One of Julian Assange’s many gifts to the law was to establish in the case of Assange v. Swedish Judicial Authority that where a woman consents to sexual intercourse on condition that the man is wearing a condom, he commits the offence of rape – in English as well as Swedish law – if they then have intercourse without one. (Although whether this is actually what Mr Assange did will never be established as the Swedish authorities discontinued the prosecution last November).
In 2013, judges went a step further and decided that a man who obtained consent by promising to practise ‘coitus interruptus’ was guilty of rape if he harboured a secret intention to break his promise.
So one would have thought that if a man obtains consent by telling his partner that he has had a vasectomy, he would be committing rape if he was lying. According to the Court of Appeal, which decided just such a case last week, the law says otherwise.
The rest of us may find ourselves confused as to why lying about some forms of contraception can lead to a rape conviction while lying about others cannot.
When Alison Saunders was Director of Public Prosecution she promoted a video in which consent to sex was compared to consent to drinking a cup of tea:
You wouldn’t force or pressure someone into having a cup of tea, and you can tell when someone wants a cup of tea or not. If someone says they want a cup of tea one minute, they can change their mind the next and should not be pressured to drink the tea. If this sounds simple, then so is the issue to consent to sex.
We should not pretend that these are straightforward issues
Dame Alison’s mumsy analogy breaks down once some of the more obvious differences between tea and sexual intercourse are taken into account. For example, drinking tea cannot make you pregnant or give you a fatal disease.
Jason Lawrance, the successful appellant in the vasectomy case, was originally convicted of raping a woman he had met online in 2014. He told her that he had had ‘the snip’. That was a lie, and – as the jury found – she would not have consented to intercourse if she had known the truth. There was no conceptual difference, the trial judge thought, between consent obtained on the basis of a promise to wear a condom and consent obtained on the basis of a promise that you have had a vasectomy. He sentenced Mr Lawrance to life imprisonment, a severe sentence, although there was a good reason to be unusually severe.
Mr Lawrance argument at appeal was that despite his deception, the consent that it produced was nonetheless valid. It was the type of argument that criminal lawyers characterise as ‘not particularly attractive’; appropriately enough, as Mr Lawrance is not a particularly attractive man. At the time of his trial, he was already serving several life sentences for numerous other rapes. But attractive or not, his argument was, in the view of the Court of Appeal, compelling. Consent is partially defined in the Sexual Offences Act 2003:
… a person consents if he agrees by choice, and has the freedom and capacity to make that choice.
This woman, argued Mr Lawrance, made her choice and had the freedom and capacity to do so. Even if he had lied, lots of people lie to get other people into bed and it does not usually make them rapists. A man – or indeed a woman – might pretend to be single; he might pretend to have a good job (claiming to have been in the SAS is a surprisingly common lie), or a penniless conman might pretend to be a millionaire. None of those lies turns the seducer into a rapist.
The Lord Chief Justice, Mrs Justice Cutts and Mrs Justice Tipples allowed his appeal because:
Unlike the woman in Assange, or in [the coitus interruptus case], the complainant agreed to sexual intercourse with the appellant without imposing any physical restrictions.
In vain the prosecution pointed to the Sexual Offences Act, which creates a ‘conclusive presumption’ of non-consent if a person has been deceived ‘as to the nature or purpose’ of the sexual act. The court was unconvinced. Mr Lawrance’s deception did not go to the nature or the purpose of intercourse, they said. She was deceived:
About the nature or quality of the ejaculate and therefore of the risks and possible consequences of unprotected intercourse. The deception was one which related not to the physical performance of the sexual act but to risks or consequences associated with it.
Some might consider that an imperceptibly subtle distinction.
We should not pretend, as Dame Alison tried to, that these are straightforward issues. There is an undeniable difficulty in drawing a principled distinction between deceptions that are merely wrong, or even seriously immoral, and those which should be criminal. It is not every dishonest blandishment that should turn a seducer or a seductress into a sex offender.
On the other hand, a law that characterises a man who removes his condom as a rapist, or the woman who breathily insists it’s ‘OK because I’m on the pill’ as a sex offender, whilst shrugging its shoulders at the man who tells a calculated – and in practice undetectable – lie about his non-existent vasectomy lacks coherence.
It may be that the prosecution will try to appeal the case to the Supreme Court. It will make very little difference to Mr Lawrance who is remaining behind bars for the foreseeable future whatever happens. On the other hand, for those who would like to know exactly where the boundary between immorality and criminality lies some clarification of this sexual muddle is urgently required.
