The offense of rape: A case of obtaining consent through deception

Abstract

Currently, the offense of sexual assault was categorized into four district constituent elements of the offense: 1) the use of threats by any means whatever; 2) the use of physical force; 3) taking advantage of person in a state of inability to resist, and 4) inducing a person to believe by mistake that the offender is another person. However, offences arising from deception, whether through fraudulent stratagems to gain trust or misrepresentation of the essence elements of the act to obtain their consent, are not explicitly as a statutory modality of commission under the aforementioned section. This article aims to analyze the determinacy and appropriateness of interpretative framework applied to Section 276 of the Criminal code. The analysis conducted through critical review of the letter of the law, legal doctrine, and judicial rulings of Supreme Court. Furthermore, in adherence to the principle of strict construction of criminal law (Lex Stricta), this study found there were two district modalities of deception employed to vitiate or procure consent. These included fraud in the factum and fraud in the inducement. The author proposed an amendment to Section 276 of the Criminal Code to encompass deceptive means used to procure consent, thereby removing the current limitation that restricts the modalities of commission to only the four specified cases. The law could be restructured so that the existing modalities serve merely as illustrative examples of coercion or lack of consent. Another approach is to enact a specific provision clearly delineating which forms of deception used to procure consent constitute an offense. The author contends that fraud in the factum (deception regarding the nature of the act) should be criminalized, as it involves a fundamental misconception of the act's essential nature. Conversely, fraud in the inducement (deception regarding motive) should not be deemed a criminal offense, as it does not mislead the victim as to the sexual nature of the act itself, but serves merely as a collateral inducement for participation.