R v Jason Lawrance
Court of Appeal
Citations:  EWCA Crim 971.
The defendant told the complainant that he was infertile because he had a vasectomy. On this basis, she agreed to have unprotected sex with him. She later discovered that he had lied and became pregnant. The defendant was tried and convicted of raping her. This meant that the jury found that the victim had not consented to sex, and that the defendant had no reasonable belief in consent.
The defendant appealed his conviction. He argued that the victim gave valid consent to sex despite the deception. S.74 of the Sexual Offences Act 2003 states that ‘a person consents if he agrees by choice, and has the freedom and capacity to make that choice.’ The defendant argued that a lie about fertility does not affect a person’s freedom or capacity to choose.
- Does a lie about the defendant’s fertility vitiate a person’s consent for the purposes of the sexual offences?
The Court of Appeal held in favour of the defendant and quashed the rape conviction. The defendant’s lie did not deprive the victim of their freedom or capacity to choose to have sex with him.
This Case is Authority For…
For the purposes of the sexual offences, a lie about the defendant’s fertility is insufficient to deprive the victim of their capacity or freedom to choose.
This decision is difficult to reconcile with Assange v Swedish Prosecution Authority  EWHC 2849. There, the High Court held that lying about whether the defendant was wearing a condom could vitiate consent. In both cases, the women wanted to avoid pregnancy and the lie directly related to their desire. It is similarly difficult to reconcile this case with R v McNally  EWCA Crim 1051, which held that a lie about gender identity could vitiate consent.
The Court of Appeal in Lawrance argued that the distinction lay in the fact that the complainant here agreed to sex without any ‘physical restrictions’ and without deception as to the ‘physical performance’ of the sex act. The main issue, therefore, was whether the lie ‘was sufficiently closely connected to the performance of the sexual act, rather than the broad circumstances surrounding it.’
The Court of Appeal also disapproved of comments made by the court in McNally that a distinction should be drawn between passively withholding relevant information (eg failing to mention HIV status) and actively lying (eg stating that one of HIV negative). The Court of Appeal thought that deception was a spectrum: there is no clear line between active and passive deceit.