Can Deceit Turn Sex into Rape?

What is consent?

Sexually touching another person without their consent is considered sexual assault – and engaging in penetrative sexual activity with another person without their consent would be considered rape.

The Sexual Offences Act 2003 (SOA) states that a person commits the criminal offence of rape if the other person ‘does not consent to the penetration’ or they ‘do not reasonably believe’ that the other person consents to the sexual activity. 

According to Section 74 of the SOA (2003), a person consents if they agree to the particular sexual activity by choice, and they have the freedom and capacity to make that choice.

Section 76 of the SOA (2003) further sets out a number of conclusive presumptions, which – if proven – create an irrebuttable presumption that the complainant did not consent and the defendant had no reasonable belief in their consent.

Specifically, Section 76(2)(a) states that a deception as to the nature or quality of the act raises a conclusive presumption against consent.

People may tell all kinds of lies in order to have a sexual relationship – for example, being deceptive about their age, marital status, or income level. Some lies are more serious, and could lead to the question of whether consent was truly given or withdrawn.

Various cases have ended up before the courts examining incidents where a person has told a lie that has then deprived a person from making an informed free choice, which is what is expected in accordance with Section 74. 

‘Rape by deception’ is therefore a serious concern, which can arise if a complainant was deceived into participating in a sexual act with the perpetrator that they would not otherwise have consented to if they had not been deceived.

Removing a condom before or during sex

Agreeing to use a condom, then surreptitiously removing it before or during sex – otherwise known as ‘stealthing’ – is not uncommon. In a study 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, with an average of more than 3 times. 

This particular issue was considered by the court in the infamous extradition case of Wikileaks founder Julian Assange (Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin)). The issue in Assange’s case was whether 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 under UK law if the person’s partner had only agreed to sex on the condition that a condom was used. Therefore, ‘stealthing’ law would classify this as rape in England and Wales.

So, while some people might not think that removing a condom without the other person knowing counts as rape, doing so when the person only consented to sex with a condom nullifies their consent and makes the act a crime.

Lying about gender

Lying about one’s gender – otherwise referred to as ‘gender fraud’ – has been considered by the courts more frequently in recent years.

Several cases have involved women impersonating men in order to engage in sexual encounters with other women, with widely publicised cases involving women wearing prosthetic penises and ‘male’ bodysuits to try to deceive their sexual partners into thinking that they are males. There have also been cases involving trans men not disclosing their assigned gender at birth to female partners. 

The deceptive behaviour of those convicted of so-called ‘gender fraud’ is believed to impair the complainant’s ability to provide fully informed consent, leading to convictions for sexual assault.*

However, the law does require sensitivity towards transgender people in such cases, as the actions of a person who genuinely lives as a different gender to the one they were assigned at birth should not be considered deceitful about their gender identity.

*The law defines rape as non-consensual penetrative sexual activity with a penis; as such, non-consensual penetrative sexual activity using prosthetics or other objects is legally treated as sexual assault and not rape.

Non-withdrawal before ejaculation

This is another scenario whereby a person consents to sex under certain conditions, the condition being that the person withdraws before ejaculating.

This scenario has been considered by UK law in a case concerning a husband and wife, in which the wife did not want any more children and agreed to have sex with her husband on the basis that he withdrew before ejaculating. Following penetration, the husband 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 Service (CPS) initially failed to prosecute this case, but a thorough review of this decision took place, where the main question was whether ejaculation without consent could transform an incident of previously consensual intercourse into rape by deception. 

Penetration is a continuous act, so consent can be withdrawn even after penetration has begun. Withdrawal of consent after the act has started can therefore transform an act that began consensually into rape.

Alison Levitt QC, who reviewed this case, was troubled by its facts – the main concern being that it was not clear at which 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, 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 Section 74 and Section 76 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 regarding the nature or quality of the act; therefore, the issue of consent in this type of case falls under Section 74.

The court determined that the defendant reneging on the agreement not to ejaculate could be seen to remove any purported free agreement by the complainant, thus negating their consent – but it was also made clear that this would not extend to situations where there had been premature or accidental ejaculation.

However, where deception is used, or the basis on which consent was given is deliberately ignored, such conduct can fall within the statutory definition of rape.

Lying about having a vasectomy 

In the widely reported case of convicted serial rapist Jason Lawrance, the court considered whether Lawrance telling the complainant he had undergone a vasectomy so she would not get pregnant if they had sex without a condom – when he had not – was rape.

Jason Lawrance's convictions concerning his deceit about having a vasectomy were thought to be the first of their kind in the UK, so the outcome of his case could have wider implications for others who deceive sexual partners in similar ways.

Again, when convicting Jason Lawrance, the court looked at Section 74 of the SOA (2003) and found that Lawrance had deprived his victim of making an informed choice – and was therefore guilty of rape, because the consent had been negated by his deception.

Having various other convictions for sexual assault and rape certainly would not have assisted Lawrance in obtaining a ‘not guilty’ verdict, so it is also questionable as to whether the jury would have convicted him of rape in this case had they not been made aware of his previous convictions.  

However, Lawrance has since appealed the decision. The appeal court judges quashed the conviction on the grounds that the complainant was not actually deprived of the freedom to consent under Section 74 – as the deception related to the consequences of the sexual intercourse, and not the physical performance of the act itself.

While lying about having a vasectomy is a bad thing to do and can have serious consequences, such as the complainant in Lawrance’s case falling pregnant and having to undergo an abortion, the appeal court decided it is not necessarily a criminal offence under the SOA (2003).

Legal advice on ‘rape by deception’

UK legislation makes the law on rape very clear, but the law on consent and what constitutes deceit in order to obtain sex from another person can become extremely complex.

Case law is guiding the evolution of rape legislation at a fast pace, in line with social and scientific developments – so it is important for anyone accused of a sexual offence to seek specialist legal advice, as all cases are different and must be considered uniquely against the laws and precedents. 

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

Our team is dedicated to ensuring that our clients feel comfortable, providing them with the expert support and knowledge they need to allow them to make the right choices for their case. Whether at the police investigation stage or at the stage of court proceedings, we aim to do our very best to get the right results for our clients. 

If you – or a family member or friend – is accused of a sexual offence, such as rape by deception, please contact one of our lawyers today for a free, confidential, and non-judgemental discussion about your legal situation.

Call us on 0151 705 8488, or fill out our online enquiry form and a solicitor from our team will be in touch as soon as possible.