Five minutes with a Fellow – Dr Rachel Clement Tolley

Multiple pink clocks on a blue background

I was delighted to join Trinity Hall in September 2018 to continue my research in criminal law and to teach our sharp and committed undergraduate law students.

I joined the Hall from Wadham College, Oxford, where I wrote my doctoral thesis, Deception, Mistake, Privacy and Consent: A Conceptual Framework for Resolving the ‘Line-drawing’ Problem in Sex-by-Deception and Mistaken Sex. I also read the BA in Jurisprudence and the BCL at Wadham and taught criminal law as a Stipendiary Lecturer at Hertford College, Oxford, during my
graduate study.

I spend a lot of my time – in both my teaching and research – thinking about the tragedies and trauma that may befall us, and how the law can and should respond. Every supervision provides new ideas for future research but at the moment my main focus is on consent to sexual activity and, secondly, on the way that the criminal law defines the ‘body’.

I’ve been interested in the difficulties inherent in regulating ‘sex-by-deception’ in the criminal law since I was an undergraduate student. If D lies to C, and C agrees to sexual activity on that basis, does C’s agreement amount to valid consent in the eyes of the criminal law? Does it matter if D simply failed to disclose the relevant information? Does the subject matter of the deception or non-disclosure matter? Should we treat lies or non-disclosures about sexual health or sexual history differently to lies or non-disclosures about wealth, occupation or love?

This issue has frequently troubled the courts. Just recently the High Court dismissed an application to judicially review the decision of the CPS not to prosecute a former undercover police officer who engaged in sexual activity with an environmental activist who would not have consented to that activity, had she known the officer’s true identity (R (Monica) v DPP and Boyling
[2018] EWHC 3469).

My work challenges orthodox legal approaches to identifying deception and recasts the right to sexual integrity in a novel way. From these foundations, I argue that the distinction between deception and non-disclosure does indeed matter. I also argue that, in some narrow circumstances, the right to sexual integrity must be balanced against D’s rights, chiefly (but by no means exclusively) the right to privacy. This balancing exercise functions to exclude, from the reach of both moral censure and criminal law, certain deceptions and non-disclosures. However, some deceptions should preclude the legal validity of consent. The difficulty is knowing where, and how, to ‘draw the line’. My work provides a much needed, robust theoretical framework for resolving these long-standing ‘line-drawing’ difficulties, and for critiquing decisions like Boyling.

When I’m not working on sexual offences and consent, I am busy researching how non-fatal, non-sexual offences against the person apply to users of mobility aids. Under the current law, if D deliberately strikes C’s prosthetic leg and breaks it, and D intends to damage only the prosthetic leg, D is not liable for any serious offence against the person. I argue that, in such circumstances, the law fails to properly characterise the harm sustained by C, and the wrong committed by D. Accordingly, I argue in favour of a reimagining of the body in criminal law, and the extension of the offences against the person, in order to ensure the appropriate recognition and protection of all bodies, including those of people with disabilities.

I’m grateful to continue my research in such a supportive, and intellectually rich environment. It is also a joy to teach Trinity Hall law students. To do so in a fellowship endowed in the name of John Collier, a man who taught over 1,000 law students, is a distinct privilege.

Dr Rachel Clement Tolley
John Collier Fellow in Law

This article was first published in the spring 2019 edition of Front Court.