9 U. Queensland L.J. 59 (1975-1976)
Fraudulent Impersonation and Consent in Rape

handle is hein.journals/qland9 and id is 65 raw text is: The University of Queensland Law Journal, Vol. 9, No. I

Fraudulent Impersonation and Consent in Rape
JOCELYNNE A. SCUTT*
Introduction
One problem relating to consent in rape which has given rise to considerable
confusion and numerous conflicting judgements' is that regarding fraud. Where
consent to the particular act has in fact been given by the woman concerned,
is the charge of rape thereby ousted, or does the fraud vitiate the consent, thus
validating a charge that the man has had carnal knowledge of the woman
without her consent?
Confusion as to vitiation or validity of consent has arisen where the nature
and character of the act has been misrepresented by the actor;2 where fraud as to
inducement to consent has been mooted;3 and where fraud as to the identity of
the person doing the act has arisen.4 In the latter case, decisions have been made
in such a way as to appear fundamentally wrong in law,' and have been rec-
tified by the passage of legislation.6 Rather than rectifying the situation,
however, such statutes have simply compounded the error by limiting unneces-
sarily the fraud as to identity which vitiates consent.7 Both commonsense and
good law require a revision of mistaken legislation which has itself been based
on a mistaken interpretation of law.
Case Law Background
In R. v. Jackson (1822) Russ. & Ry. 487 the defendant was convicted of
burglary with intent to commit rape, the complainant being a married woman
into whose bed he had introduced himself whilst she was sleeping. The question
of whether a man could be convicted of rape where the woman did not im-
mediately resist him, in the belief that he was her husband, was considered. Four
of the judges concluded that such fraud would vitiate consent, and thus that the
charge of rape should in such a case be sustained. The eight remaining judges
held that such could not be rape. However, several of these intimated that if such a
case should occur, the jury ought to be advised to bring in a special verdict.8
* LL.B. (Western Australia); LL.M. (Sydney); LL.M. (Michigan); Dip. in Juris. (Sydney);
Research Scholar, University of Cambridge.
1. See, for example: Jackson (1822) R. & R. 487: Saunders (1838) 9 C. & P. 265: Williams (1838)
C. & P. 286: Clarke (1854) Dears 397: Barrow (1868) L.R. I C.C.R. 156: Dee (1884) 15 Cox
579: Harms (1944) 2 D.L.R. 61: Papidimitropolous (1957) 98 C.L.R. 249.
2. Cawe (1850) 1 Den. 580: Flattery (1877) 2 Q.B. 410: Williams (1923) 1 K.B. 340.
3. Papidimitropolous (1957) op.cit.
4. Dee (1884) op.cit.: Papadimitropolous (1957) op.cit.: Galliene (1964) N.S.W.R. 919.
5. The basis of this submission will be discussed post.
6. E.G. Criminal Law Amendment Act 1885 (U.K.): where personation of a husband leads to con-
sent on the part of a wife to sexual intercourse renders that act rape on the part of the personator.
(See also: s.1(2) Sexual Offences Act 1956 (U.K.) based on Criminal Law Amendment Act.)
7. It is submitted that the limitation of personation to the husband in the legislation has come
about as the result of fundamentally unsound decisions in law: that the statutes thus limiting
cases of personations are unnecessary if the correct reading of the common law is applied: and
that the correct reading of the law would result in a wider area of personation rendering an act of
intercourse procured by such means to be rape.
8. Dallas, C.J. is stated in the report to have '... pointed out forcibly the difference between com-
pelling a woman against her will, when abhorrence which would naturally arise in her mind was
called into action, and beguiling her into consent and co-operation.' Presumably it was by mak-
ing this distinction that he wished to justify the decision that in the fraudulent situation the man

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