Vanessa Thomson has summarised the case of R. v. Jason Lawrance where the Court of Appeal gave consideration to the question of deception and the vitiation of consent. Does a lie by a defendant, that he is infertile, negate ostensible consent given by a complainant? The Court of Appeal said it did not and examined the recent caselaw that has developed upon this point and the presumptions contained within s. 76 of the Sexual Offences Act 2003.
Link: https://www.bailii.org/ew/cases/EWCA/Crim/2020/971.html
Facts:
1. In 2014, the appellant met the complainant on a dating website. They exchanged messages which became sexually explicit. In one conversation, the complainant spoke of a sexual encounter with another man. When the appellant asked whether he had worn a condom, she replied that he had not because “he had the snip years ago”. To this comment, the appellant responded “so have I”.
2. The pair met in July 2014, where they spent the evening together and returned to the complainant’s home. They went to her bedroom and it was the complainant’s evidence that, before they had sexual intercourse, she sought an assurance from the appellant that he had definitely had a vasectomy. He assured her that he had and she continued to make it clear to the appellant that she did not want to risk becoming pregnant. Having reassured her once more that he was infertile, they had sexual intercourse twice without any contraception.
3. The following morning, once they had parted company, there was an exchange of messages whereupon the appellant said “I have a confession. I’m still fertile. Sorry.” The complainant later discovered that she was pregnant and underwent a termination.
4. At trial, the prosecution’s case was that the complainant’s consent was vitiated by the appellant’s deception and that if he genuinely believed she had consented, such a belief was unreasonable. It was the appellant’s case that the complainant had consented and that there had not been any further conversation about his vasectomy at the complainant’s flat.
5. An application to dismiss was made prior to arraignment. It was submitted on the appellant’s behalf that a lie told about a person’s fertility could not, as a matter of law, vitiate consent. In particular, it was submitted that;
- Not all deceptions leading to an individual consenting to sexual intercourse are sufficient to negate consent and
- The more recent cases of Assange v. Swedish Prosecution Authority [2011] EWHC 2849 (Admin) and R(F) v. DPP [2014] QB 581 were distinguishable upon their facts from the present case. In those cases (the details of which will be explored in more detail later in this document) it was said that the deceit was so closely connected with the sexual act. In this particular case, the deceit went to the consequences of the sexual act; that is the risk of pregnancy. The appellant sought to rely upon the case of R.v.B [2007] 1WLR 1567, which was more akin to the situation before the Court. In ‘B’, the appellant had failed to disclose that he was HIV positive but it was held this ‘deception’ was not enough to vitiate the consent that had been given.
6. The trial Judge concluded that the distinction which the appellant sought to draw between the ‘consequences of the act of intercourse’ and the ‘nature of the act itself’ were ‘artificial’. The trial judge seemed to rely heavily upon the appellant’s positive representation that he was infertile compared to the lack of disclosure made in the case of ‘B’ and suggested that the distinctions between this case and Assange were of marginal relevance. The application to dismiss failed and the counts were tried by the jury. The appellant was convicted and the failure of the trial Judge to accede to the application was to become one of the grounds of appeal.
Arguments placed before the Court of Appeal:
7. The first ground of appeal was that there was no evidence upon which a jury could be sure that the offence of rape had taken place. It was argued that the judge should therefore have acceded to the defence submission that there was no case to answer and withdrawn those counts from the jury’s consideration. There was also a second ground of appeal; that the Judge had mis-directed the jury in his summing up.
8. Counsel for the appellant argued that that whilst the courts have previously found that a deception that goes to the nature of the sexual act or a deception that is closely connected to the sexual act may be capable of vitiating consent, the present case fitted into neither category. This was the test identified in R (Monica) v. Director of Public Prosecutions [2019]QB 1019. It was argued that the act of sexual intercourse is a physical one which comprises penile penetration and usually ejaculation. In this particular case, the complainant had the freedom and the capacity to choose and consented to both aspects. The deception went not to the physical act itself but to the quality of the ejaculate and the risks associated with it.
9. Counsel for the appellant argued that the trial Judge fell into error by not distinguishing the cases of Assange and ‘F’. In the case of Assange, the allegation was that a woman consented to have sexual intercourse with him only if he wore a condom. However, he proceeded to have sexual intercourse without one. In ‘F’, the prosecution case was that the complainant consented to intercourse only on the basis that the defendant would withdraw before ejaculation, but he never intended to comply with that condition. In each of those two cases, consent was given on the basis that ejaculate would be prevented from entering the complainants’ vaginas. Preventing ejaculate from entering the vagina related to an integral part of the sexual act and was therefore closely connected with it, such that a deceit as to its performance was sufficient to negate consent. In the present case, and in contrast, the deceit went to the consequences of the sexual act and was not sufficiently connected to the sexual act itself so as to negate consent. In the present case, the complainant consented to every aspect of the physical act.
10. It was further submitted that it was wrong of the trial Judge to distinguish the case of ‘B’ where an agreement to all aspects of the sexual act that took place amounted to consent, even where the defendant had failed to disclose to the complainant his HIV status. This affected the nature of his ejaculate rather than the act itself.
Discussion
11. The Court of Appeal observed that the law concerning the impact of deception on the issue of consent to sexual intercourse had recently been reviewed in the case of R (Monica) v. DPP. In that particular case, the complainant, who was an environmental activist had an intimate relationship with a man she thought agreed with her ideological beliefs. It transpired he was an undercover officer who had infiltrated her group. The claim was to challenge the decision of the Director of Public Prosecutions not to prosecute the officer for a series of sexual offences. The complainant said that consent had been obtained on the basis of deceit and that she would not have consented to an intimate relationship had she known the man’s true identity. The decision not to prosecute was upheld following a review of the ‘evolution of the law of deception’ and its effect upon consent.
12. The cases of ‘F’ and R. v. McNally [2014] QB 593 were considered. McNally involved a teenage woman who impersonated a teenage man and secured the consent of another young woman, on that basis, to engage in digital penetrative activity. Sir Brian Leveson P, giving the judgement of the court concluded that the nature of the sexual act was “on any common sense view, different where the complainant is deliberately deceived by the defendant into believing that the latter is male”. The complainant “chose to have sexual encounters with a boy and her preference (her freedom whether or not to have a sexual encounter with a girl) was removed by the appellant’s deception”. Again in ‘F’, the Court referred to a broad ‘common-sense’ approach. However, when it came to considering the ‘common-sense’ approach in Monica, the court said the following:
“An appeal to ‘broad common sense’ in the application of any law does not relieve a court from the obligation of identifying the boundaries within which a jury will be asked to bring to bear its common sense and experience of life. For that reason, when considering the governing principle or approach it is necessary to examine how it has been applied by the courts to date. It has never applied to deceptions which are not closely connected to the performance of the sexual act or are intrinsically so fundamental, owing to that connection, that they can be treated as cases of impersonation."
13. The ‘but for’ test is insufficient of itself to vitiate consent. The court went on to consider examples where a complainant is deceived about a matter central to their choice to have sexual intercourse. There can be lies about political beliefs, marital status, lies about status or wealth to name but a few examples. None of these would amount to a vitiation of consent. A bigamist does not commit rape or sexual assault upon their spouse despite the fundamental deception involved.
14. Having considered the commentary that had taken place in the case of Monica, the Court of Appeal in the instant case came to the conclusion that a lie about fertility was different from a lie about whether a condom is being worn during sex. Equally, it was different to the situation where a person had agreed to withdraw before ejaculation but did not. The Court found that unlike in the case of Assange, the complainant agreed to sexual intercourse with the appellant without imposing any physical restrictions. She agreed to penetration and to ejaculation. The deception was one which related to the risks or consequences associated with the sexual act rather than the act itself. In terms of s.74 of the 2003 Act, the complainant was not deprived by the appellant’s lie of the freedom to choose whether to have the sexual intercourse which occurred.
15. The Court found that the present case was analogous to the position in R. v. B, where the defendant had failed to disclose that he was HIV positive. The Court took the view that it made no difference to the issue of consent whether, as in this case, there was an express deception or as in the case of ‘B’, a failure to disclose. What matters was whether the lie was sufficiently closely connected to the performance of the sexual act rather than the broad circumstances surrounding it.
16. In allowing the appeal upon the first ground, the Court concluded with the following remarks:
“Arguments about consent in cases of alleged sexual offending sometimes proceed on the assumption that the meaning of ‘consent’ is a matter for development by the common law. That was the position in the nineteenth century…..It is no longer the position because consent is defined in s.74 of the 2003 Act, with the evidential presumptions found in s.75 and the conclusive presumptions in s.76. Any novel circumstances must be considered by reference to the statutory definition, namely whether the alleged victim has agreed by choice and has the freedom and capacity to make a choice. There is no sign that Parliament intended a sea change in the meaning of consent when it legislated in 2003."
Vanessa Thomson
9 St John Street Chambers
29th July 2020