Can deceptions as to the 'quality' of an act vitiate consent to touching?
Tabassum (2000) claimed that deceptions as to the ‘quality’ of an act could vitiate consent to touching. But other authorities suggest that only deceptions as to the nature of the act or the identity of the actor can vitiate consent.
Fact patterns
- V consents to being touched in the context of a massage. D masseuse applies excessive force to hurt V.
- D deceives V into believing that D has medical qualifications. Under that guise, D performs a ‘medical exam’ which involves touching V.
Introduction
Touching another person is prima facie unlawful (a battery) without consent.1 But V might consent to being touched under a misapprehension as to D’s reason or motive for that touching. Not every such misapprehension is capable of vitiating consent under the common law. Classically, only misapprehensions induced by D’s deception as to the ’nature of the act’ or the ‘identity of the actor’ were deemed capable of vitiating consent. But Tabassum (2000) suggested that a deception as to the ‘quality’ of the act could also vitiate consent.
The traditional categories: ’nature’ and ‘identity’
The classic English authority on the effect of deceptions on consent is Clarence (1888), in which D infected his wife V with gonorrhoea. One question was whether D’s failure to disclose his disease vitiated V’s consent to the touching and might therefore amount to a non-fatal offence. Stephen J there proposed the now classic test:
the only sorts of fraud which … destroy … consent … are frauds as to the nature of the act itself, or as to the identity of the person who does the act
(Stephen J, 44)
The classic position was recently re-emphasised in Melin (2019):
for offences against the person a defendant’s fraud as to conduct will not negative the victim’s consent unless it deceives the victim either as to the defendant’s identity or as to the nature of the act.
(Simler J, [27])
Tabassum: ‘quality’ deceptions
In Tabassum, D implied to V that he had medical qualifications. Under this guise, he performed a breast exam upon V with her apparent consent. Upon trial for indecent assault, D claimed that V had consented to the touching, and that its ’nature and quality’ had not changed in virtue of his missing qualifications. D was nonetheless convicted.
On appeal, the Court of Appeal accepted this framing: that the ’nature and quality’ of the act was relevant to V’s consent. The court further accepted that the ’nature’ of the act performed was unchanged from V’s expectations. But, they held, the ‘quality’ of the act was different in virtue of D’s missing qualifications:
[V was] consenting to touching for medical purposes not to indecent behaviour, that is, there was consent to the nature of the act but not its quality.
(Rose LJ, 337)
Difficulties with ‘quality’ deceptions
It is difficult to identify what it means for a deception to go towards the ‘quality’ of the act. One obvious reading is that by ‘quality’ the Court of Appeal really meant the defendant’s purpose, a position acknowledged in the (separate) context of sexual offences.2 Yet in Tabassum it was accepted that ‘There was no evidence of any sexual motive.’ (329) (Instead, D seemed to be performing the examinations as a precursor to building medical software.)
It is also difficult to reconcile Tabassum with existing or subsequent authorities. While the court often cited Stephen J’s test in Clarence, it failed to acknowledge that Clarence never mentioned the ‘quality’ of D’s act. And, per Melin’s restatement, only deceptions as to nature or identity can vitiate consent to touching.
Conclusion
The simplest solution would be to overrule Tabassum: to reject that deceptions as to ‘quality’ might vitiate consent to touching, as distinct from deceptions as to the nature of the act, or the identity of the actor.