SOME people lie to get sex. These deceptions may arise actively via a false representation or passively via a failure to disclose; and they may range from the serious (e.g. about HIV status) to the “trivial” (e.g. about wealth). Crucially, then, are sexual relations of this kind consensual? In England and Wales, the answer depends on the consent provisions in the Sexual Offences Act 2003 (“SOA”). Yet in applying these provisions, the courts have long struggled to articulate consent coherently in proceedings concerning deception. It is against this unfortunate jurisprudential backdrop that the Court of Appeal recently adjudicated on consent in just such a case: R. v BVA [2025] EWCA Crim 1359, [2026] 1 W.L.R. 621 (“BVA”).

The accused (D) was convicted at trial, inter alia, of sexual assault (contrary to the SOA, section 3) on the victim (V). The pair had met on the dating app Tinder and, one night whilst V was asleep in bed, D intentionally and sexually touched her left breast and nipple repeatedly. During this period D had an erection. Indeed, a video of the activity existed: D had filmed the event on his mobile phone. In her evidence, V accepted that she may have consented to D touching her whilst she slept. However, D had failed to disclose to V his intention to record the touching and V said this failure negated her consent: had she known of that intention, she would not have allowed D to act as he did.

The facts are unconventional in that, by his failure, D passively deceived V about an aspect (the videoing) of the touching; previous SOA cases have generally featured D actively deceiving V (e.g. by words or actions) about some aspect of the encounter. Nonetheless, R. v Lawrance [2020] EWCA Crim 971, [2020] 1 W.L.R. 5025 (“Lawrance”), has clarified that “there is no material difference […] between an express deception or […] a failure to disclose” (at [41]) and this seems correct: both active and passive deceptions are capable of inducing V’s consent to sexual activity. BVA thus represents not only an uncommon occurrence in sexual offences whereby D failed to disclose something relevant to V’s decision to consent; but also–following Lawrance–an instance where such failure can now legally affect consent. To that end, the Court of Appeal in BVA was clear (at [45]) that the issue of V’s consent should be determined under SOA, section 74 (the “general definition” of consent). Despite V’s being asleep at the time of the touching, the evidential presumption against consent whereby “the complainant was asleep […] at the time of the relevant act”–as found in SOA, section 75(2)(d)– did not apply. This was because V may have consented to the touching in advance (at [30]). And the conclusive presumptions against consent concerning intentional deception by D as to the nature or purpose of the act or as to D’s identity – contained in SOA, section 76(2) – did not apply either (at [32]).

But was there a role to play for SOA, section 76(2), specifically regarding deception as to purpose? The Court of Appeal noted (at [49]) that:

Evidently, V was unaware of that “central purpose” due to D’s (intentional) passive deception: the failure to disclose his plan to make the video. The SOA does not define “purpose”, although in R. v B [2013] EWCA Crim 823, [2013] 2 Cr. App. R. 29, Hallett L.J. cautioned against a wide definition: following R. v Jheeta [2007] EWCA Crim 1699, [2008] 1 W.L.R. 2582, “purpose” should be strictly construed, albeit “it may not be straightforward to ascertain the purpose of a sexual act. Those engaging in a sexual act may have a number of reasons or objectives and each party may have a different objective or reason. The [SOA] does not specify whose purpose is under consideration” (at [19]). Accordingly, under SOA, section 76(2), some ambiguity remains in applying “purpose”. In light of this, it is significant that the Court of Appeal in BVA characterised D’s “central purpose” as a combination of the videoing for his immediate sexual gratification and subsequent viewing by him (and possibly others) for future sexual gratification. That purpose diverged from V’s presumed sole purpose: D’s sexual gratification from privately touching her in the moment. Consequently, the Court of Appeal’s discussion of D’s contrasting purpose seems tantamount to recognising deception as to purpose under SOA, section 76(2). This is particularly so given reference to how the video “transformed” that private, brief touching into something pornographic. Of course, on another view, there was no deception as to purpose because, at a greater level of generality, D and V each identified D’s own sexual gratification as the primary purpose in the touching (whether it was videoed or not). However, it may be objected that this is too reductive an approach to “purpose”, notwithstanding the conclusive nature of the presumptions against consent in SOA, section 76.

What insights about V’s consent, then, did the Court of Appeal glean from its analysis of SOA, section 74 (“a person consents if he agrees by choice, and has the freedom and capacity to make that choice”)? Here, again, Lawrance was instructive. It is not the case that consent will necessarily be negated by any matter that V regards as fundamental to consent. The Divisional Court had discounted such a “subjective” approach in R. (on the Application of Monica) v Director of Public Prosecutions [2018] EWHC 3508 (Admin), [2019] Q.B. 1019 (“Monica”) amid concerns about where to draw lines between deceptions which negate consent and those which do not; and criminalising conduct which, hitherto, has fallen outside English criminal law. Problematically though, this left the Court of Appeal in BVA with the unenviable task of employing an alternative line-drawing test from Lawrance: was D’s active or passive deception “sufficiently closely connected to the sexual activity (by reference to its nature, purpose and performance), rather than the broad circumstances surrounding it” (at [46])? Further, giving judgment in BVA, Lady Carr C.J. reiterated the point (made in previous cases such as Lawrance and Monica) that “broad common sense” has a role to play in identifying the boundaries of the test (at [46]). In considering SOA, section 74, it was therefore imperative to ask: “was the filming that took place sufficiently closely connected to the sexual touching such that a lack of consent deprived [V] of her choice? Or was the filming simply part of the broad circumstances surrounding the sexual touching?” (at [47]).

In addressing these questions, the Court of Appeal identified that the authorities on deception and SOA, section 74 “are not necessarily always easy to reconcile, and there may be no bright lines to draw” (at [45]). This is a telling acknowledgement of the arbitrariness (and associated uncertainty) that now pervades application of the “closely connected” test to deceptive sexual relations. In drawing her own lines, Lady Carr C.J. found that D’s filming was intimately connected, both “temporally and proximally”, to the touching (at [49]): the filming started and stopped alongside the touching; the mobile phone used was held up close to V’s face and breasts; with D holding that phone in one hand and touching V’s breasts with the other. Thus, the videoing was sufficiently closely connected to the touching that a failure to disclose it could negate consent under SOA, section 74–this according with “a broad common sense (yet principled) approach to the facts” (at [52]). D’s appeal against conviction duly failed.

However, this is not altogether persuasive. The filming in no way affected D’s touching of V, such that it was physically different to what V anticipated. The performance of the touching was as expected (if not likely agreed): D touched V with his hand. The videoing represented the broader circumstance within which the touching took place. Yet even if Lady Carr C.J. was correct to say that D’s conduct satisfied the “closely connected” test, this would sit uncomfortably with the Court of Appeal’s implementation of that test elsewhere. For example, it is not remotely clear why D’s filming in BVA was more closely connected to the sexual activity in issue than D’s supposed inability to impregnate (stemming from an active deception as to fertility) was in Lawrance–even though the judgment in BVA made this claim (at [50]). Nevertheless, at the same time, the judgment also highlighted that comparisons across cases may not be helpful, particularly where there are novel facts. Combined with comments about the difficulties in reconciling authorities and drawing lines, this equivocating alludes to a growing uneasiness with the “closely connected” test as a way of resolving consent under SOA, section 74 in deception scenarios. There is ample academic literature, alongside coherent reform proposals (see Criminal Law Reform Now Network, “Reforming the Relationship between Sexual Consent, Deception and Mistake”, available at https://www.clrnn.co.uk/media/1031/clrnn3-deception-report.pdf (last accessed 9 February 2026)), to show that deception constitutes a distinct wrong in sexual offences; and one which warrants separate criminalisation through legislative intervention. The “closely connected” test reflects an obvious way in which English criminal law on sexual offences is incoherent and unpredictable. The fact that the Law Commission will review how consent operates within those offences (see “Consent in the Criminal Law”, available at https://lawcom.gov.uk/project/consent-in-the-criminal-law/ (last accessed 9 February 2026)) provides an important opportunity to remodel legal approaches to deceptive sexual relations.