Expanding Liability for Sexual Fraud Through the Concept of ‘Active Deception’: A Flawed Approach

This article considers recent judicial expansion of criminal liability for sexual fraud. This has occurred through the criminalisation of words or conduct considered to amount to ‘active deception’. In contrast, non-disclosure of information does not attract criminal liability. The article argues that (i) the distinction between active deception and non-disclosure of information provides an inadequate basis for setting the parameters of criminal liability for sexual fraud, and (ii) the distinction is vulnerable to analytical collapse and therefore criminal law overreach. In relation to (i), five justifications for reliance on the distinction will be considered and rejected. These are that criminalisation of active deception is less offensive to principles of liberty and causality than criminalisation of non-disclosure and that active deception is more morally culpable, involves a greater violation of sexual autonomy and/or is more harmful than non-disclosure. In developing this argument the article will draw on examples of sexual intimacy where one of the parties is HIVþ. In relation to (ii), the article will focus on application of the distinction to ‘gender fraud’ claims. The example is a useful one because it serves to dramatise the problem of judicial slippage between active deception and non-disclosure.