“Obtaining sex by deception” news update

The Scottish “Obtaining sex by deception” case with Samantha Brooks that I reported on last year is back in the news again, as the defendant was in court on Friday. Although it’s been reported in the usual gay press, their reports are third-hand with the primary sources appearing to be The Daily Record and The Scotsman as their stories were published first and give more detail not mentioned by other outlets.

To summarise, there is no mention of any transgender angle to the case in the reporting and I’m sure given there appear to be at least two independent sources, one of them would have mentioned it had there been. That does not mean however it could not have worrying implications for trans people should Brooks be found guilty. The charge is still unclear, with mentions in articles of “obtaining sexual contact by fraud” but as before, a search of relevant case law and legislation turned up nothing.

There was discussion in 2006 about updating Scottish law to include a better definition of consent, which would have included an identity-related offence that would have excluded this sort of thing but this did not go through. If “consent” really is undefined in Scotland, it appears case law may be about to create something very unfortunate for many Trans people.

Friday’s hearing was just to ender a plea and there is another hearing on the 9th February, but it is not clear what that hearing is in relation to. I believe it may be possible to obtain a copy of publicly available court papers in such cases and time permitting I shall attempt this.

10 comments

  1. Dear Zoe,

    Some points of explanation about the relevant Scots law which will be of interest to you. It seems clear that the accused is being prosecuted on a number of common law charges of fraud. That may explain why you had some difficulty finding the relevant sources. A significant quantity of common offences under Scottish criminal law are not based on statute but are determined by the long practice of the High Court of Justiciary, fraud among them.

    The reason the indictment refers to “obtaining sex by deception” is that according to Scots criminal jurisprudence, a fraud charge must found on the fraudulence producing some practical consequence. It is defined as bringing about some practical result by means of false pretences which would not otherwise result. Typically, this would result in the enrichment of the fraudster. However, it has been established that fraudulence resulting in some non-pecuniary end can constitute a relevant charge (I believe in the early 1900s). Similarly, the Court has held that fraud is not simply a crime of commission and that omissions can constitute a sufficient basis to proceed.

    Technically speaking, consent is no defence to the charge – precisely because a fraud charge alleges that any such consent was secured on a dishonest basis. Equally, consent is generally speaking no defence on criminal charge. Sexual assaults differ, in the sense that the absence of consent is precisely constitutive of the offence. The old case of William Fraser involved a man impersonating a woman’s husband, thereby “obtaining sex by deception”. The legal disagreement there largely arose out of the restricted definition of rape in Scots law – which was not at that point primarily concerned with the consent of the relevant parties.

    On consent, the Scottish Parliament codified and reformed many sex offences in 2009 in the Sexual Offences (Scotland) Act:

    http://www.oqps.gov.uk/legislation/acts/acts2009/asp_20090009_en_1

    It is highly likely that the preliminary hearing in February will be concerned with ascertaining the readiness of parties to proceed with the case and the resolution of preliminary matters, such as the admissibility of evidence and any arguments as to the relevancy of the indictment. I’m not a criminal practitioner so cannot say for certain about the recording practices in the Court. My sense, however, is that there will be minimal documentation which you could gain access to, as little substantively will have transpired.

    Trust that helps somewhat. Any further questions you might have which I might help with, do let me know.

    Cheerio!
    LPW
    http://lallandspeatworrier.blogspot.com/

    1. Thanks – that’s very useful.

      I’d found some of the work that had been done on consent around 2006 and also the William Fraser case, but oddly searching on BAILII and Google hadn’t given me the act itself. I can’t see anything in the act relating to consent that might apply here (s13(2)(d) perhaps?) so I’m guessing this is going to be some common law argument over the definition of consent.

      1. Zoe,

        You are right there. My understanding is that none of the charges against the accused derive from the 2009 Act (indeed, it is hard to see how the conduct complained of could be covered by any of the new sections contained in it). As a consequence, it doesn’t really obtain. I mentioned it largely to furnish a wee bit of background on the sorts of issues raised by the case.

        As a result, any argument to be made against the relevancy of the indictment will have to concern itself with the common law. That being so, I doubt consent itself will be an issue, at least not immediately. I’d guess the case will turn on issues of causation, which at least implicitly concern themselves with who would or would not agree to do what, when, in full knowledge of certain facts. In this respect, it is certainly an unusual fraud case.

        Moreover, the accused’s counsel might well argue – what detriment has the complainer suffered? Certainly there seem to be some legal sources who would give her some basis to contend that any disadvantage suffered by the complainer was not a “legally significant prejudice”. It remains to be seen what the judge or judges might make of such an argument.

        Alternatively, the case may turn on simple disagreement about which versions of fact to accept.

        1. Is sounds as if under Scottish law, if you fail to tell someone something that might have affected their consent then consent isn’t valid – is that a fair summary?

          1. I’d avoid attempting to rationalise Scottish criminal law too far. It is an often eccentric and unclear body of jurisprudence. It is helpful to focus on specific offences. I should add, fraud prosecutions in cases such as these are certainly unusual. As a result, it is difficult to say what the frontiers of the concept might be – or to put it a different way, whether different false pretences might or might not be taken to justify a charge of fraud. If I lie to you about my age, and we fall into a relationship, is that a fraud? Or, as you suggest, what about an individual who has gone through the legal gender reassignment processes, and fails to disclose this to a partner. Fraud?

            My sense of the causal analysis is that it would have to be a fraudulently concealed or posited fact which could be said to actually bring about a result. That, unsurprisingly, doesn’t really clear things up…

  2. Query: if someone who was 1/64 Black didn’t reveal that as they were “passing for white”… would that be fraud, if the other party objected to being involved with “n1ggers”?

    How about someone who was Jewish but didn’t look it – is that fraudulent under similar circumstances?

    How about if someone is married, and doesn’t reveal it? Or an Arbroath supporter, wearing Queen O’The’South colours?

  3. Pertinent questions. My sense is that issues of this sort may well be treated as a question of fact, rather than one of law. The issue becomes particular to the case being tried and a matter for the jury. If fraud is achieving X by deception, in the circumstances of the case, the trier of fact would have to come to some assessment about the actual causation involved. So, for example, they may struggle to believe that the deception caused an outcome where football loyalties were concerned. Relevant to that consideration would doubtlessly be some assessment about whether the complainer had disclosed their attitudes, particularly if those attitudes are idiosyncratic and unforeseeable.

    I’ll write up a wee blogpost of my own on this case in the near future. One has to be a little cautious, however. As live proceedings, the case is covered by the Contempt of Court Act 1981.

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