Lawrance, R. v

For the purposes of Sexual Offences Act 2003, reliance on a deception does not by itself negate consent. A deception may negate consent only where it is sufficiently closely connected with the nature, purpose or performance of the sexual act, rather than with the broad circumstances surrounding it.

A lie about fertility concerns the risks and consequences of unprotected intercourse, including pregnancy. It does not concern the physical performance of intercourse where the complainant agreed to penetration and ejaculation without a physical restriction. Such a lie does not deprive the complainant of freedom to choose, even if it was express and decisive to the complainant’s choice. The statutory definition of consent, rather than common-law expansion, governs novel cases of deception.

The appellant was convicted at Nottingham Crown Court of two counts of rape after the jury accepted that he falsely said he had undergone a vasectomy. The complainant agreed to unprotected intercourse because she believed there was no risk of pregnancy. The appellant later admitted that he remained fertile. He received life sentences for the rape counts, together with concurrent sentences for other sexual offences.

Before trial, the judge refused to dismiss the two counts and held that the alleged deception was capable of negating consent. The appellant appealed, contending that a lie about fertility could not in law vitiate consent and that the jury had been misdirected. The central issue was whether that lie was sufficiently closely connected to sexual intercourse to negate consent under section 74.

1. Appeal allowed. The convictions on counts 8 and 9 were unsafe and were quashed. It was unnecessary to decide the complaint about the summing-up.

2. Consent is defined by section 74 of the Sexual Offences Act 2003. The statutory scheme includes evidential and conclusive presumptions in sections 75 and 76. The alleged facts did not fall within either conclusive presumption in section 76. Novel cases of deception must therefore be assessed by asking whether the complainant agreed by choice and had freedom and capacity to make that choice.

3. Following the approach explained in R (Monica) v Director of Public Prosecutions [2018] EWHC 3508 (Admin), a causal or “but for” connection between a lie and the decision to have sex is insufficient. The deception must be sufficiently closely connected with the nature, purpose or performance of sexual intercourse, rather than the broad circumstances surrounding it.

4. A lie about fertility concerns the nature or quality of ejaculate and the risk or consequence of pregnancy. It does not concern the physical performance of intercourse. Unlike deception about wearing a condom or a promise to withdraw before ejaculation, the complainant agreed to penetration and ejaculation without any physical restriction. The lie therefore did not deprive her of freedom to choose whether to have the intercourse which occurred.

5. The distinction did not depend on whether the deception was express rather than a failure to disclose. The reasoning in R v B [2006] EWCA Crim 2945, concerning the consequence of infection through intercourse, supported the conclusion. Questions about extending criminal liability for sexual deception are matters for public and social policy, not judicial expansion of the statutory definition.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the convictions on counts 8 and 9: [2020] EWCA Crim 971.
• Nottingham Crown Court: On 31 July 2019, the jury convicted the appellant of the two impugned rape counts and other sexual offences. The trial judge had refused to dismiss the two rape counts before arraignment.