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, and the findings of the jury, it is, I think, established that Judith Gorman, wife of one J. Gorman, who was absent (having gone out to fish), lay down upon a bed in her sleeping room in the evening, when it was dark; that the prisoner came into the room, personating her husband, lay down upon her and had connexion with her; that she did not at first resist, believing the man to be her husband, but that, on discovering that he was not her husband, which was after the commencement but before the termination of the proceeding, her consent or acquiescence terminated, and she ran downstairs. It appeared, I think, manifestly that the prisoner knew the woman was deceived, as she said to the prisoner in his presence and hearing, when he came into the room, ‘You are soon home tonight,’ to which he made no reply. At the time my own opinion, founded upon well known cases in England, was that the prisoner was not guilty of rape, but at the request of the counsel for the Crown I left certain questions to the jury, and, upon their findings, directed them to find a verdict of guilty, reserving the case for consideration of the Court, which is now called upon to decide the question which arises.’
Held: It was the absence of consent, and not the fraud, which made the offence.
Palles CB said: ‘I think it follows that . . an act done under bona fide belief that it is another act different in its essence is not in law the act of the party. That is the present case a case which it is hardly necessary to point out is not that of consent in fact sought to be avoided for fraud, but one in which that which took place never amounted to consent. The person by whom the act was to be performed was part of its essence. The consent of the intellect, the only consent known to the law, was the act of the husband only, and of this the prisoner was aware.’
May CJ said: ‘Now, rape being defined to be sexual connexion with a woman without her consent, or without, and therefore against, her will, it is essential to consider what is meant and intended by consent. Does it mean an intelligent, positive concurrence of the will of the woman, or is the negative absence of dissent sufficient? In these surgical cases it is held that the submission to an act believed to be a surgical operation does not constitute consent to a sexual connexion, being of a wholly different character. This is no consensus quoad hoc. In the case of personation there is no consensus quoad hanc personam.’
May CJ and Palles CB
(1884) 14 Law Reports (Ireland), Common Law, 468,  14 LR Ir 468
England and Wales
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 – 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 . .
Cited – Lawrance, Regina v CACD 23-Jul-2020
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 . .
These lists may be incomplete.
Updated: 13 July 2021; Ref: scu.554812