26th September 2019

Many of you will have seen a story in the news last week about the conviction of Mr Stephen Lawrence at Leicester Crown Court for a number of rapes and sexual assaults. Mr Lawrence’s lawyers have requested leave to appeal on one specific conviction. This conviction relates to a sexual relationship Mr Lawrence undertook with an unnamed woman.

The couple had met on a dating site and proceeded to have a consensual sexual relationship. However, the issue arises from what Mr Lawrence said on the dating site. He had made it clear to the woman that he had undergone a vasectomy procedure. This came up when the couple discussed contraception and the woman checked this with him again in person when she met up with Mr Lawrence. However, after the couple had had sex Mr Lawrence left in the middle of the night texting the woman ‘I have a confession, I’m still fertile, sorry’.

Why did the Court decide this was rape, after all the woman had consented to have sex with Mr Lawrence that night? The issue arises in the validity of her consent. The Sexual Offences Act 2003, at Section 74, requires that a person ‘agree by choice, and has the freedom and capacity to make that choice’. The Prosecution argued that by lying about his fertility Mr Lawrence had deprived the victim of making a full and free choice and that she may not have consented if she had been aware of the full facts.

In English and Welsh law this is known as ‘conditional consent’ in sexual encounters. In Assange in 2011 the High Court introduced the concept in that they determined that Mr Assange may have been guilty of rape as the complainant had only consented to sex on the basis that he use a condom which he did not. The Courts have since made frequent references to ‘conditional consent’ including in the 2013 case of McNally where the Defendant was a girl who had befriended and then entered sexual relationships with two other girls both of whom at the time actually believed her to be a boy. In McNally it was decided the victims’ right to choose whether or not to enter a sexual relationship with a girl had been removed by the Defendant’s deception.

So does any lie to a partner prior to sex negate consent? No, in McNally the Court foresaw this issue and explained that not all deception would negate consent, they specifically made reference to lies about money or earnings but they didn’t go further than that. Which means the question remains how big a lie does it have to be? Mr Lawrence’s case appears to fall within the current case law but in an ever changing world we are left to wonder how far the Court will eventually take the concept of conditional consent.

Blog by Alastair Naismith, Criminal Defence Solicitor