How should English law deal with deceptive sex?

Abstract

In R v Lawrance, the appellant had induced the complainant to participate in sexual intercourse with him by falsely assuring her that he had had a vasectomy. The England and Wales Court of Appeal (‘EWCA’) set aside his conviction for rape. Their Lordships held that, because the appellant's deception ‘related not to the physical performance of the sexual act but to risks or consequences associated with it’, the complainant had ‘agree[d] … by choice’ within the meaning of s 74 of the Sexual Offences Act 2003 c 42 (‘SOA’). I contend here that, contrary to what certain commentators have argued, the EWCA's decision was correct as a matter of statutory construction. That said, it demonstrates an urgent need for law reform. I then assess some of the many recent suggestions about how the English law relating to deceptive sex might be reformed. I conclude that English law should provide that, generally, the person who uses deception to induce sexual ‘consent’ is guilty of a non-consensual sexual offence. That said, in certain circumstances, sex by deception should not be criminal at all.