Consent (in regard to sexual offences) was first legislatively defined in s74 of the Sexual Offences Act2003 (SOA), stating that “a person consents if he agrees by choice, and has the freedom and capacity to make that choice”. This served to instantaneously relegate the prior caselaw to a status of being only persuasive. In recent years, inconsistency has crept into the caselaw on this, typified by the recent judgment in Lawrance.[i] In this case, the claimant and defendant met through match.com, through which the defendant had also met several other, separate, complainants. Through messages, Lawrance falsely claimed that he had “had the snip” (a vasectomy) and so was infertile, and, on meeting, the complainant asked him to confirm this fact, and made it clear that this was a precondition to her consent. He affirmed his deception and then informed the complainant of his fertility only the next day, after they had twice had sexual intercourse. The first instance judge held that this deception could vitiate consent and directed the jury as such, on which they concluded that the defendant was guilty of rape. This was overturned by the Court of Appeal, who held that this deception did not vitiate consent despite breach of this clear precondition. This article seeks to demonstrate the inconsistencies of this approach with modern caselaw and describe the significant omission in the SOA which this highlights in comparison to the previous legislative provisions.
The defendant in Lawrance met the complainant on Match.com and they arranged to meet following sexually explicit messages in which the defendant claimed to have had a vasectomy. When at her home after spending the evening together, the complainant asked the defendant to repeat these assurances, which he did, with her making clear thatthis was a precondition to their having sexual intercourse. The following day the defendant messaged the complainant to admit that he had in fact not had a vasectomy and was fertile. The complainant became pregnant and underwent a termination. The trial judge held that such deception about a vasectomy was equivalent to those about contraception and so vitiated consent in law.However, in the Court of Appeal it was held that this was not the case as fertility was a subsidiary aspect of the act of sexual intercourse. This approach created contradictions with prior jurisprudence.
The first problem arises from the interplay of recent cases and their subsequent application to the facts in Lawrance. In Assange v Sweden, it was found that deception as to the use of a condom vitiates consent, and similarly in R (F) v DPP, breach of an agreement to use the ‘withdrawal method’ vitiated consent. [ii]The trial judge’s finding was in accordance with these, but the difference in the court of appeal was that they held that whilst a deception about a condom goes to the nature of the act itself, and so vitiates consent, fertility is only a subsidiary aspect concerning consequences thereof.[iii] This was based on a dubious reading of the recent case of Monica v DPP, in which it was held that deception by an undercover police-officer as to his identity as an environmentalist was not sufficiently closely related to the sexual activity for which the consent was submitted to have been vitiated.[iv]Discussion of the SOA was only obiter in Monica as it concerned events in 1997, and D'souza has highlighted that this obiter was based on an over-generous concession by the CPS lawyer that the SOA had not changed the law of consent in any material way. [v]Indeed at [48] in Monica it was indicated that Assange likely had in fact altered the law. The fact that Lord Burnett CJ co-authored both the decision in Monica and that in Lawrance could explain why theCourt of Appeal did not take account of this additional context, which led to different interpretations of the previously mentioned cases. It is also important to note that the deception in Monica was of a vastly different sort, being as to identity and not as to the act itself. The Court of Appeal appeared to appreciate this distinction in their distinction of Assange and R(F) by drawing a distinction. Such a distinction is dubious at best, given whether intercourse can or cannot lead to pregnancy can be seen to change the nature of the act in a material way, but it is also inconsistent with R v McNally and R v B.[vi]
In McNally it was held that deception as to the biological sex of the person carrying out a sexual act was sufficient to vitiate any consent, because, in the words of Sir BrianLeveson P, “her preference was removed by the appellant's deception." The court’s assertion that there was such a deception on the part of the transgender defendant, who was expressing her gender (rather than biological sex) as she experienced it, is less clear-cut, but an active deception of this sort was held to vitiate consent. The court in Lawrance, despite agreeing with McNally, suggested at [37] that consent was not vitiated on their facts as there was the key difference that the complainant imposed no ‘physical restrictions’ so had consented despite the deception. There was no clear description of what such ‘physical restrictions’ were, or what the distinction is between non-physical, potentially conduct based, restrictions.This failure of the Court of Appeal is highlighted by considering the hypothetical case put in R v B, of active deception about HIV status, as there is also no ‘physical restriction’ beyond belief as to some medical status of the defendant (sterility or being HIV-positive). To suggest that requiring asexual partner to have undergone invasive surgery is not a similarly ‘physical restriction’ is inconsistent. Whilst the case of active HIV deception has never been decided, with R v B being only failure to disclose, it is telling that no court has ever suggested that this would not vitiate consent, even in obiter, and indeed the fact that it almost certainly would was accepted by counsel for the defendant in Lawrance itself.[vii]
The court of appeal was wrong to say that breach of such a clear precondition could not vitiate consent. Whilst accepting that transmission of an STI, as a consequence of intercourse, is relevant to the question of consent, the court of appeal in Lawrance blindly asserted that there is no relevance of the risks and consequences of unprotected sex in the present case. Whilst they are correct in saying that itis difficult to draw the line between potentially minor deceptions which might lead to a conviction of rape, the answer to this cannot be to simply ignore past jurisprudence. The refusal to grapple with “very slippery concepts”, thus refusing to draw any principled lines, illustrates the inadequacy of the approach in Lawrance.[viii]This is most clearly seen by the failure to adequately distinguish between cases such as HIV transmission and fertility, despite claiming that there is a gulf between them which justifies their judgment, given the overwhelming obiter suggesting active HIV deceptions do vitiate consent.
These issues show the incompatibility of the decision with the caselaw as it stands, but there are also concerns about the approach taken with regard to public policy and the prevailing societal views surrounding consent.
Even if Lawrance were to be a correct decision with regard to recent jurisprudence, this would be problematic given the drastic shift this would signal from current legal and societal understandings of consent. Whilst it is by no means an easy task to draw the line between deceptions which should and should not vitiate consent, it is imperative to consider the underlying approach in order to be able to do so with any degree of legitimacy. The best way to address this depends on whether we want to operate within the current system or whether we would reform this. I propose a richer conception of consent within the framework of the SOA and an alternative formulation which would make it easier to draw the line by creating an intermediary between the offence of rape and no offence at all. The former is more achievable given the delays and inadequacies in much parliamentary drafting and enaction, but the latter could better reflect reality in cases where fair-labelling and justice mean neither a finding of no offence nor of rape is appropriate.
A rich conception of consent has been described by Herring, although he goes so far as to propose an absolute conception of consent which can be denied by even the minor deceptions which courts have discussed, such as with reference to wealth in McNally.[ix]Herring rejects what he sees as the false dichotomy of consent and lack thereof, instead conceptualising consent as a question of what there was consent to, with a rich consideration of purpose and intentions within this.For instance, he separates sexual activity for pleasure and procreation.Deceptions as to purpose expressly vitiate consent according to SOA s76, so it is clear that deceiving someone as to one’s fertility if conception is the sole purpose of intercourse would vitiate consent, given its being the purpose of the act, yet Herring’s conception would equally apply to the reverse on the facts of Lawrance. This would create a fuller legal sexual autonomy to match the social changes exemplified by campaigns such as the ‘#MeToo’ movement, as well as more general societal trends. Nicola Lacey has written concerning the stereotypes of sexuality, of active masculinity and passive femininity, which are still entrenched in the view of consent as a dichotomy, particularly in the gendered offence of rape.[x]Lacey unpacks the fact that as rape can only be committed by a man, given the requirement for penile penetration, it reinforces views of women as simply consenting or not to this, in contrast to Herring’s richer conception. [xi]This dichotomous conception further reinforces the active versus passive gender stereotypes which are still prevalent in some parts of society. Herring also argues that his prescribed change to the conception of concept is necessary to match the broader conception of medical consent, when comparing provision under the SOA to St George's Health Care Trust v S, where much greater physical autonomy was ascribed in the medical context.[xii]
However, whilst this conception of consent would create a desirable level of sexual autonomy, its application to deceptions such as the oft-cited example of being wealthy may make it inappropriate for application across the range of SOA offences. Whilst a deception as to wealth would be treated differently within the sentencing guidelines, there is some academic, and potentially societal, discomfort with describing such offences as rape. This is part of the reason for calls for reintroduction of the offence of ‘procurement of a woman by false pretences’ ins3 of the 1956 Act by academics such as Laird.[xiii]This offence was where a man convinced a woman to have sexual intercourse through ‘false pretences or false representations’, which is clearly applicable to facts like in Lawrance. This carried a maximum sentence of two years imprisonment, in contrast to the potential life sentence which can be imposed on those guilty of rape.
This procurement offence was repealed by the SOA, with no replacement, despite recommendations from the LawCommission and the Sexual offences Review supporting its retention.[xiv] Laird remarked that this did not seem to be a conscious parliamentary decision given the lack of reference to the s3 offence in Hansard, and Spencer suggested that s4 could have been read to include the old s3 offence[xv],but this does not appear to be the case given the lack of any such prosecution since its enactment. Whilst, following its repeal, such a gendered offence should not be restored as it was, the re-criminalisation of deceptions whichare currently seen as irrelevant could help to draw the line which the court of appeal in Lawrance skirted around. Any deception would then constitute the new offence, equivalent to the old one but rewritten in an appropriately ungendered manner, and the line between this and the fuller conception of consent in the SOA could remain where it was in the jurisprudence pre-Lawrance. A key case illustrating the utility of such an offence is Linekar, in which the defendant refused to pay a prostitute after they had had sex.[xvi]The Court of Appeal remarked that had he been charged with the s3 offence(which was still in force at that time) he would have been guilty of it.[xvii]The reintroduction of this would also promote fair-labelling of crimes and help to prevent any discomfort which juries could otherwise have where making a finding between no criminal liability and liability for an offence with a potential life sentence.[xviii]This is more than simply responding to society’s squeamishness at labelling such an offence as rape given the fact that fair-labelling is essential where we have a jury system which must ultimately characterise the offences, and so as not to either misattribute the stigma of rape, or conversely to reduce its seriousness by an inappropriate widening of the category. The reduced sentence for such an offence can also be seen in similar offences which survived in other countries, such as in Ireland where a similar procurement offence has a statutory maximum sentence of 2 years, like the Sexual Offences Act 1956 s3offence, although this was lamented as being inadequate in one of the few prosecutions under it.[xix] Whilst there might be concerns that such an offence could lead to increased prosecution and incarceration, all this tells us is that such behaviour is simply ignored at the moment, including deception as to fertility following Lawrance, despite the denial of sexual autonomy such deceptions entail.
Lawrance was decided against the prevailing judicial conception of consent, and it is hoped that an appeal to the Supreme Court will follow which will remedy this. It is unclear how the Supreme Court might choose to clarify other cases, and where it might draw the line, but it is unlikely that they would, or even could, reinvent consent along the lines of Herring’s full conception thereof. The judicial and parliamentary debate and legislation which would be necessary to lead to reintroductions3 of the 1956 Act may make such a step unlikely, but it would also ensure adequate discussion of the issues which are highlighted above on the boundaries of consent under the current law, even if reform does not occur.
[i]R v Lawrance [2020] EWCA Crim 971
[ii]Assange v Sweden [2011] EWHC 2849 (Admin), R (otao F) v DPP[2013] EWHC 945 (Admin)
[iii]Lawrance, [37]
[iv]R (otao Monica) v DPP [2018] EWHC 3508(Admin), [72]
[v]Mark Dsouza, ‘DECEPTION, CONSENT TO SEX, AND R V LAWRANCE [PART 1]’, <https://www.ucl.ac.uk/criminal-law/sites/criminal-law/files/deception_consent_to_sex_and_r_v_lawrance_part_1.pdf>accessed 26 September 2020
[vi]R. v McNally (Justine) [2013] EWCA Crim 1051), R v B [2006] EWCACrim 2945
[vii]Lawrance, [40]
[viii]Ibid
[ix]J. Herring, “Mistaken Sex” Crim. L.R. (2005), Jul, 511-524; McNally,[25]
[x]N. Lacey, "Unspeakable Subjects, Impossible Rights: Sexuality, Integrityand Criminal Law" (1998) Canadian Journal of Law andJurisprudence 47, 60
[xi]Sexual Offences Act 2003, s1(1)(a)
[xii]St George's Health Care Trust v S [1999] Fam. 26, .
[xiii]K. Laird, “Rapist or rogue? Deception, consent and the Sexual Offences Act2003” Crim. L.R. (2014), 7, 492-510
[xiv]Law Commission, Consent In Sex Offences (2000), para.5.45; Setting theBoundaries: Reforming the Law on Sex Offences, Vol.1 (2000), para.2.18.5
[xv]J.R. Spencer, “Three New Cases on Consent” (2007) 66 C.L.J. 490; J.R. Spencer,“Sex by Deception” (2013) 9 Arch. Rev. 6. Also see Dica [2004] EWCA Crim1103 at [36].
[xvi]Linekar [1995] Q.B. 250
[xvii]Ibid, at 261
[xviii]Simester, Spencer, Sullivan and Virgo (eds), Simester and Sullivan’s CriminalLaw: Theory and Doctrine (6th edn, Hart Publishing 2013), p.476
[xix]The Irish Times, ‘Man jailed for sex on false pretences’, <https://www.irishtimes.com/news/man-jailed-for-sex-on-false-pretences-1.792514>,accessed on 26 September 2020
