Fraud in the First Degree: BBC’s Undercover, Sexual Assault and the Vitiation of Consent
“Violence against women is as much a matter of equality as it is an offence against human dignity and a violation of human rights.”
- Justice Claire L’Heureux-Dubé
“Sexual assault is…an assault upon human dignity and constitutes a denial of any concept of equality for women.”
- Justice Peter Cory
“It must also be borne in mind that the investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules. The authorities, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceit and should not through the rule be hampered in their work.”
- Justice Antonio Lamer
If a person tells a lie in order to seduce or persuade another into having sex…and it works, should such behaviour amount to a criminal act? If the answer is affirmative, should any lie or series of lies, lead to criminal liability? A recently created BBC television series, Undercover provides a popular culture depiction of when lying may be taken too far.
In the six-episode series, English barrister Maya Cobbina (played by Sophie Okonedo) meets and eventually falls in love with Nick Johnson, an alleged writer and athlete (played by Adrian Lester). It turns out that Johnson is an undercover police officer assigned to spy on Maya and her political/community activities. He too eventually falls in love with Maya and appears to have left the police force for many years. Together, they have three children who grow up to be teenagers. Maya and the children are unaware of Nick’s true identity (for much of the series). After Maya is hired as the Director of Public Prosecutions, she pursues an investigation into the killing of an old friend and community activist (Michael Antwi) while in police custody. At this point, Nick’s former undercover unit handler re-enters his life and coerces Nick to obtain information about Maya’s work and her investigation into Antwi’s death. As the story progresses Maya confronts Nick with her discovery that he has assumed the identity of an individual who died as a child. He confesses. Maya then accuses Nick of stealing her life. In one particularly visceral scene, the following exchange ensues:
Maya: You raped me.
Nick: What? No.
Nick: No, Maya, I…
Maya: Stop saying my name! You are a rapist. I gave my cons[ent]. I fell in love with
someone who isn’t you. Who are you?
Undercover was inspired by revelations that actual undercover British police officers pursued long-term relationships with various women, and in some cases had children with them. The objective was to spy on these women and the protest group(s) to which they were members or affiliated. Relationships between the undercover officers and their targets lasted several years. After such relationships became public and there was some outcry, new rules have since been formulated which forbid intimate sexual contact except in extenuating circumstances. A lawsuit was also filed by many of the women, with whom relationships were formed and a settlement was reached in late 2015 that involved both monetary compensation and an apology by the state. As part of the apology, an official for the Metropolitan Police Service stated:
I acknowledge that these relationships were a violation of the women’s human rights, an abuse of police power and caused significant trauma. I unreservedly apologise on behalf of the Metropolitan police service. I am aware that money alone cannot compensate the loss of time, their hurt or the feelings of abuse caused by these relationships.
It does not appear that any police officers were convicted or much less charged with sexual assault in these cases. Drawing from the dialogue above between Maya and Nick, we might ask, should undercover police operations that involve officers sleeping with targets, who are unaware that they are dealing with undercover state agents, be considered criminal? In cases such as these, does the act of misrepresenting one’s identity in such a substantial and fundamental way amount to fraud vitiating consent to sex? Or put another way, should the scope of “fraud”, in the context of sexual assault, be expansive enough to encompass substantial deception by undercover officers that leads to a sexual and intimate relationship with a target?
There is no one simple answer to this given the numerous criminal statutes and jurisdictions around the world. However, given my familiarity with it, I shall draw on Canadian criminal law for some assistance in thinking about these matters. Typically, sexual assault involves an unwanted sexual touching. The Supreme Court of Canada has broken this down into three components – (1) a touching; (2) of a sexual nature; and (3) an absence of consent. The absence of consent is determined from a purely subjective standpoint on the part of the complainant at the time of the touching. Consent relates to the specific sexual act or acts in question. The prosecution must also demonstrate that the accused intended to engage in the touching knowing that the complainant did not give consent or were reckless or willfully blind with respect to consent.
Critical to the scenario posed is the matter of consent. Canadian law recognizes that consent can be vitiated by fraud. Section 265(3)(c) of the Criminal Code provides “no consent is obtained where the complainant submits or does not resist by reason of … fraud.” The Supreme Court of Canada has articulated that there are two components to demonstrating fraud in this context. First, there must be an act of dishonesty – this may include the non-disclosure of important facts. Second, the dishonest act must also result in a deprivation or risk of a deprivation amounting to serious bodily harm. The Supreme Court of Canada originally formulated these elements regarding fraud vitiating consent in R v Cuerrier – a case concerning an accused who failed to reveal information about his HIV status to two complainants prior to having sexual intercourse.
More recently, in R v Hutchinson, the Court applied these elements in a case where the accused agreed to wear condoms when having sex with the complainant but unbeknownst to the latter, the accused intentionally damaged the contraceptives by poking holes in the condom. This resulted in the complainant becoming pregnant. The Hutchinson Court concluded that there was clearly a falsehood – the accused’s failure to disclose that he pokes holes into the condoms thus compromising their contraceptive value. Second, with respect to the element of a deprivation leading to a “significant risk of serious bodily harm”, the Court noted that this did not have to address only harm in the “traditional sense” (whatever this means), it also “includes at least the sorts of profound changes in a woman’s body — changes that may be welcomed or changes that a woman may choose not to accept — resulting from pregnancy.” The Court in Hutchinson asserted that while the Cuerrier Court was addressing the specific risk of sexually transmitted diseases causing the harm in question, this “did not foreclose the possibility that other types of harm may amount to equally serious deprivations and therefore suffice to establish the requirements of fraud under s. 265(3)(c).” The Court stated: “We conclude that where a complainant has chosen not to become pregnant, deceptions that deprive her of the benefit of that choice by making her pregnant, or exposing her to an increased risk of becoming pregnant by removing effective birth control, may constitute a sufficiently serious deprivation for the purposes of fraud vitiating consent under s. 265(3)(c).” More critical to the analysis concerning identity fraud in the undercover police scenario illustrated in Undercover, the Court stated that the following:
This application of “fraud” under s. 265(3)(c) is consistent with Charter values of equality and autonomy, while recognizing that not every deception that induces consent should be criminalized. To establish fraud, the dishonest act must result in a deprivation that is equally serious as the deprivation recognized in Cuerrier and in this case. For example, financial deprivations or mere sadness or stress from being lied to will not be sufficient.
It is worth noting that in Cuerrier, Justice Cory, writing for the majority was concerned that without the requirement of a significant risk of serious bodily harm, an overexpansion of what constituted fraud might criminalize many fraudulent representations, which, however immoral should not be criminalized. Justice Cory hypothesized the following:
Let us assume that [a male accused] lied about his age and consensual sexual act or acts then took place. The complainant testifies and establishes that her consent would never have been given were it not for this lie and that detriment in the form of mental distress, had been suffered. Fraud would then be established as a result of the dishonesty and detriment and although there had been no serious risk of significant bodily harm a conviction would ensure.
Justice Cory posited:
The same result would necessarily follow if the man lied as to the position of responsibility held by him in a company; or the level of his salary; or the degree of his wealth; or that he would never look at or consider another sexual partner; or as to the extent of his affection for the other party; or as to his sexual prowess. The evidence of the complainant would establish that in each case the sexual act took place as a result of the lie and detriment was suffered. In each case consent would have been obtained by fraud and a conviction would necessarily follow. The lies were immoral and reprehensible but should they result in a conviction for a serious criminal offence? I trust not. It is no doubt because of this potential trivialization that the former provisions of the Code required the fraud to be related to the nature and quality of the act.
Drawing from these passages from Hutchinson and Cuerrier, one can deduce here that the Court is concerned with over-criminalizing all forms of fraud in connection with sexual intercourse. Yet, I sense that there may be instances of fraud that the Court might be willing to recognize as rising to the level of warranting criminal liability. When one considers the idea of police officers going under such deep cover lasting for numerous years, while pursuing long term relationships and having children (in some cases) with their targets, we are no longer just referring solely to financial deprivations, or mere sadness or stress from having been lied to. We are speaking of types of potentially significant emotional and psychological harm (which in turn has physical manifestations). It is perhaps all of these things and much more simultaneously. When children are added into the mix, it is fair to say that many would not want or choose to have children in such circumstances. The fraud involved deprives them of the autonomy to choose not to have a relationship or bring children into the world under such circumstances. What we have here is not just one or two “small” lies, but a rather comprehensive constellation of intersecting falsehoods. To reiterate a message from the Hutchinson Court, Cuerrier “did not foreclose the possibility that other types of harm may amount to equally serious deprivations….”
Drafters of criminal statutes may not have contemplated such behaviour from police officers and the degree of fraud implicated in these instances. Nevertheless, if, as in the Canadian context, fraud may vitiate consent, courts should adapt their understanding accordingly. Cuerrier addressed the context of fraud in connection with the failure to disclose one’s HIV status. The concept of harm had to be re-examined when dealing with Hutchinson in connection with an unwanted pregnancy. Similarly, should it ever arise, courts should adapt their understanding of fraud where there is a substantial degree of fraud in connection with misrepresenting one’s identity and life history of the kind illustrated in Undercover and more importantly the real life narratives upon which it was based. If the Criminal Code provision protects values founded within the Canadian Charter of Rights and Freedoms such as autonomy (and respect for autonomy is something that is undoubtedly not unique to Canadian law), this should protect targets of police investigations from sexual assault.
What are your thoughts? Should police officers who engage in this kind of behavior be held criminally liable?
1. R v Ewanchuk,  1 SCR 330 at para 69, 169 DLR (4th) 193, L’Heureux-Dubé, concurring.
2. R v Osolin,  4 SCR 595 at 669, 109 DLR (4th) 478, Cory J.
3. Rothman v The Queen,  1 SCR 640 at 697, 121 DLR (3d) 578, Lamer J, concurring.
4. David Barrett, “Undercover police to be banned from having sexual relationships with targets” The Telegraph (29 October 2013), online: The Telegraph <http://www.telegraph.co.uk/news/uknews/crime/10413086/Undercover-police-to-be-banned-from-having-sexual-relationships-with-targets.html>; Vera Baird, “The sexual behaviour of undercover police fits the definition of rape” The Guardian (28 June 2013), online: The Guardian Unlimited <https://www.theguardian.com/commentisfree/2013/jun/28/sexual-behaviour-undercover-police>.
5. Rob Evan, “Police apologise to women who had relationships with undercover officers” The Guardian (20 November 2015), online: The Guardian Unlimited <https://www.theguardian.com/uk-news/2015/nov/20/met-police-apologise-women-had-relationships-with-undercover-officers>.
6. Ibid [emphasis added].
7. Ewanchuk, supra note 1 at para 23.
8. Ibid at para 25.
9. Ibid at para 26.
10. R v Hutchinson, 2014 SCC 19 at paras 54-55,  1 SCR 346
11. Ewanchuk, supra note 1 at para 23.
12. Hutchinson, supra note 10 at para 67.
13. Criminal Code, RSC 1985, c C46, s 265(3)(c).