22 March 2021
Not reviewed after the date of publication
Does deception concerning the presence of other contraception (i.e. other than condom), count as violating the condition of consent?
We are basing our answer on the presumption that the deception referred to is on behalf of the male towards the female.
Section 74 of the Sexual Offences Act 2003 defines "consent" for the purposes of sections 1-79 of that Act. It states that a person consents if he agrees by choice and has the freedom and capacity to make that choice.
The requirement of freedom of agreement, is intended to emphasise that the absence of the complainant's protest, resistance or injury does not necessarily signify consent. It is left undefined as to what 'freedom' means so it must be a matter of fact in any case whether pressures or threats rule out an agreement. The section also refers to a person's capacity to make a choice. A person might not have sufficient capacity because of his age or because of a mental disorder. But it is again undefined what degree of capacity is required - capacity could mean the ability to make the choice on the information available.
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:
'76(1) If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed -
(a) that the complainant did not consent to the relevant act, and
(b) that the defendant did not believe that the complainant consented to the relevant act.
76(2) The circumstances are that -
(a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;
(b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.'
To deceive the complainant by not using contraception would in our opinion lead to it being conclusively presumed that the complainant did not consent. In a similar way, if A has intercourse with B, knowing that he is suffering from gonorrhea (or is HIV+) and that B did not know this, it is questionable whether this gives rise to a conclusive presumption of non-consent as such a deception may be sufficient to alter the "nature" of the act.
This view is supported by the case of R (on the application of F) v DPP 2013 which 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.
If the circumstances relate to the man dishonestly saying that he had had a vasectomy then the case of R v Lawrence 2020 is of significance. In this 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 found 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. It related to the possible consequences of unprotected sex but not to the physical performance of the act itself.'
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