R v Lawrence [2020] EWCA Crim 971

Hearing date: 30 April 2020

What the case decides

The fully capacitated complainant here agreed to sexual intercourse with the appellant without imposing any physical restrictions.

The man told her he had had a vasectomy. She agreed both to penetration of her vagina and to ejaculation without the protection of a condom. She got pregnant and accused him of rape.

In so doing she was deceived about the nature or quality of the ejaculate and therefore of the risks and possible consequences of unprotected intercourse.

However, the Court of Appeal decided that the deception was one which related not to the physical performance of the sexual act, but to risks or consequences associated with it. The question of consent could not be affected by whether pregnancy followed or not; and neither could it be affected by the gender of the person who was guilty of deceit.

It is noteworthy that if the individual had been cognitively impaired, her ability to understand the consequences of sex include pregnancy for a woman or not understand the relevance of the assurance of a vasectomy would probably have been sufficient to sustain the prosecution on the wider ground that informed consent was lacking (if one considers the CoP caselaw on the different meaning of consent in relation to engaging in sex at all).  

What Happened

The appellant (Mr A) told his intended sexual partner (Ms B) that he had had a vasectomy. On that basis, she agreed to have unprotected sexual intercourse with him, where otherwise she would have insisted on using a condom. Ms B made it clear she did not want to become pregnant, and Mr A repeatedly assured her he had ‘had the snip’.

The next morning, Mr A texted her stating ‘I have a confession. I’m still fertile. Sorry.”

Ms B later discovered that she was pregnant and underwent a termination.

The prosecution argued that Ms B’s consent was negated by Mr A’s deception. Mr A was convicted of rape, and appealed to the Court of Appeal to overturn the conviction.

The Law

Section 1(1) of the Sexual Offences Act 2003 (“the 2003 Act”) provides:

(1) A person (A) commits an offence if—

(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

(b) B does not consent to the penetration, and

(c) A does not reasonably believe that B consents.

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

(3) Sections 75 and 76 apply to an offence under this section.

(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.”

Section 74 of the 2003 Act provides the basic definition of consent:

“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 75 is concerned with a series of evidential presumptions (not in issue in this appeal) and 76 sets out “conclusive presumptions about consent”:

(1) If in 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.”

The trial Judge had directed the jury on the legal elements of the offence of rape. In relation to the issue of consent he summarised the effect of section 74:

“A complainant consents to having sexual intercourse if she agrees by choice to the penetration and has the freedom and capacity to do so.”

“As consent is based upon a complainant’s agreement by choice to have sexual intercourse with another person, a woman may choose to have sexual intercourse with a man only if he wears a condom and, if he does not do so, it would be open to you to determine that the complainant had not consented to the penetration… Likewise, where a woman agrees to have sexual intercourse with a man in the belief that he has had a vasectomy, if the man has deceived the woman into believing that he has had a vasectomy when he has not done so it would again be open to you to determine that, if she would not otherwise have agreed to have sexual intercourse with the man she did not consent to the penetration.”

The trial Judge had directed the jury members to ask themselves the following questions:

i) Whether they were sure that Mr A falsely represented to Ms B that he had had a vasectomy. If yes, then:

ii) Whether they were sure that she did not consent to Mr A penetrating her vagina with his penis because she relied upon that false representation and would not otherwise have agreed to be penetrated by him. If yes:

iii) Whether they were sure that Mr A did not reasonably believe that she consented to him penetrating her vagina with his penis.

On appeal, Mr A submitted:

i) Not all deceptions leading to an individual consenting to sexual intercourse are sufficient to negate consent.

ii) Assange v. Swedish Prosecution Authority [2011] EWHC 2849 (Admin) and R (F) v. DPP [2014] QB 581[2013] EWHC 945 (Admin) were distinguishable. In Assange, the prosecution case was that the complainant agreed to sexual intercourse only if Mr Assange wore a condom, but either he did not do so, or removed it during intercourse. He was convicted. 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 and did not do so.

It was submitted that deceit as to fertility would not be sufficient to negate consent.

In the two cases the consent was given on the basis that ejaculate would be prevented from entering the complainants’ vaginas, whereas in Mr B’s case this was not what was sought to be avoided. 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 contrast, for Mr B, the deceit went only to the consequences of the sexual act – that is the risk of pregnancy, and was insufficiently connected with the sexual act to negate consent, it was submitted.

The prosecution also relied on R v B [2007] 1 WLR 1567[2006] EWCA Crim 2945 where the appellant had not disclosed that he was HIV+, and consent was not vitiated in that case.

iii) there was no evidence upon which a jury could be sure that the offence of rape had taken place and the judge should therefore have acceded to the defence submission that there was no case to answer and withdrawn these counts from the jury’s consideration; and

iv) the judge misdirected the jury about what they needed to be sure about before they could convict the appellant.

The prosecution submitted:

i) That there was a material distinction between this case and R v B which concerned a failure to disclose a risk of disease rather than a positive deception concerning fertility.

ii) There was no material difference between the position of the complainants in Assange and R (F) v. DPP, both of whom sought to avoid the risks of pregnancy, and this case, where consent to sexual intercourse was conditional upon his infertility and thus no risk of pregnancy.

What was found

It makes no difference to the issue of consent whether there was an express deception or, a failure to disclose (as in the case of R v. B). The issue was whether the appellant’s lie was sufficiently closely connected to the nature or purpose of the sexual act, rather than the broad circumstances surrounding it. In this case, it was not.

The Court discussed the narrow circumstances where the law recognises that a deception of this nature extinguishes consent so that it has the potential to be rape under S76(2):

  1. Where there is a deception as to the identity (including sex) of the other person.

R v. Clarence [1882] 22 QBD 23 – a man who did not inform his wife that he had venereal disease did not commit an offence under the Offences Against the Person Act 1861;

Assange concluded that section 76 of the 2003 Act had no application because there was no deception as to identity or the nature or purpose of the act. The question whether the deliberate failure to wear a condom in these circumstances meant there was no consent was to be judged by section 74;

 R (F) v. DPP  the evidence relating to “choice” and the “freedom” to make any particular choice must be approached in a broad common-sense way. If before penetration began the [man] had made up his mind that he would penetrate and ejaculate within the claimant’s vagina, or even, because “penetration is a continuing act from entry to withdrawal” (see s.79(2) of the 2003 Act) he decided that he would not withdraw at all, just because he deemed the [woman] subservient to his control, she was deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based. Accordingly, her consent was negated. Contrary to her wishes, and knowing that she would not have consented, and did not consent to penetration or the continuing of penetration if she had any inkling of his intention, he deliberately ejaculated within her vagina. In law, this combination of circumstances falls within the statutory definition of rape.”

  1. Where there is a deception as to whether ejaculate will be deposited inside the other person;

(a) R v. Clarence [1882] 22 QBD 23 – a man who did not inform his wife that he had venereal disease did not commit an offence under the Offences Against the Person Act 1861;

(b) Assange concluded that section 76 of the 2003 Act had no application because there was no deception as to identity or the nature or purpose of the act. The question whether the deliberate failure to wear a condom in these circumstances meant there was no consent was to be judged by section 74;

(c) R (F) v. DPP – the evidence relating to “choice” and the “freedom” to make any particular choice must be approached in a broad common-sense way. If before penetration began the [man] had made up his mind that he would penetrate and ejaculate within the claimant’s vagina, or even, because “penetration is a continuing act from entry to withdrawal” (see s.79(2) of the 2003 Act) he decided that he would not withdraw at all, just because he deemed the [woman] subservient to his control, she was deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based. Accordingly, her consent was negated. Contrary to her wishes, and knowing that she would not have consented, and did not consent to penetration or the continuing of penetration if she had any inkling of his intention, he deliberately ejaculated within her vagina. In law, this combination of circumstances falls within the statutory definition of rape.”

The Court stated that a lie about fertility is different from a lie about whether a condom is being worn during sex, different from engaging in intercourse not intending to withdraw having promised to do so, and different from engaging in sexual activity having misrepresented one’s gender.

The Court found that the lie about fertility was not capable of negating consent and quashed the man’s convictions relating to the fertility lie. It was the consequences of the sexual act that was agreed to that had changed (i.e. the risk of pregnancy), not the act itself.

https://www.bailii.org/ew/cases/EWCA/Crim/2020/971.html

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