to Melfa v. The Republic” (2022) 14 UGSLJ 26.
[8] R v Dee [1884] 14 LR: Impersonating the husband of a woman to get her consent would be rape
[9] Stuart Green, “Lies, Rape, and Statutory Rape” in Sarat A (Ed), Law and Lies: Deception and Truth-Telling in the American Legal System (Cambridge University Press, 2015) 194-253.
[23] See: Bryan H. Druzin & Jessica Li, The Criminalization of Lying: Under What Circumstances If Any, Should Lies Be Made Criminal? 101 J. CRIM. L. & CRIMINOLOGY 529, 530 (2011).
[27] Derry v Peek. (1889) LR 14 AC 337, [1889] UKHL. In this classic case the House of Lords defined fraud as a statement made where the defendant: (i) knows the statement to be false, or. (ii) Does not believe in the truth of his own statement, or (iii) is reckless as to its truth or otherwise.
[31] The Latin maxim means a person cannot benefit from their own wrongdoing or that a person cannot pursue a cause of action which arises from their own illegal act.
[39] Professor of Law and Director of the Buffalo Criminal Law Center, University at Buffalo School of Law, The State University of New York.
[40] Luis E. Chiesa, “Solving the Riddle of Rape-by-Deception” (2017) Yale Law & Policy Review 407.
[41] The Center for HIV Law and Policy reported 279 prosecutions and arrests for HIV exposure in the United States from 2008 to 2016. See Positive Justice Project, Prosecutions and Arrests for HIV Exposure in the United States, 2008–2016, CTR. HIV L. & POL’Y (Jan. 18, 2017), http://www.hivlawandpolicy.org/sites/www.hivlawandpolicy .org/files/Chart%20of%20U.S.%20Arrests%20and%20Prosecutions%20for%20HIV%20Exposure%202008-2016%20%28January%202017%29.pdf [http://perma.cc/ 29A6-NDBJ].
[42] See: Sections 69, 76 of the Criminal Offenses Act, 1960 (Act 29). A person who intentionally and unlawfully causes harm to any other person commits a second degree felony. AND Harm is unlawful which is intentionally or negligently caused without any justifications mentioned in Chapter One of this Part. See: Sections 30 to 45
[50] CrimA 5734/10 (Jerusalem District Court) (published in Takdin, Jan. 25, 2012) (Israel) (English translation obtained from Volokh Conspiracy blog, http://www.unz.org/Pub/VolokhConspiracy-
(2010oct-00078)
[51] AlJazeera, Israel jails Arab for deceit rape (22July2010). https://www.aljazeera.com/news/2010/7/22/israel−jails−arab−for−deceit−rape >. After an appeal was submitted to the Supreme Court, Kashur’s prison sentence was reduced from 18 to nine months. The defense raised arguments against the application of the offense of rape by deception, but the Court refused to address them on the merits because the defense only appealed against the sentence and did not seek to withdraw from the plea bargain. CrimA 5734/10 Sabbar Kashur v. State of Israel 1474(1) PD para. 18 (2012) (Isr.) (Judge Meltzer’s sentence
[52] Aeyal Gross, Rape by Deception and the Policing of Gender and Nationality Borders, 24 TUL. J.L. & SEXUALITY 1, 1-2 (2015)
[53] John Spencer ‘Sex By Deception’, (2013) 9 Arch Rev 6-9, 6
