Rape, Consent and a Lie about Fertility: R v Lawrance [2020] EWCA Crim 971
| DOI | 10.1177/0022018320976662 |
| Author | Beatrice Krebs |
| Published date | 01 December 2020 |
| Date | 01 December 2020 |
| Subject Matter | Case Notes |
Case Note
Rape, Consent and a Lie
about Fertility
RvLawrance[2020] EWCA Crim 971
Keywords
Consent, deception, fertility, non-disclosure, rape, vasectomy
This was an appeal against a rape conviction. The appellant had met the complainant on a dating website.
During a sexually explicit exchange of messages, he claimed to have had ‘the snip’. The complainant
gave evidence that before they had sexual intercourse during a subsequent meeting at her home, she had
sought an assurance that the appellant had indeed had a vasectomy. He assured her that he had. She made
it clear that she did not want to risk becoming pregnant. He repeated his assurance, and the complainant
proceeded twice to have sex with him without the use of contraception. The next day, the appellant sent
her a message, telling her that he was still fertile. The complainant then discovered that she was pregnant
and had a termination.
It was the prosecution’s case that the complainant’s consent to sexual intercourse was vitiated by the
appellant’s deception about having had a vasectomy and that even if he had genuinely believed that she
had consented, such a belief was unreasonable.
It was the defence case that a lie about fertility could not, as a matter of law, vitiate consent, even if
relied upon by the complainant. In order to vitiate consent a deception had to go to the nature of the
sexual act or be closely connected to the sexual act. In the present case the deception did not fit into
either category. The decisions in Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin)
(deceit as to the wearing of a condom vitiated consent) and R(F) v DPP [2014] QB 581 (deceit as to
intended withdrawal vitiated consent) could be distinguished on the basis that in those cases consent had
been given on the basis that ejaculate would be prevented from entering the complainants’ vaginas,
whereas in the present case that was not sought to b e avoided. The appellant’s deceit went to the
consequences of intercourse, rather than the performance of the act itself, and could therefore not negate
consent.
The trial judge ruled that a deception about fertility was capable of negating consent and the appellant
was found guilty. He appealed against his conviction on two counts of rape (he had been convicted of
further sexual offences, including rape, against other women but these did not form part of the present
appeal).
Held, allowing the appeal and quashing the appellant’s convictions on two counts of rape, that
the appellant’s deception about his fertility was not capable in law of negating consent (at [43]). The
Court accepted that the jury must have concluded that the complainant had relied on the appellant’s
deception and that she would not have consented to unprotected sexual intercourse had she thought him
to be fertile. However, the ‘but for’ test was insufficient of itself to vitiate consent. There might be many
circumstances in which a complainant was deceived about a matter which was central to her choice to
have sexual intercourse [the court proceeded to give examples, including lies about marital statu s,
political or religious views, employment or wealth] (at [34]). The question was whether a lie as to
The Journal of Criminal Law
2020, Vol. 84(6) 622–625
ªThe Author(s) 2020
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DOI: 10.1177/0022018320976662
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