Consequences should not matter for consent
The ruling in the Jason Lawrence case reflects the spirit and letter of the law, and will stop future claims taking unexpected twists
The ruling of the Court of Appeal in the case of Jason Lawrence is eminently sensible.
The prosecution case, taken at its highest, was that Lawrence had sex with a willing partner but that her ostensible consent was vitiated because he had falsely told her that he was infertile.
The view of the judges — who quashed his conviction — was both a correct interpretation of the existing law and a useful curb on the law of conditional consent. Had the original interpretation been upheld, it would have stirred a hornet’s nest.
Conditional consent is a relatively new development in any event. It did not exist before 2011 and was invented by judges at the Supreme Court when they were trying to extradite Julian Assange; the complaint against the Wikileaks founder being that the consent of his victim was vitiated because he had agreed to use a condom and did not do so.
Prior to that, the common law considered the meaning of “consent” during the 19th century and determined that it was invalidated in the event of impersonation of another or deceit as to the act, namely medical examinations where consent has been obtained by deceit over the need for the examination.
Since then, parliament has enacted the Sexual Offences Act 2003, which includes a definition of consent and evidential presumptions about the absence of consent. There was never any indication that they wished this to be considered further.
This judgment is not a departure from the law. The difference between the cases of Assange and Lawrence is that in the former case, there was a deception as to the nature of the act to which consent was given; while in the latter the deception was to its consequences.
Deception as to consequences of sex has been considered before and found not to amount to rape. A 2006 case in the Court of Appeal established that consent is not vitiated where the appellant had not disclosed that he had HIV and that is why the transmission of disease recklessly or intentionally is prosecuted as grievous bodily harm rather than a sexual offence.
Critics of this ruling should take care not to confuse change with progress. Were the law to have been amended by this case to negate any consent that was obtained by deceit, the effect would have had unintended consequences.
For example, it would have included those who lie about their wealth, circumstances or life successes. Neither would it have been confined to men. Women who lie about their marital status or contraceptive arrangements would have been at risk of prosecution for sexual offending.
This decision is a victory for good sense.