Consent not removed by Lie as to Vasectomy
The defendant appealed from his conviction of rape. He had represented to his victim that he had had a vasectomy to secure consent which the court found had been vitiated.
Held: The appeal was allowed. Could a lie about fertility negate ostensible consent? The ‘but for’ test was not itself enough to remove consent. The question was whether the lie used to obtain the consent was so closely connected to the nature of sexual intercourse, rather than the broad circumstances surrounding it, that it was capable of negating consent. The lie operated not as to any element of the acts of sex, but rather only to the risks which would be associated. The victim had not been deprived, by the defendant’s lie of the freedom to choose whether to have the sexual intercourse which occurred.
Section 76(2) of the 2003 Act puts on a statutory footing the two well-established common law bases upon which deceit or fraud will vitiate consent, but Parliament did not take the opportunity to go further. The facts of the instant appeal do not fall within either of the categories identified in section 76(2).
The Lord Burnett of Maldon CJ said: ‘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. ‘
Lord Burnett of Maldon CJ, Cutts, Tipples JJ
[2020] EWCA Crim 971, [2020] WLR(D) 440
Bailii, WLRD
Sexual Offences Act 2003 74
England and Wales
Citing:
Cited – Regina v Clarence CCCR 20-Nov-1888
The defendant knew that he had gonorrhea. He had intercourse with his wife, and infected her. She would not have consented had she known. He appealed his convictions for assault and causing grievous bodily harm.
Held: ‘The question in this . .
Cited – Regina v Dee 1884
Court of the Crown Cases Reserved of Ireland – May CJ (who had also been the trial judge), set out the facts: ‘There is not, I think, any doubt or dispute as to the facts and circumstances of the case. Upon the report of the Judge, who was myself, . .
Cited – Regina v Flattery 1877
The victim of the rape alleged that she had agreed to a surgical procedure which she hoped would cure her fits.
Held: Denman J said: ‘There is one case where a woman does not consent to the act of connection and yet the man may not be guilty . .
Cited – Elbekkay, Regina v CACD 12-Sep-1994
The defendant appealed against his conviction for rape. The victim had mistaken him man for her ‘boyfriend’
Held: it was rape for a man to have intercourse with a woman by impersonating her boyfriend with whom she had been living for 18 . .
Cited – Regina v Linekar CACD 21-Oct-1994
L appealed against his conviction for rape. His victim was a woman working as a prostitute. He said that he had simply made off afterwards without payment. He was convicted on the basis that he had procured the act by a false pretence by him that he . .
Cited – EB, Regina v CACD 16-Oct-2006
Appeal from conviction of rape. The appellant had not disclosed that he was HIV+ (although he did not represent that he did not have HIV).
Held: The appeal succeeded. Consent was not vitiated. . .
Cited – Assange v Swedish Prosecution Authority Admn 2-Nov-2011
The defendant argued that he should not be extradited under a European Arest warrant to Sweden to face allegations of serious sexual assaults. He argued that the prosecutor requesting the extradition was not a judicial authority, that some offences . .
Cited – F, Regina (on The Application of) v The Director of Public Prosecutions and Another Admn 24-Apr-2013
Application for judicial review of the refusal of the Director of Public Prosecutions to initiate a prosecution for rape and/or sexual assault of the claimant by her former partner. The claimant said that she had initially consented to sex with her . .
Cited – McNally v Regina CACD 27-Jun-2013
A teenage woman impersonated a teenage man and secured the consent of another young woman on that basis to engage in digital penetrative activity.
Held: A victim’s consent to a sexual penetration might be destroyed by a defendant’s deception . .
Cited – Monica, Regina (on The Application of) v Director of Public Prosecutions Admn 14-Dec-2018
Deception as to identity did not undermine consent
The claimant had been an environmental campaigner. She had had a sexual relationship with a man who was unknown to her an undercover police officer. She now challenged the decision not to prosecute him for rape.
Held: Her claim failed. Case . .
Lists of cited by and citing cases may be incomplete.
Crime
Updated: 01 November 2021; Ref: scu.652829