Can Deceit Turn Sex into Rape?

By Admin in Latest News on

How can someone be guilty of rape when their partner has agreed to sex? This blog intends to explain consent and examine various issues that may arise that could invalidate that consent such as; lying about gender, removal of a condom during intercourse, falsely claiming a vasectomy and lying about intention to withdraw before ejaculation.

What is consent?

The Sexual Offences Act 2003 (SOA) says a person commits rape if the other person “does not consent to the penetration” or “they do not reasonably believe” that the person consents. 

Section 74 of the SOA 2003 says a person consents if he or she agrees by choice and has the freedom and capacity to make that choice.

Section 76 of the SOA 2003 sets out a number of conclusive presumptions which, if proved, create an irrebuttable presumption that the complainant did not consent and the defendant had no reasonable belief in consent. Specifically s.76(2)(a) states that a deception as to the nature or quality of the act raises a conclusive presumption against consent.

People tell all sorts of lies in order to have a sexual relationship and such lies could lead to the question as to whether consent was withdrawn or even given. There has been various cases before the courts that say where a person has told a lie, that has deprived a person from making an informed free choice which is what is expected in accordance with section 74. 

Removing a condom before or during sex

Agreeing to use a condom then surreptitiously removing if before or during sex, otherwise known as “stealthing” is not uncommon. In a survey conducted in 2019 almost 10% of men aged 21-30 out of 626 participants admitted to having engaged in stealthing at least once since the age of 14 years old. 

This particular issue was considered by the court in the infamous extradition case of Wikileaks found Julian Assange (Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin)).

The issue in Assange was whether or not consent to sexual intercourse on the basis that a condom would be used could be negated by the fact that no condom was used. 

It was found that sex without a condom would be an offence in UK law if the other partner had only agreed to sex on the condition a condom was used. 

Lying about gender

Otherwise referred to as “gender fraud”, lying about one’s gender has been considered by the courts much more in recent years. These cases have concerned women who have impersonated men in order to have sexual encounters with other women, such cases that are widely publicised involve women wearing prosthetic penis’ and bodysuits of male bodies to try and deceive their sexual partners into thinking that they are male. There have also been cases where trans men have not disclosed their assigned gender to female partners. 

The deceit from those convicted of so-called “gender fraud”  is said to have taken away the complainant’s right to provide fully informed consent and lead to convictions for sexual assault.

Non withdrawal before ejaculation

This is another scenario whereby a person consents to sex with certain conditions, the condition being that the male withdraws before ejaculating. This scenario has been considered by UK law in a case concerning a husband and wife, the wife did not want anymore children and agreed to have sex with her husband on the basis that he withdrew. Following penetration the husband had informed her that he would ejaculate inside her, which he did, and he would do so because she was his wife and he could do what he wanted. The Crown prosecution failed to prosecute this case initially but a thorough review of this decision took place where the main question was whether ejaculation without consent could transform an incident of consensual intercourse into rape. 

Penetration is a continuing act and so consent can be withdrawn even after penetration has begun. In withdrawing consent after the act has become it transforms an act that begins consensually into rape.

Alison Levvitt QC who reviewed this case was troubled by it’s facts, the main being that it was not clear at what point the husband should have ceased to have intercourse with his wife. Levitt’s view was that if the husband embarked upon the act knowing he would ejaculate inside his wife against her wishes, then it was arguable that he knew she did not consent. However, it was felt that as a matter of evidence it would be impossible to prove that it had not been a spontaneous decision made by him at the point of ejaculation.

The judge in this case considered both s74 and s76 of the Sexual Offences Act 2003 as mentioned above. It was found that the complainant could not rely on section 76 because there had been no deception of the nature or quality of the act and, therefore the issue of consent in this type of case came under s.74 Sexual Offences Act 2003 and similar to the case of Julian Assange, the court held that possible deception about the use of the condom or in the instant case, the promise not to ejaculate, could be held to remove any purported free agreement by the complainant under s.74, thus negating consent.

The court made it clear that this would not extend to situations where there had been premature or accidental ejaculation. However, where deception had been used or the basis on which consent was given was deliberately ignored, the conduct fell within the statutory definition of rape.

Lying about having a vasectomy 

The widely report case of Jason Lawrence a convicted serial rapist is one which considered whether having told his victim that he had had a vasectomy, and as a result she would not get pregnant, was in fact rape. Jason Lawrance's convictions concerning his deceit were thought to be the first of their kind and could have wider implications for others who deceive sexual partners.

Again, when convicting Jason Lawrence the court looked at s74 of the SOA and found that Lawrence had deprived his victim of making an informed choice and was guilty of rape because the consent had been negated by his deception. Having had various other convictions for sexual assault and rape this certainly would have not assisted Lawrence is obtaining a not guilty verdict, and it is questionable as to whether the jury would have convicted him had they not been made aware of his previous convictions.  

Lawrence is appealing the decision to convict in his case. If the conviction in this case is upheld it opens the floodgates for all types of cases to come before the courts that involves a person who has obtained consent by telling a lie. Some people may take the view that lying to someone about having had a vasectomy is a bad thing to do but not necessarily criminal and a line must be drawn as to what constitutes deceit in order to obtain sex from another.

Although legislation makes the law on rape very clear, the law on consent can become extremely complex and case law is evolving the law on rape at a fast pace, in line with social and scientific developments. It is important anyone accused of a sexual offence seeks specialist legal advice, all cases are different and must be considered uniquely against the laws and precedents set. 

Our team and what we can do for you

It is never easy to discuss personal sexual experiences with a stranger however, at PCD Solicitors we specialise in sexual offences ranging from the making and possession of indecent images, grooming and sexual communications with a child to sexual assaults and rape. 

Our team are dedicated to making our client’s feel comfortable and providing them with expert support and knowledge to allow them to make the right choices for their case. Whether this be at the police investigation stage or where a person is at the stage of court proceedings, we aim to do our very best to get the right results for our clients. 

If you, a family member or friend is accused of a sexual offence please contact one our lawyers today for a free, confidential and non judgemental chat.