KennedyEdinburgh Law School
On December 14 2018, the decision of the Director of Public Prosecutions not to prosecute ex-DC Andrew Boyling for rape, indecent assault, procurement of sexual intercourse and misconduct in public office was upheld by the High Court in R (Monica) v DPP (henceforth Monica). The application for judicial review was brought by one of three women with whom Boyling, an undercover police officer, had a sexual relationship whilst posing as an environmental activist, named Jim Sutton. The case highlights significant issues relating to proper police conduct and the limits of state power but at its core is the question of when and why deception should undermine consent to sex. In this post, I put forward two arguments, both of which are based on my view that something important has been left out of previous attempts to answer this question. First, I argue that deceptions that are considered capable of undermining consent to sex can be understood as a form of ‘identity non- or misrecognition’ – a kind of failure on the part of the deceiver to respect the identity of the deceived. Second, I argue that conceiving of rape by deception in these terms provides a framework for thinking differently about where the boundaries of the criminal law ought to be drawn. Using Monica as a case study, my ultimate aim is therefore to suggest that identity nonrecognition could provide a foundation for this area of law going forward (as indeed it seems to have become in the recent past) but also to think critically about what this might mean in practice.
Inherently Human 