s 377CB Consent given under misconception in sexual offences
377CB.—(1) Despite section 90(a)(ii), a consent for the purposes of an act which is the physical element of a sexual offence is not a consent given by a person under a misconception of fact only if it is directly related to —(a) the nature of the act, namely that it is not of a sexual nature; (b) the purpose of the act, namely that it is not for a sexual purpose; or (c) the identity of the person doing the act, and the person doing the act knows, or has reason to believe, that the consent was given in consequence of such misconception. [15/2019] (2) In subsection (1) —“sexual” has the meaning given by section 377C(3); “sexual offence” means any offence where the physical element of the offence under this Code or any other written law involves an act of a sexual nature and includes but is not limited to any offence under sections 375 to 377BN.Illustrations (a) A deceives B into allowing him to penetrate her vagina by inducing the misconception that he is extracting an evil spirit from B’s body. B believes A and thinks that what she has consented to is a procedure to extract an evil spirit, not sexual intercourse. B has given her consent under a misconception as to the sexual nature of the act. B’s apparent consent is therefore not a valid consent. (b) A deceives B into believing that he can heal B’s chronic disease by treatment involving sexual penetration. B gives her consent under the misconception that the act is treatment for a health purpose and not for a sexual purpose. B’s apparent consent is therefore not a valid consent. (c) A deceives B into believing that A is her husband. A is an imposter. B consents to sexual intercourse with A because she believes A is her husband. B’s consent is given under a misconception of the identity of A and is therefore not a valid consent. (d) A deceives B into believing that A is an influential movie director. A is in fact only an administrative assistant to that movie director. B consents to sexual intercourse with A because she believes A is that movie director. B’s misconception is as to A’s attributes and not of A’s identity. B’s consent is therefore a valid consent. [15/2019] —(1) Despite section 90(a)(ii), a consent for the purposes of an act which is the physical element of a sexual offence is not a consent given by a person under a misconception of fact only if it is directly related to —(a) the nature of the act, namely that it is not of a sexual nature; (b) the purpose of the act, namely that it is not for a sexual purpose; or (c) the identity of the person doing the act, and the person doing the act knows, or has reason to believe, that the consent was given in consequence of such misconception. [15/2019] (2) In subsection (1) —“sexual” has the meaning given by section 377C(3); “sexual offence” means any offence where the physical element of the offence under this Code or any other written law involves an act of a sexual nature and includes but is not limited to any offence under sections 375 to 377BN.Illustrations (a) A deceives B into allowing him to penetrate her vagina by inducing the misconception that he is extracting an evil spirit from B’s body. B believes A and thinks that what she has consented to is a procedure to extract an evil spirit, not sexual intercourse. B has given her consent under a misconception as to the sexual nature of the act. B’s apparent consent is therefore not a valid consent. (b) A deceives B into believing that he can heal B’s chronic disease by treatment involving sexual penetration. B gives her consent under the misconception that the act is treatment for a health purpose and not for a sexual purpose. B’s apparent consent is therefore not a valid consent. (c) A deceives B into believing that A is her husband. A is an imposter. B consents to sexual intercourse with A because she believes A is her husband. B’s consent is given under a misconception of the identity of A and is therefore not a valid consent. (d) A deceives B into believing that A is an influential movie director. A is in fact only an administrative assistant to that movie director. B consents to sexual intercourse with A because she believes A is that movie director. B’s misconception is as to A’s attributes and not of A’s identity. B’s consent is therefore a valid consent. [15/2019]