Deception by the woman as to contraception

26 April 2021

Not reviewed after the date of publication

Question: 

Does a woman commit a sexual offence if she informs a sexual partner/person that they are on contraception however she is lying whether intending to fall pregnant or not?

The male would not consent to intercourse if he was aware that she was not on contraceptives. She is aware he would not consent and knows he wouldn't have intercourse with her if told beforehand.

Answer:

Section 76 of the Sexual Offences Act 2003 creates 'conclusive presumptions' (which means they cannot be rebutted by the defendant) about lack of consent and the absence of belief in consent in situations where the defendant deceived the complainant into sexual activity. It states that it can be conclusively presumed that a complainant did not consent to the relevant act if the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act.

It has been held that where a suspect deceives a complainant by not using contraception, it can be conclusively presumed that the complainant did not consent IF that deception is sufficient to alter the 'nature' of the act. In the case of R (on the application of F) v DPP [2013]  EWHC 945 (Admin) it was held that a man who had known that the only basis on which a woman had consented to sexual intercourse with him was that he would wear a condom or not ejaculate within her vagina and had deliberately ignored the basis of her consent to penetration as a manifestation of his control over her. In law, that combination of circumstances fell within the statutory definition of rape.

However, in the recent case of R v Lawrance [2020] EWCA Crim 971 it was held that a lie about fertility was not sufficiently closely connected to the performance of sexual intercourse so as to be able to negate consent under section 74 of the Sexual Offences Act 2003. In that case a man had sexual intercourse twice with a female without other forms of contraception because he told her he had had a vasectomy and he told her he had lied the next morning.  The court held that the lie related to the possible consequences of unprotected sex but not to the physical performance of the act itself. It was analogous to R. v B [2006] where transmission of HIV was not part of the performance of intercourse but a consequence of it, R. v B was followed in Lawrence. It made no difference whether there had been an express deception, or a failure to disclose; the issue was whether the lie was sufficiently closely connected to the performance of the sexual act. It was held that Lawrence's lie was not capable in law of negating consent, and his convictions were unsafe and had to be quashed'.

Whilst the case law surrounding consent being vitiated is more prominent in relation to the offence of rape, consent still forms a key issue for the offence of sexual assault under section 3 of the Sexual Offences Act 2003 and therefore, it would be our opinion that these considerations and the precedents created, would also extend to the section 3 offence.

There does not appear to be an example of any cases prosecuted involving a woman vitiating consent via misrepresentations that she was using the contraceptive pill, when she was not in fact doing so. However, there are discussions surrounding this within legal journals where academics have suggested that where there are misrepresentations that the contraceptive pill was being taken, a person is depriving another of making an informed choice about sexual acts taking place and therefore, this negates consent to the relevant act.

It is our view that the same view as taken in the case of Lawrence above would prevail if the matter were brought before the courts. The choice of whether to have unprotected sexual intercourse based on whether a woman is using contraception would not deprive the man of the freedom to choose whether to have the unprotected sexual intercourse, which had occurred. It is different to imposing a physical restriction on the agreement to have intercourse (i.e. a condom). We would therefore be of the opinion that it is unlikely that the facts would amount to an offence being committed.

If the woman's intention was to become pregnant, then this may be sufficient to prove that she deceived the complainant as to the nature or purpose of the relevant act. However, this would ultimately be for court to decide on all of the facts as to whether an offence and in our opinion, it seems unlikely considering the case law above.

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