Sex, Deceit and the Major Role of Consent

If you are on a night out and you lie about your profession to get someone into bed, how wrong is it?

The answer falls down to the individual you have coaxed into sleeping with you. If your actual profession would be a deal-breaker for them, then you have perverted their consent. Without full consent, there should surely be no sex.

The BBC recently posted an article based on the intricacies of lies and sex and the legal implications that this may bring. In July 2019, in what the prosecution believed to be the first case of its kind, Jason Lawrence was prosecuted for rape because he lied over a vasectomy.

During his trial, an unnamed victim, known only as ‘Sally’, explained that she had only had sex with Lawrence as he had told her that he had had a vasectomy. The following day, he sent a text that simply read “I have a confession. I’m still fertile. Sorry xxx”. The woman fell pregnant and had an abortion as a result.

The prosecution relied on Section 74 of the Sexual Offences Act 2003 regarding consent, this reads:

“…a person consents if he agrees by choice, and has the freedom and capacity to make that choice”

It was argued that, by lying about the vasectomy, Lawrence had removed the freedom for ‘Sally’ to make an informed choice about whether or not she gave her consent.

Removal of a condom during sex

‘Stealthing’ may not be a word that is commonplace but, in 2017, Alexandra Brodsky posted a study in Columbia Journal of Gender and Law all about it, prompting a huge online discussion on social media. ‘Stealthing’ is the act of non-consensual condom removal during sexual intercourse – essentially, this means intentionally damaging or taking off the condom without informing the other individual. This can of course create a number of problems including an exposure to the risk of pregnancy and sexually transmitted diseases and, emotionally, can entirely rob a victim of their sexual integrity.

The avoidance of condoms is a common practice. In research done by Davis et al. in, it was found that, of a sample of 313 moderate-drinking male participants, a whopping 80% of them reported employing at least one condom use resistance tactic since adolescence.

The removal of a condom during sex was a matter to be assessed in the extradition case of Wikileaks founder Julian Assange. In R v Assange, it was found that if an individual who consented to sex with the protection of a condom had made it implicit that they would only have sex on this condition, then they were not, in fact, giving consent to sexual intercourse without the use of condom. The judges would then go on to state that, under the law of England and Wales, this would amount to an allegation of rape.

This was also brought to the forefront in April 2019 when Lee Hogben, who had been having consensual sex with an escort at the time, removed the condom he was wearing. This was despite her repeated objections. It was detailed that the sex worker involved had clearly stated the Hogben’s use of a condom was a vital condition of her agreement in having the sexual intercourse. He was convicted of rape and two counts of assault by penetration following the trial.

Gender Identity Fraud

There are instances in which women have imitated men to coerce other women into bed, this has become to be known as ‘gender fraud’.

The most notable of this involved Justine McNally. The victim believed that she was having sex with a male partner when, in fact, she was having sex with a female who had intentionally deceived her. McNally was a teenager when she formed an online relationship with a girl while pretending to be a male called ‘Scott’.

As ‘Scott’, she communicated with the victim for over three years on the internet, discussing marriage, having children and growing up together. The pair would eventually escalate their relationship to phone sex, during which McNally would explain what she wanted to do with her penis.

Ultimately, McNally travelled to meet the victim and had sexual contact using a sex toy. Despite consent being apparent, and the victim intentionally having sex with McNally, she was unaware of her gender. The Court of Appeal would later determine that “deception as to gender can vitiate consent” . Initially, McNally was sentenced to three years detention before having her sentence varied to nine months suspended for two years.

More recently, Gayle Newland posed as a man to convince her friend into having sex with her. When meeting, Newland demanded the victim wore a blindfold when they met and used a prosthetic penis during sexual intercourse. This was part of their acts of “roleplay and fantasy”.

It was only when the victim ripped off her blindfold during intercourse that she saw Newland wearing a sex toy that she realised the deception that she had been involved in. It was alleged Newland would strap bandages to her chest and wore a woollen hat and swimsuit during their encounters.

Judge Roger Dutton described her as “intelligent, obsessional, highly manipulative, deceitful, scheming and thoroughly determined” before she was sentenced to eight years in prison after being found guilty of three sexual assault charges.

Deception of STIs

Sexually Transmitted Infections can present a more ambiguous approach to potential rape. There are instances in which an individual may say that they do not have an STI to a sexual partner and, importantly, have been tested to confirm this despite this being a lie. Should this, therefore, amount to a rape?

A poll found that the majority of people (62%) would lie to their partner about having an STI – 92% of which would do so as they wouldn’t want to put their partner off sex with them. 8% of them admitted that they would still have sex without a condom despite knowingly having an STI.

There was also the infamous case of Daryll Rowe, the predatory hairdresser who purposely infected sexual partners he met on a gay dating app with HIV. After finding out he had HIV in April 2015, he refused treatment and medication and went on a ‘deliberate campaign’ to pass HIV to victims he met on Grindr.

He would use tampered condoms to infect them before goading them with mocking text messages afterwards, such as “I have HIV LOL. Oops”. Rowe became the first man in the country to be found guilty of intentionally spreading HIV for which he received a life sentence. It is important to note that he was not charged with sexual offences, rather charges of grievous bodily harm.

Ignoring the request of withdrawal

So, what about ejaculation inside an individual who had not consented? – R(F) v DDP explored this. It involved a woman who claimed she had only consented to sexual intercourse on the clear understanding that her partner would withdraw before he ejaculated.

As there was evidence that the condition was deliberately ignored, the court held that the facts were capable of amount to rape by referring, once again, to Section 74 of the Sexual Offences Act 2003. The victim had been deprived of the freedom to make this choice as the crucial feature upon which her original consent was given.

‘Everyday’ lies

If we are being honest with ourselves, people lie to obtain sexual partners all the time. People lie about their age, their relationship status, their wealth, their ‘prowess’ and, as stated at the beginning of this article, their profession. No present cases revolving around this type of deception have ended up being taken to court and so there are currently no precedents set.

It is therefore extremely important that further guidance is established with regards to deceit negating consent. Common sense would dictate that, while it isn’t ethical, lying about your profession or your age as an adult in order to have sexual intercourse is unlikely to have serious problematic implications.

Purposely sabotaging a condom during sexual intercourse without the partner being privy to this knowledge is. Without the implementation of further legislation however, who creates the regulations of the more ambiguous issues?

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