Introduction

On 23 July 2020, the Criminal Division of the Court of Appeal returned its judgment in the case of Lawrance, which simply answered whether a lie about fertility could negate consent and therefore turn sexual intercourse into an act of rape.

Facts

Previous History and Convictions

The Appellant in this case, Jason Lawrance, is a serial rapist who in 2016 had been convicted and given a life sentence with a minimum custodial term of twelve and a half years for raping five women, attempting to rape another and sexually assaulting one woman from 2011–2014.

In July 2019, the Appellant was found guilty by a jury at Nottingham Crown Court for five further charges of rape, one further charge of sexual assault and one charge of assault by penetration.

Fertility Deceit

Two of the charges of rape for which the Appellant was convicted of in July 2019[1], occurred in July 2014 after the Appellant met a woman[2] on a dating website. After meeting on the dating website, the Appellant and Complainant exchanged text messages which became sexually explicit and one conversation led to the Complainant speaking of a previous sexual encounter. The Appellant asked if the male in the Complainant’s previous sexual encounter used a condom to which the Complainant responded that he did not as “he had the snip years ago”, the Appellant responded to that with “so did I”. Nothing further was said about fertility or the Appellant’s apparent vasectomy.

On 21 July 2014, the Appellant and Complainant met in-person and spent the evening together before returning to the Complainant’s home and engaging in sexual intercourse twice. The Complainant’s evidence was that she sought assurances from the Appellant that he did have a vasectomy as she did not wish to become pregnant and that the Appellant assured her that he had.

The Appellant left during the night and during an exchange of messages in the morning said to the Complainant “I have a confession. I am still fertile. Sorry.” The Complainant then found out that she was pregnant and subsequently terminated that pregnancy.

The Prosecution’s case in July 2019 Trial was that the Appellant’s lie about having a vasectomy vitiated the Complainant’s consent and that even if the Appellant did reasonably believe in consent then that belief would not be reasonable.

Whilst the Appellant did not give evidence during the July 2019 Trial, his defence was that of consent and that there was no discussion about the Appellant’s apparent vasectomy in the Complainant’s bedroom. The Court of Appeal noted that the jury must have accepted the Complainant’s account[3].

Application to Dismiss

Prior to the arraignment for these charges, the Appellant made an application to dismiss these two counts of rape on the basis that a lie about fertility cannot vitiate consent as a matter of law. It was submitted by the Appellant that –

Not all deceptions leading to an individual consenting in sexual intercourse are sufficient to negate consent. Assange v Swedish Prosecution Authority[4], and R (F) v DPP[5] were distinguishable. The Appellant submitted that deceit as to fertility would not be sufficient to negate consent as in Assange[6] and R (F)[7]consent was given on the basis that ejaculate would be prevented from entering the Complainant’s vaginas, whereas in this case this was not what was sought to be avoided. Further, the Appellant relied upon R v B[8]where the Appellant in that case omitted being HIV+ and that omission did not vitiate consent.

The Prosecution, in response to the application, submitted:

There was a material distinction between the present case and R v B as this case dealt with a positive deception as opposed to an omission. There was no material difference between the position of the Complainants in Assange and R (F) who both sought to avoid the risks of pregnancy, and this case, where the consent to unprotected sexual intercourse was conditional upon the Appellant’s infertility and there being no risk of pregnancy.

The Judge, upon hearing the above submissions, ruled:

If the jury accepted the evidence of the Complainant, the Appellant’s deceit would be capable of negating her consent. This case could be distinguished from R v B as that case concerned an omission to disclose HIV status as opposed to a positive representation. The Prosecution case is that the Appellant made a positive representation that he was infertile, relied upon by the Complainant. Further, the Appellant’s deceit as to fertility was sufficiently closely connected to the act of sexual intercourse as to be capable of negating consent. The distinction between this case and Assange and R (F) was of marginal relevance when the primary purpose of contraception – of any form – is to prevent pregnancy. The reason why the complainant consented to unprotected sexual intercourse was because she believed there was no risk of pregnancy.

Judge’s Summing Up

After the evidence in the July 2019 Trial had been heard, the Judge summed up the legal elements of the offence of rape and outlined the statutory definition of consent – as outlined below. He further directed the jury in relation to the difference between submission and consent[9].

The Judge further crafted a route to verdict which he gave to the jury. He directed the jury to ask themselves the following questions:

Whether they were sure that the Appellant falsely represented to the Complainant that he had had a vasectomy. If yes: Whether they were sure that she did not consent to the Appellant 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: Whether they were sure that the Appellant did not reasonably believe that she consented to him penetrating her vagina with his penis.

The Law

Before looking further into the Court of Appeal’s decision, it is first important to understand the existing law surrounding rape and consent which is contained below, insofar as relevant.

The offence of rape is contained in Section 1 of the Sexual Offences Act 2003[10] –

A person (A) commits an offence if –

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

B does not consent to the penetration, and

A does not reasonably believe that B consents.

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.

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

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 holds the 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.”

Sections 75 and 76 are concerned with a series of evidential presumptions and conclusive presumptions about consent respectively. Section 76 is the applicable Section in this case as the offence was dealing with deceit.

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 –

That the Complainant did not consent to the relevant act, and

That the Defendant did not believe that the Complainant consented to the relevant act.

The circumstances are that –

The Defendant intentionally deceived the Complainant as to the nature or purpose of the relevant act;

…

The above law is set out clearly and was explained to the jury during the July 2019 Trial. The Appellant was convicted under Section 1 of the 2003 Act as it was found that the Appellant intentionally deceived the Complainant as to the nature or purpose of the relevant act by putting forward a positive representation about having a vasectomy which negated the Complainant’s consent as the Complainant did not have the “freedom and capacity” to consent.

The question put before the Court of Appeal in April 2020 was whether the Appellant’s deceit really did negate the consent given by the Complainant.

The Appeal

Grounds of Appeal

The Appellant appealed his convictions, submitting that the two convictions for rape are unsafe, because:

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; The Judge misdirected the jury about what they needed to be sure about before they could convict the Appellant.

Submissions on Behalf of the Appellant: Ground One

Before the Court of Appeal, it was submitted by the Appellant that:

The deception in the current case is not one that goes to the nature of the sexual act or is closely connected to the sexual act and therefore capable of vitiating consent. The Appellant applied the test in R (Monica) v Director of Public Prosecutions [11] and submitted that the deception in this case went not to the physical act itself but to the quality of the ejaculate and the potential consequences and risks associated with it and was therefore not so closely connected to the performance of the sexual act that it was capable of vitiating consent.

and submitted that the deception in this case went not to the physical act itself but to the quality of the ejaculate and the potential consequences and risks associated with it and was therefore not so closely connected to the performance of the sexual act that it was capable of vitiating consent. The Judge fell into error in deciding that the deceit in Assange and R (F) was not materially different from the present case as in the present case the Complainant consented to every aspect of the physical act whereas in Assange and R (F) the Complainant’s sought to prevent ejaculation into their vaginas, which was part of the physical act. Further, the Judge was wrong to distinguish the present case and R v B as there can be no practical difference between an express and implied deception.

The Judge’s ruling in the present case marks a profound change in the Courts’ approach to consent and has the potential to criminalise many sexual acts to which factual consent must be given. To uphold the ruling would amount to an unwarranted extension of the law which is the domain of Parliament rather than the Courts.

Submissions on Behalf of the Respondent: Ground One

It was submitted by the Respondent that:

The Judge’s ruling was correct. There is no material difference between Assange and the present case as in both cases the Complainant was deceived as to the sexual intercourse itself and that deception deprived the Complainant of having free exercise of choice for the purposes of Section 74 of the 2003 Act.

The Judge was correct to distinguish R v B from the present case on the basis that there was no express deception; whereas there was in the present case. If there had been an express deception in R v B as to HIV status, similarly to the present case, then that would have been capable of vitiating consent.

The Decision

On 23 July 2020, the Court of Appeal delivered their judgment finding that the Appellant’s lie about his fertility was not capable in law of negating consent and quashed the Appellant’s two convictions on the basis that they were unsafe.

With the appeal succeeding on the first ground, the Court found there was no need to consider the Appellant’s submissions regarding the Judge’s directions in the summing up.

Ratio and Discussion of the Court

In their judgment, the Court of Appeal Criminal Division discussed the law concerning the impact of deception and the issue of consent. This discussion looked into the evolution of the law surrounding deception and how it affects consent from the case of R v Dee[12] up until the case of Monica[13].

The Court of Appeal returned to the facts of the case and noted that the jury in the 2019 Trial found that the Complainant relied upon the Appellant’s deception and that but for the lie she would not have consented to unprotected sexual intercourse. The Court of Appeal went on to say, however, that “the “but for” test is insufficient of itself to vitiate consent”[14] as there may be many circumstances in which a Complainant is deceived about a matter which is central to her choice to have sexual intercourse but where consent is not vitiated by that deception, such as in Monica, or where a person lies about marital status, wealth or political views.

The Court of Appeal went on to deal with whether the Appellant’s deception as to fertility was so closely connected to the performance of the sexual act as to negate consent.

The Court found that a lie about fertility is different from a lie about whether a condom is being worn during sexual intercourse, different from engaging in sexual intercourse with having no intention of withdrawing despite promising to do so and different from engaging in sexual activity having misrepresented one’s gender.

The Court, distinguished Assange and R (F), from the present case as they highlighted how the Complainant in the present case agreed to sexual intercourse without imposing any physical restrictions – she agreed to the physical penetration of her vagina and to the ejaculation without the protection of a condom. The Court went on to say that the Complainant in the present case was deceived as to the nature or quality of ejaculate and therefore the deception was one which related not to the physical performance of the sexual act but to the risks or consequences associated with it. The Court added that the question of consent could not be affected by whether pregnancy followed or not.

The Court further ruled that the Complainant was not deprived of her freedom to choose to have sexual intercourse, per Section 74 of the 2003 Act, by the Appellant’s lie.

In discussing R v B, the Court of Appeal took the view that it made no difference to the issue of consent whether there was an express deception or a failure to disclose. The issue is whether the Appellant’s lie was sufficiently closely connected to the performance of the sexual act, rather than the broad circumstances surrounding it.

The Court finally dealt with the Appellant’s final submission, that being upholding this ruling would be an unwarranted extension of the law which is for Parliament and not the Courts. The Court of Appeal agreed with the Appellant, with Lord Burnett of Maldon CJ stating at paragraph 42[15] –

“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 when the seminal cases on impersonation and misconduct during medical examinations were decided. It is no longer the position because consent is defined in section 74 of the 2003 Act, with the evidential presumptions found in section 75 and the conclusive presumptions in section 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 that choice. There is no sign that Parliament intended a sea change in the meaning of consent when it legislated in 2003. The Law Commission and Criminal Law Revision Committee, as we have noted above, have both in their turn drawn attention to the acute difficulties in dealing with the circumstances where someone had been tricked into consenting to sexual contact as a result of misrepresentations. We echo the observations of Latham LJ that these issues require debate as matter of social and public policy.”

As previously noted, the Court of Appeal allowed the Appellant’s appeal and quashed the two relevant convictions on the basis that they were unsafe. As the appeal succeeded on the first ground, the Court did not need to consider the Appellant’s submissions regarding the Judge’s directions in the summing up in the July 2019 Trial.

Conclusion

Any ruling made around the 2003 Act has the potential for controversy as offences contained in the 2003 Act are clearly sensitive ones of rape and sexual assault which have their own issues above and beyond the individual offences, such as evidential issues and the stigma surrounding sexual offences. Therefore, it is incredibly important that any Judge, and especially those in the senior courts, come to a well-reasoned and – ultimately – correct judgment when dealing with the law surrounding sexual offences.

I have outlined the submissions that were made by each party during the 2019 Trial for the application to dismiss and once again for the appeal which was put before the Court of Appeal this year and in my view, I can see that in both instances, the submissions were centred around the rulings in Assange, R (F) and R v B and whether they could be distinguished from or apply to the present case and whether lying about fertility was so closely related to the performance of sexual intercourse as to negate the Complainant’s consent.

At first glance, it is easy to agree with the Prosecution/Respondent in saying that Assange and R (F) are indistinguishable from the present case as the Complainant in her evidence made it clear that she would not have had unprotected sexual intercourse with the Appellant had he not lied to her – clearly linking the Appellant’s lie to the physical act. Further, it is also easy to agree with the Prosecution/Respondent in that R v B can be distinguished from the present case as the present case was concerned with a positive representation as opposed to a mere omission.

However, upon reading the judgment of the Court of Appeal, it is clear to see that the Court looked at the act in depth, looked beyond the “but for” test, and delivered a well-reasoned judgment in finding that the lie in the present case was not so closely related to the sexual act to negate the consent given by the Complainant. Simply put, the Court found that the Complainant consented to having sexual intercourse with the Appellant without imposing any conditions – if he had not lied to her about his fertility then she would have most likely have required him to wear a condom, and would not have withdrawn her consent to having sexual intercourse as a whole, as opposed to Assange and R (F)where consent to sexual intercourse as a whole would likely be withdrawn if the Complainant’s knew of the intended deceit in those cases. The important factor to consider in this case – and most likely in other cases of deceit – is not that there was deceit but what the impact of the deception was on the physical act itself.

Further, in finding that the lie in the present case was not so closely related to the physical sexual act, the fact that the lie was a positive deception held no relevance to the issue of consent, causing the Prosecution/Respondent’s submission regarding R v B to fail – which is controversial, however, sensible in following the law.

The Court’s ruling that the Appellant’s lie was a deception as to the nature or quality of ejaculate and not to the physical performance of the sexual act and therefore is not able, in law, to negate the Complainant’s consent, in my view, is well-reasoned and correct – that is not to say, of course, that the Appellant’s deceit is not morally and ethically wrong. However, it would be interesting to see how this judgment impacts upon similar legal challenges in the future regarding consent.

[1] Hereafter, “the July 2019 Trial”

[2] Hereafter, “the Complainant”

[3] R. v Lawrance [2020] EWCA Crim 971 at [7] per Lord Burnett of Maldon CJ

[4] Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin)

[5] R (F) v DPP [2014] QB 581, [2013] EWHC 945 (Admin)

[6] Op. Cit., n 4

[7] Op. Cit., n 5

[8] R v B [2007] 1 WLR 1567, [2006] EWCA Crim 2945

[9] Op. Cit., n 3 at [16]

[10] Hereafter, “the 2003 Act”

[11] R (Monica) v Director of Public Prosecutions [2019] QB 1019, [2018] EWHC 3508 (Admin) at [74]

[12] R v Dee [1884] 14 LR Ir 486

[13] Op. Cit., n 11

[14] Op. Cit., n 3 at [34]

[15] Op. Cit., n 3 at [42]