Does a lie about fertility negate consent?

This article examines the recent Court of Appeal decision in R v Lawrence EWCA Crim 971. The Court had to determine whether a lie by the appellant as to his fertility could, in law, negate the consent given by the complainant.

The facts:

The complainant and the defendant had met following meeting on a dating website. Before they met, they had exchanged messages in which they the defendant had asserted he had had a vasectomy. They subsequently met one evening and returned to the complainant’s address. Prior to sexual intercourse the complainant asked the defendant if he had had a vasectomy, he assured her he had (it appears the jury accepted the complainant’s account as to this). They subsequently engaged in sexual intercourse without contraception. The following morning the defendant messaged her, stating that he was in fact fertile. She became pregnant and later underwent an abortion.

The Crown’s case was that the deception by the defendant vitiated the complainant’s consent.

The trial judge ruled on an application to dismiss that the appellant’s deceit as to his fertility was capable of negating the complainant’s consent in law. The defendant was subsequently found guilty on two counts of rape concerning the sexual intercourse that took place that evening.

The defendant appealed on the basis that the deception in this case did not go to the nature of the sexual act and nor was it so closely connected to the sexual act.

Definition of Consent:

Consent is defined under section 74 of the Sexual Offences Act 2003 (‘the Act’):

For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.

Section 76(2) deals with situations in which it is to be conclusively presumed that the complainant did not consent and that that he defendant did not believe that the complaint consented. They are:

(a)the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;

(b)the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.

The Court held that the facts of this appeal did not fall within either situation under s76(2).

Previous cases:

The Court noted recent jurisprudence in which it has been decided that:

• Complainant consented to intercourse on the basis that the defendant would withdraw prior to ejaculation but he did not do so – Court held that consent was vitiated (R (F) v DPP [2014] QB
• Complainant consented on the basis that the other would wear a condom but he either chose not to do so or removed it during intercourse – Court held that consent would be vitiated (Assange v. Swedish Prosecution Authority [2011] EWHC 2849 (Admin)
• Defendant did not disclose that he was HIV+, although he had not given a representation that he did not have HIV – Court held that consent was not vitiated (R v B [2007] 1 WLR 1567).
• Woman had engaged in an intimate relationship with a man who turned out to be an undercover police officer who had infiltrated her group – Court held that consent was not vitiated (R (Monica) v. Director of Public Prosecutions [2019] QB 1019).
• The defendant, female, impersonated a teenage male and on that basis the complainant consented to digital penetrative activity – Court held that consent was vitiated (R v McNally [2014] QB 593)

Judgment:

The Court noted that the key question was whether the “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.” (emphasis added).

The Court held that the deception in this case was qualitatively different from that concerning representations as to the wearing of a condom, withdrawal prior to ejaculation and as to one’s gender. And the Court distinguished the instant case from Assange and R(F) on the basis that consent in each of those cases was imposed with a physical restriction.

The Court decided that in the instant case the deception went to the ‘risk or consequences associated’ with sexual intercourse but did not go to the physical performance of the sexual act itself. For those reasons, the Court held that the appellant’s lie as to his fertility was not capable in law of negating consent and, consequently, quashed the convictions of rape.

Commentary:

The Court’s ruling emphasises the following:

• The meaning of consent is found within the Act under sections 74-76;
• ‘novel circumstances’ are to be considered by reference to the Act;
• In deception cases, for the deceit to be capable of vitiating the complainant’s consent, it must go to the performance of the sexual act, ‘rather than the broad circumstances surrounding it’, such as the consequences of the sexual act.

However, the Court’s judgment does not provide any real guidance as to the line between a deceit which is ‘so closely connected to the nature or purpose of sexual intercourse’ and one which merely goes to the broader circumstances surrounding it. The Court notes examples at [34] of cases where the deceit will not meet this threshold, such as where the lie is to marital status, political or religious views, employment or wealth etc. However, those examples are qualitatively different from the instant case: they do not concern the consequences of sexual intercourse.

Perhaps, therefore, this is a case which should be seen to be at the limits of where a deceit will not vitiate consent. Certainly, there is an apparent unease with the distinction made between this case and the cases of Assange and R(F) above. The focus on the imposition of a physical restriction is questionable: the complainant’s apparent concern was to the risk of pregnancy, had it been the case that the defendant had not lied to her she may have asked him to use a condom.

Nathan Davis

Nathan is a common law pupil who is currently undertaking his second six.