Should Mistaken Consent Still Be Consent? In Defence of an Incremental Understanding of Consent in the Sexual Offences Act 2003

Abstract

The article considers the recent case of R v Lawrance [2020] EWCA Crim 971 and the way in which the courts are deciding to interpret the concept of freedom under s. 74 of the Sexual Offences Act 2003. It is argued that the case shines a light upon the lacuna present in the Act with regards to deception and consent, identified by academics when the Act was promulgated. It is suggested that the definition of consent lacks clarity as courts have struggled in its application. The resulting ‘so closely connected’ test developed in the cases of R (on the application of Monica) v DPP [2018] EWHC 3508 (Admin); [2019] QB 1019 and R v Lawrance [2020] EWCA Crim 971 is not an adequate solution to the problem of deception and consent and potentially muddies the waters further. The article offers a potential solution that might better uphold the ambition of protecting sexual autonomy while adhering to the concept of fair-labelling.

Keywords

Sexual offences deception consent Lawrance SOA 2003 rape

Introduction

The recent case of Lawrance ¹ has revived the debate on consent within the framework of the Sexual Offences Act 2003 (SOA 2003) and, more specifically, the impact of deception on consent. The facts of the case are straightforward. The defendant (D) and the complainant (C) had two sexual encounters after having met via a dating app. The question of D having had a vasectomy was raised during their initial exchange of messages and again (according to C) before the sexual act itself. It was clear from their exchanges and C’s statement that this was a condition to their unprotected intercourse. The Court of Appeal ruled that this condition was too distant from the act itself to vitiate consent, that fertility pertained to the consequences of the act rather than the act itself.² The explanation for this decision was threefold: (i) the complainant imposed no physical restrictions to the act; (ii) under s 74 SOA 2003, the deception did not impact the complainant’s freedom; and (iii) (as a secondary comment) had the situation been reversed, that is, a lie about a woman’s fertility, the decision would have been the same.

The case was examined in light of a series of cases concerning deception and consent that preceded it.³ It focused on three in particular, that of Assange,⁴ R(F) ⁵ and Monica,⁶ which all concerned a form of deception regarding the conditions to consent surrounding the sexual encounter; the use of a condom, the performance of coitus interruptus and false identity, respectively. The defendants in Assange and R(F) were convicted of rape as the conditions of the use of a condom and penile retraction before ejaculation were deemed to pertain to the nature of the sexual act itself. Conversely, in Monica, the deceit as to the identity of the undercover officer was held to be too distant from the sexual act itself, thus not meeting the required threshold of consent vitiation. In light of these cases, it becomes clear that the Court of Appeal in Lawrance was attempting to draw a line as to what conditions surrounding the sexual act are deemed to be sufficiently proximal to impact consent to said act. There are two analytical problems in the Lawrance judgment that highlight the intrinsic issue of deception in SOA 2003. Each will be examined in turn, followed by a proposal of a simple amendment that could unify the approaches in various cases and close a gap in the law of sexual offences.

An Artificial Distinction That Highlights a Gap in the SOA 2003

The first issue is the artificial balance that the Lawrance judgment creates between itself and the cases of Assange and R(F). ⁷ The distinction with these cases is made as to the physical restriction demanded by the complainant:

Unlike the woman in Assange, or in R(F), the complainant agreed to sexual intercourse with the appellant without imposing any physical restrictions. She agreed both to penetration of her vagina and to ejaculation without the protection of a condom.⁸

This seems arbitrary as a vasectomy could easily be interpreted as an internal physical restriction as the procedure involves cutting, sealing or blocking the tubes that carry sperm from a man’s testicals to the penis.⁹ This distinction amounts to making seminal fluid (ejaculate devoid of its spermatozoa) part of the sexual act and spermatozoa not. If a line must be drawn, why not draw it before ejaculation, and exclude any discussion of seminal fluid, as s 1 of the SOA 2003 only mentions penetration.¹⁰

The introduction of the ‘so closely’ connected test developed in Monica and reiterated in Lawrance represents a new development in the law on consent. This was accepted in the Monica judgment:

What may be derived from Assange is that deception which is closely connected with “the nature or purpose of the act”, because it relates to sexual intercourse itself rather than the broad circumstances surrounding it, is capable of negating a complainant’s free exercise of choice for the purposes of section 74 of the 2003 Act. Whilst this may represent a relatively modest extension of the way in which the law examines “consent” in the context of sexual offending it does not support what would be the profound change in approach to consent advanced on behalf of the claimant.¹¹

It is tempting to think that Lord Burnett of Maldon CJ, who delivered both the Monica and Lawrance judgments, was attempting to deviate the trajectory that the law on consent was taking, that is, that any deception pertaining to the nature of the performance of the sexual act could vitiate consent. While understandable for reasons discussed in the next sections, it has created confusion in the law. It is now unclear how, for example, deception with regard to a woman menstruating might impact consent. Before the formulation of the ‘so closely’ test, it would most likely have negated the sexual partner’s consent. After Lawrance, this is less clear. Does the quality of the vaginal fluid pass the high proximity threshold set by Lawrance?

The decision in Lawrance was arguably reached through a process of backwards reasoning, as the conclusion, it is submitted, is correct. Indeed, when considering rape, its meaning and broader implications,¹² deceit with regard to fertility seems disproportionate in gravity and blameworthiness compared to the substantive offence of rape. The law on sexual offences is often discussed in terms of protection of sexual autonomy.¹³ Undeniably this concept was at the heart of the SOA reform as stated in the Home Office-led review Setting the Boundaries:

Primarily crimes against the sexual autonomy of others. Every adult has the right and the responsibility to make decisions about their sexual conduct and to respect the rights of others. No other approach is viable in a society that values equality and respect for the rights of each individual. We concluded consent was the essential issue in sexual offences, and that the offences of rape and sexual assault were essentially those of violating another person’s freedom to withhold sexual contact.¹⁴

Sexual autonomy is defined, for the purposes of this essay, as ‘the right to decide with whom and under what circumstances to have sex’.¹⁵ However, some academics when specifically theorising rape have argued that it goes beyond the violation of sexual autonomy and violates the ‘very self’ of the victim.¹⁶ In a case of deceit as to fertility such as Lawrance, it is possible to say that the victim’s sexual autonomy was violated, as her right to decide under what circumstances to have sex was infringed upon, but not her sense of self. Thus, a conviction of rape would be too high a threshold of criminalisation.¹⁷ If rape is considered in these terms, it is argued that Assange was wrongly decided¹⁸ and that the use of a condom does not impact the notion of self of the victim but does impact her sexual autonomy and thus demands a lower level of criminalisation than that of rape. Unfortunately, the SOA 2003 does not provide such a lesser conviction. This gap was identified by Ashworth and Temkin as soon as the legislation was promulgated: ‘when a court is deciding whether a particular deception or threat is sufficient to negative ostensible consent, it is effectively deciding between conviction of a serious offence and a complete acquittal. There is no lesser offence, no middle way’.¹⁹ Spencer has argued for a return of the s 3 offence of procuring sex by false pretences of the Sexual Offences Act 1956,²⁰ as this would provide a ‘middle way’ offence and deal with the issue of deception and consent. This offence covered situations where sexual acts were agreed to on the basis of misrepresentations on the part of the defendant. It will be argued in the last section of this essay that a return to this previous legislative position is unnecessary. Instead, there should be better prosecutorial use of the offence contained in s 4 SOA 2003, causing someone to engage in sexual activity, as well as a modified definition of consent contained within s 74 SOA 2003.

Lawrance Changes the Relation Between s 76 and s 74 SOA 2003 Leaving Deception and Consent in a Fragile Position

The conclusive presumptions of non-consent set out by s 76 concern deceptions with regard to (i) nature and purpose of the act and (ii) impersonation. It was clear that Parliament intended this section as a simple reflection of previous case law, as stated in Home Affairs Committee, Sexual Offences Bill: ‘the amended Clause [76] is now confined to two very specific (and indeed unusual) situations involving deception and impersonation, both of which reflect the existing law’.²¹ The cases reflected in this section are that of R v Elbekkay,²² an impersonation of the victim’s boyfriend, and the cases of R v Flattery ²³ and R v Williams,²⁴ both involving deceptions with regard to the nature of the acts, the victims being under the impression they were not for sexual purposes.

Some academic commentary has questioned the relationship between s 74 and s 76. Miles and Rogers argue that s 76 should be interpreted as an exhaustive list of deceptions able to vitiate consent.²⁵ They submit that deceptions falling within the scope of s 74 only concern deceptions with regard to the sexual act itself. This interpretation, however, poses a problem. By nature, s 76 being conclusive and allowing no rebuttal, a broad understanding of the section might open courts to ECHR challenges. In practice, the courts have not taken this approach, s 76 has been interpreted very narrowly and has been applied only to facts that match precisely the jurisprudence that inspired the section.²⁶

It was established in Jheeta ²⁷ that deceptions which do not fit the very narrow scope of s 76 could be considered under s 74. This means that all deceptions regarding choice must be dealt with under this section.²⁸ Again, as s 76 denies the defendant a rebuttal, it stands to reason that consent issues satisfying the requirements of s 76 can also be dealt with under s 74. Consequently, the sections are hierarchical. This position is also supported by Temkin and Ashworth who commented that:

s.76 creates two conclusive presumptions of the absence of consent and of belief as to consent where there is deception as to the nature and purpose of the act or the identity of the defendant. But this leaves other cases of deception to be dealt with under the broad definition of consent as agreement by choice (s.74).²⁹

This perspective was reiterated by the courts in Assange, R(F) and B.

However, Monica fundamentally changed this approach. The judgment handed down by Lord Burnett of Maldon CJ seems to create a new relationship between the sections. This link, which Ormerod states now amounts to a novel ‘overriding principle’,³⁰ is made for no apparent reason. The court in Monica was open to seeing the definition of consent evolve.³¹ The principle, which is reiterated in Lawrance, established that:

deception which is closely connected with “the nature or purpose of the act”, because it relates to sexual intercourse itself rather than the broad circumstances surrounding it is capable of negating a complainant’s free exercise of choice for the purposes of section 74 of the 2003 Act.³²

The principle is argued to be the natural extension of that established in Assange, but clearly it is not. It is a repurposing of the Assange judgment. Assange clearly states that deceptions that do not fit the narrow confines of s 76 are to be examined under s 74:

It would, in our view, have been extraordinary if Parliament had legislated in terms that, if conduct that was not deceptive could be taken into account for the purposes of s.74, conduct that was deceptive could not be³³

In some sense, the Monica extension reflects the approach taken by Rogers and Miles. However, this is fundamentally problematic because the ‘closely connected test’ creates situations where some deceptions might satisfy the requirements of s 76 and but fail the new interpretation of s 74. For example, if a woman were to falsely state that she was homosexual and ask a homosexual man to have sex with her to produce offspring, but she was in fact heterosexual and only wanted to gain sexual pleasure from the interaction, she would be liable under s 4 of the SOA 2003 as the man’s consent would be negated under s 76(a), that is, a deception with regard to the purpose of the sexual act. However, following Lawrance his consent might not be vitiated under s 74, because the deception was not so closely connected to the act. He was indeed agreeing to sexual intercourse with a woman, her non-homosexuality and her non-desire to produce offspring would fail to meet the Monica test. The reason this is fundamentally problematic is twofold (i) the lack of logic stated in Assange ³⁴ and (ii) the nature of s 76 being conclusive presumptions. It is argued that the Lawrence judgment might have been a case of backwards reasoning in the name of fair-labelling.³⁵

Another issue with linking these sections in this novel way means that consent as defined under the SOA 2003 is now out of step with other non-fatal offences against the person in two key ways: (i) it changes the understanding of freedom by diluting the knowledge and consent link and (ii) it changes the delimitation of the sexual act. It was noted by the Law Commission that consistency among non-fatal offences against the person was indeed desirable.³⁶ The cases of Dica ³⁷ and Konzani ³⁸ dealt with the transmission of HIV to unknowing sexual partners and their criminalisation under s 20 of the Offences Against the Person Act 1861 (OAPA 1861). Judge LJ in Dica clearly stated that consent was linked to knowledge and the deprivation of information impacted the freedom of choice.³⁹

Given the long-term nature of the relationships, if the appellant concealed the truth about his condition from them, and therefore kept them in ignorance of it, there was no reason for them to think that they were running any risk of infection, and they were not consenting to it.⁴⁰

In these cases, it was obvious that active deception was different from passive deception because of the impact the distinction had on the victim’s capacity and the victim’s responsibility to the risks involved with intercourse.⁴¹ This is logical when deception is linked to knowledge. The judgment in Monica, by removing this link and displacing the argument, is effectively stating that there are situations where the victim’s autonomy is of no consequence, situations too far removed from the sexual act. This goes against the principle of sexual autonomy upheld by the criminal law.⁴²

The second complication arising from the Lawrance judgment is the conceptualisation of what pertains to the sexual act. While s 1 of the SOA 2003 only mentions penetration, cases involving the mental capacity of the victim extend the understanding to the risks involved, that is, the potential direct consequences. These cases clearly pose the question of whether the victim understands the risks involved with sexual intercourse, that of sexually transmitted diseases and pregnancy. As stated by Hedley J in A Local Authority v H ⁴³:

Clearly a person must have a basic understanding of the mechanics of the physical act and clearly must have an understanding that vaginal intercourse may lead to pregnancy. Moreover it seems to me that capacity requires some grasp of issues of sexual health.⁴⁴

This judgment seems to suggest that the direct consequences of the sexual act are in fact part and parcel of the sexual act because having the capacity to understand the act involves having the capacity to understand its direct implications. In light of this, it would seem strange that the ‘capacity’ requirement (the ability to understand the act and its risks) would differ from the ‘freedom’ requirement (the willingness to take action and said risks) within the same section of the legislation. Surely, if capacity extends to the act and its direct consequences, then freedom must also. The Lawrance judgment seems to try and circumvent this problem by equating a lie about female and male fertility. Indeed, by drawing this parallel, the gap between the act and its consequences is widened. This is a strange idea as pregnancy is an inherently female condition that has health implications. It would amount to equating pregnancy to parenthood, which while one leads to another are substantially different things.⁴⁵

Looking at consent across various areas of law, it is clear that the concept is treated differently according to the criminal offence or civil cause of action.⁴⁶ This is reasonable as the threshold of criminalisation needs to be intrinsically higher.⁴⁷ However, it does pose a question as to the protection of individual autonomy which seems to be better protected in contract law when faced with misrepresentation than under the SOA 2003.⁴⁸ Indeed, criminal law has struggled to create uniformity in the definition of consent across offences, which has led to criticism.⁴⁹ Namely that some criminal offences have statutory definitions of consent while others do not.⁵⁰ This essay would push the point further to say that s 74 is a poor attempt at creating a statutory definition, which has led to courts grappling with what is capable of vitiating consent as previously exposed. However, if the knowledge-consent link is respected, a sliding understanding of consent is possible that increases in strictness as the offences’ blameworthiness augments. This would match the practical realities of consent, as surely consent to the touching of an arm is a looser form of consent than the consent to the touching of one’s genitals.

It is important to remember that whether or not rape is a fair-labelling of what happened to the complainant in Lawrance, ‘but for’ the deception she would not have engaged in the act, and the law must recognise this. Lord Burnett of Maldon CJ stated in Lawrance that: ‘the “but for” test is insufficient of itself to vitiate consent’. However, if sexual autonomy is to be taken seriously as Parliament intended, it has to be part of the question. As indeed Schulhofer states: ‘nonviolent impairment of sexual autonomy though it should not be considered “rape”, is nonetheless an egregious abuse that warrants serious criminal sanctions’.⁵¹

A Proposed Solution: A Broader Use of s 4 SOA 2003 and an Incremental Definition of Consent

The proposed solution to the identified problems in these cases is twofold: (i) a broader use of s 4 of the SOA 2003 and (ii) an amendment to s 74 of the SOA 2003. While the ‘penetrative part’⁵² of s 4 seems to have been intended for cases of sexual activity with a third party, who may be willing or not, or sexual activity with the offender,⁵³ there seems no reason why cases of active deception leading to intercourse could not be treated under this section if the definition of consent under s 74 is slightly altered. The proposal is to add two subsections to s 74.⁵⁴ These would establish a broad and narrow understanding of consent, respectively, to match the difference of blameworthiness between ss 1–2 and ss 3–4 of the SOA 2003. This seems appropriate as the judge enjoys comparatively lesser sentencing power when dealing with ss 3–4 which is reflective of those offences being considered less serious. A broader understanding of consent for these sections would allow for a ‘middle ground’ offence to be charged under s 4. The following is a suggested statutory construction:

74 “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.

For the purposes of section 1 and 2, choice concerns the strict performance of the sexual act, the penetration of the vagina, mouth or anus.

For the purposes of section 3 and 4, choice will include the wider surrounding circumstances involved in the performance of the sexual acts.

This simple clarification would solve several issues: (i) the fair-labelling of rape; (ii) the protection of victims’ sexual autonomy in a wider sense; and (iii) an alignment of recent cases across various offences against the person.

Rape attracts a minimum sentence of four years’ imprisonment.⁵⁵ This matches the blameworthiness of the offence and the idea that rape is an offence that goes to the core of the person. The previous offence of procuring sex by false pretences, mentioned above, carried a sentence of two years’ imprisonment.⁵⁶ It is argued that such a specific offence need not be resurrected because s 4 could be used to cover such cases in combination with a more detailed s 74 as described above. Moreover, this previous offence was gendered, which limited its use.⁵⁷ Section 4, causing someone to engage in sexual activity, has sentencing flexibility (from high order community services to 15 years’ imprisonment) and can cover a wide variety of situations of varying gravity.

Creating an incremental approach to consent would allow for a better protection of sexual autonomy, specifically in cases of active deceit. This would acknowledge, in law, that certain active deceptions induce complainants into mistaken consent and that there are legal consequences to this as the person’s sexual autonomy is impacted. The cases of Linekar,⁵⁸ Assange, Lawrance, Monica and possibly R(F) would have fallen under this category of offence, creating more legal consistency.⁵⁹

Consistency with other areas of law would also be achieved as HIV cases such as Dica and Konzani could be prosecuted via either s 20 of the OAPA 1861 or s 4 of the SOA 2003, with both having a similar understanding of consent. Cases such as B,⁶⁰ which involved passive deceit, would fall under neither offence thus maintaining a fair balance between the complainants’ and defendants’ responsibility as to the risks involved.⁶¹ Affirming the difference between active and passive deception in this way would follow an orthodox philosophical conceptualisation of deceit that is defined as: ‘the communication of a message that is intended to cause a person to believe something that is untrue’.⁶² Moreover, it would also underline the logical link with the mens rea of the offences: reasonable belief in consent.⁶³

The question of how this proposed amendment would impact s 76 of the SOA 2003, which also concerns deception, must be addressed. The reality in practice is that this provision is rarely used as it reflects very specific prevailing case law.⁶⁴ It is argued that the section would remain unaffected and be used for the very specific type of cases it covers.

Conclusion

If sexual offences legislation exists to safeguard sexual autonomy as defined by Schulhofer as ‘the freedom of every person to decide whether or when to engage in sexual relations’,⁶⁵ it requires the definition of acceptance and rejection to be clearly defined in law. It follows that consent is always to a certain degree conditional and that legislation must clarify what conditions meet the criminal standard and can thus vitiate it. As stated in the Lawrance judgment, it is not the remit of the courts to assume this task.⁶⁶ This essay has argued that s 74 of the SOA 2003 fails to meet this objective and has sought to propose an amendment that would bring gradation to the concept of consent so as to align it with other areas of law. By doing so, the lacuna currently present in the SOA 2003 regarding deception would be closed and consistency would be established.

Footnotes

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.