Deception as to Fertility Does Not Negate Consent

The issues raised by the recent decision in R v Jason Lawrence (2020) EWCA Crim 971 (23 July 2020)

Jason Lawrence (JL) lied to C about having had a vasectomy, contacting her the morning after they had had sexual intercourse, saying, ‘I’m still fertile sorry.’ As a consequence of two sexual encounters with JL, C became pregnant and underwent a termination. JL was prosecuted for rape on the basis that C’s consent was vitiated by his deception; he having confirmed prior to sex, that he had a vasectomy. In those circumstances it was submitted, that even if he genuinely believed that C had consented, his deceit meant that belief was unreasonable.

The definition of consent is set out within s. 74 of the Sexual Offences Act 2003, namely; ‘a person consents if he agrees by choice and has the freedom and capacity to make that choice.’ Presumptions as to the issue of consent are set out within s. 75 (evidential) and s. 76 (conclusive).

S. 76 (1) states ‘if in any proceedings for an offence to which this section applies, it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed – (a) that the complainant did not consent to the relevant act, and, (b) that the defendant did not believe that the complainant consented to the relevant act. (2) the circumstances are that – (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.’

At trial, JL applied to dismiss the two counts of rape on the basis that lying about fertility could not, as a matter of law, vitiate consent. It was submitted that not all deceptions are sufficient to negate consent and that the decisions in Assange v Swedish Prosecution Authority (2011) EWHC 2849 (Admin) and R (F) v DPP (2014) QB 581 EWHC 945 (Admin) could be distinguished. In the former, C agreed to have intercourse with A only if he wore a condom, which he either did not do or removed it during intercourse. In the latter, C consented to intercourse only on the basis that F withdrew prior to ejaculation, something he did not do. Both cases involved the prevention of the ejaculate from entering the vagina, an integral part of the sexual act and, therefore, something that was closely connected to it; a lie as to performance was sufficient to negate consent.

Deceit about fertility did not rely upon an agreement that he would not ejaculate but on the consequences of the act. A lie about fertility ran the risk, as indeed happened, of pregnancy, but it was argued that was insufficiently connected to the act of intercourse to negate consent.

It was argued that the deception as to fertility was akin to that in R v B (2007) 1 WLR 1567 EWCA Crim where B had failed to disclose that he was HIV+ and the court held that did not vitiate consent. However, the trial judge concluded that the distinction between the consequence of and that act of intercourse sought to be drawn was artificial. He distinguished R v B on the basis that the deceit was the risk of pregnancy rather than disease and that JL had made a positive assertion that he was infertile, whereas B had simply declined to mention his HIV status.

The jury were directed in accordance with s. 74 and the route to verdict asked the following questions: i) are you sure that JL falsely represented to C that he had had a vasectomy? If yes ii) are you sure that C did not consent because she relied upon that false representation and would not otherwise have agreed to the penetration? If yes iii) are you sure that JL did not reasonably believe that C consented?

The grounds of appeal were i) the judge was wrong to reject the defence application to dismiss and ii) that the judge misdirected the jury about what they needed to be sure of before they could convict.

The appeal centred around the issues raised in Assange, R v B and R (F) v DPP and the principle that a deception that either goes to the nature of the sexual act or is closely connected to it, may be capable of vitiating consent. R (Monica) v Director of Prosecutions (2019) QB 1019 (2018) EWHC 3508 (Admin) set out the test to be applied in such cases and, it was argued that the deception in this case was not so closely connected to the performance of the sexual act that it was capable of vitiating consent. Indeed, it was submitted that the judge’s ruling marked a profound change in the approach of the courts to the issue of consent and potentially criminalises many sexual acts to which factual consent had been given.

R (Monica) v DPP involved a woman engaging in a sexual relationship with a man who turned out to be an undercover police officer. The DPP refused to instigate proceedings for a number of offences including rape, a decision which was subsequently upheld.

The Court took the opportunity to trace the evolution of the law of deception as it affects consent:

  • R v Flattery (1877) 2 QBD 410 deceit about medical procedure but which in fact involved sexual activity could negative consent.
  • R v Clarence (1882) 22 QBD 23 a failure to inform C of venereal disease did not amount to an offence under the Offences against the Person Act 1861, nor one of rape.
  • R v Dee (1884) 14LR Ir 468, deceit as the identity of the defendant (pretended to be her husband) did vitiate consent because the act consented to was not the act done.
  • S. 1(2) SOA 1956 gave statutory force to the common law principle that a man who induces a married woman to have intercourse by impersonating her husband, commits the offence of rape.
  • R v Elbekkay (1995) Crim LR 163 and R v Linekar (1995) QB 250 extended that concept to mistake of identity generally.
  • S. 76(2) SOA 2003 gave statutory force to the common law bases upon which deceit or fraud negatives consent.
  • R v McNally (2014) QB 593 a deception as to gender is capable of vitiating consent.  

 

Applying the law to the facts of the current case, the Court stated that applying the ‘but for’ test, i.e. she would not have consented to unprotected sexual intercourse had she known he was fertile, is not in itself sufficient to vitiate consent. There are many instances which involve a deceit which is central to a choice as to whether to have sexual intercourse such as status, wealth, religious views. The question is rather 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.

The Court determined that a lie about fertility differs from a lie about whether a condom is to be worn, whether the penis would be withdrawn prior to ejaculation and a lie as to gender because C had agreed to intercourse with JL without imposing any physical restrictions to that physical act. That she did that only because she believed she could not become pregnant was, the Court held, insufficient to negative her consent; the deception went to the quality of the ejaculate rather than the fact of ejaculation. Applying the definition in s. 74, C was not deprived by JL’s deceit of the freedom to choose whether or not to engage in sexual activity.

This decision is bound to be the subject of much debate, with many arguing that the deception did negate C’s ability to consent, the very fact that he lied prevented her from being able to make an informed decision; she had neither the freedom nor capacity to agree by choice. But the lie, despite the risk that it carried, is far closer to the lies told by many who seek to engage in sexual activity such as that they are unmarried or extremely wealthy, than those told by Assange, F and B, which all related to the performance of the sexual act itself rather than the circumstances surrounding it.

And the Court urged a few words of caution, noting that arguments about consent in sexual offences, sometimes proceed on the assumption that the meaning of consent is a matter for development by common law. Whilst that may historically have been the case, the fact that the definition of consent is defined in s. 74 of the SOA 2003, together with the presumptions set out in s. 75 and s. 76, means that is no longer the case. Therefore, any novel circumstances have to be considered against that statutory definition, namely whether the alleged victim agreed by choice and had the freedom and capacity to make that choice. That then will be the battleground for those seeking to extend or indeed to limit the circumstances which fall within that definition.

Sarah Regan