By the editor, Aug 3 2020 12:11PM
The Court of Appeal in R v Lawrance  EWCA Crim 97 ruled that consent to sex based on the fraudulent representation by the man that he'd had a vasectomy remained adequate consent, and was a sufficient defence to a charge of rape. Comment afterwards suggested that the case highlighted confusion in the law about the concept of consent, and suggested that the law may need changing.
In fact I'm not sure that the concept of consent is that difficult, or that the law needs changing. I think the Court simply got it wrong.
The Court noted that there was case law dating back to the 19th century on what types of deception could invalidate consent in rape cases. It also noted that under the current legislation, the Sexual Offences Act 2003, section 76 provided that there was a conclusive presumption that consent hadn't occurred where deception concerned "the nature or purpose of the relevant act" or "impersonating a person known personally to the complainant". The court concluded, in considering the first limb of this test: "The question is whether a lie as to fertility is so closely connected to the nature or purpose of sexual intercourse rather than the broad circumstances surrounding it that it is capable of negating consent." It decided in the negative.
In coming to this conclusion, it considered a number of different scenarios:
"There may be many circumstances in which a complainant is deceived about a matter which is central to her choice to have sexual intercourse. [The case of] Monica was an example, but they can be multiplied: lies concerning marital status or being in a committed relationship; lies about political or religious views; lies about status, employment or wealth are such examples. A bigamist does not commit rape or sexual assault upon his or her spouse despite the fundamental deception involved. The consent of the deceived second spouse, even if it would not have been forthcoming had the truth been known, does not vitiate consent for the purposes of sexual offending. Neither is the consent of a sex worker vitiated if the client never intends to pay."
This is surprising. Ordinarily, if people agree to do something on the basis of a condition, we would say there was no consent if that condition hadn't been met, because one of them deceived the other about it. If I agree with my neighbour that he can park his vehicle on my drive on one condition, it wouldn't matter that the condition was that he could only park a car, or that he was (for example) a Tory voter - if the condition isn't fulfilled, we would say there was no true consent. Why should it be different with rape?
There might of course be circumstances in cases of alleged rape where it wasn't clear that there was any deception, or where it wasn't clear if consent was actually dependent on the condition concerned. So simply saying "I wouldn't ever sleep with a Tory and he was perfectly aware of that" may not be sufficient. But that would be a matter for the prosecution to prove to the criminal standard of proof. If, as it appears in this case, it is undisputed that the complainant made it a condition that she would only have sex with the person concerned if he had had a vasectomy (or whatever the condition might be), then no such difficulty arises. Other cases may be more difficult, but no more intrinsically difficult for one type of condition than for any other.
There certainly used to be a distinction, from Victorian times, between different types of deception. Some such deception negated consent as far as rape was concerned, and some would result in a different offence. But it seems that the Sexual Offences Act 2003 sought to end this distinction.
Under s.74 of the Act, it is simply stated: "For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice."
S.76, which the court concentrated on, only operates (with s.75) to provide conclusive presumptions concerning consent, which apply in certain circumstances. Put simply, deception does not have to fit into one of the categories in s.76 in order to negate consent. It is still necessary to consider whether, under s.74, there has been an agreement "by choice" - deceptions concerning vasectomies, or anything else, still need to be considered under that test.
This isn't just my view. The case of R v Jheeta  EWCA Crim 1699, relied in Assange v. Swedish Prosecution Authority  EWHC 2849 (Admin), makes this plain. In that case, the court considered that the deception involved did not fall within s.76, but nevertheless: "This was not a free choice, or consent for the purposes of the Act. In these circumstances we entertain no reservations that on some occasions at least the complainant was not consenting to intercourse for the purposes of section 74, and that the appellant was perfectly well aware of it."
It's odd that this case wasn't referred to in the Lawrance judgment, even though Assange was: the latter is only a High Court case, whereas Jheeta is a Court of Appeal one. The earlier cases relied on in Lawrance that appeared to limit the instances where deception could vitiate consent were considered by Jheeta to have been superseded by the Sexual Offences Act 2003. The court noted that "the offence of procuring a woman to have sexual intercourse by false pretences ceased to exist when the 2003 Act came into force" - the concept of consent had been widened under the Act, and the previous distinctions between different types of deception no longer had the same relevance.
It seems that the Court in Lawrance was concerned to prevent convictions where consent has in fact been given, but allegations of vague or extraneous deceptions have been made - "I would never have slept with him if I'd known X". But that seems to me to confuse an evidential issue with a conceptual one. If it's clear that someone has agreed to sex on the basis of a particular condition, whatever that is, and the other person breaches that condition by deception, there seems no good reason why sex on that basis should be considered consensual.