Should Mistaken Consent Still Be Consent? In Defence of an Incremental Understanding of Consent in the Sexual Offences Act 2003
| Author | Isabella Glendinning |
| Published date | 01 June 2021 |
| Date | 01 June 2021 |
| DOI | http://doi.org/10.1177/0022018321998239 |
Comment
Should Mistaken Consent
Still Be Consent? In Defence
of an Incremental
Understanding of Consent in
the Sexual Offences Act 2003
Isabella Glendinning
City, University of London, UK
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
Corresponding author:
Isabella Glendinning, City Law School, Gray’s Inn, 4 Gray’s Inn Place, Warwick Ct, London WC1R 5DX, UK.
E-mail: Isabella.Glendinning@city.ac.uk
1. Lawrance [2020] EWCA Crim 971.
The Journal of Criminal Law
2021, Vol. 85(3) 223–231
ªThe Author(s) 2021
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/0022018321998239
journals.sagepub.com/home/clj
To continue reading
Request your trial