Conditional consent and sexual offences: revisiting the Sexual Offences Act 2003 after Lawrance

Murray, Kyle L.; Beattie, Tara

Abstract

Critically examines the law relating to sexual consent in cases of deception/mistake, and the developing judicial approach to s74 Sexual Offences Act (SOA) 2003. Reflects on the significance of the most recent Court of Appeal judgment in Lawrance as authority for a restrictive approach to which unfulfilled premises can vitiate a complainant’s consent. Contends that this marks a legal wrong turn. The Court of Appeal’s approval and application of the CPS’s ‘closely connected’ test is based on dubious foundations: it is the result of a chain of misinterpretations of previous case law, and, most troublingly, of the effect of s74. On this basis, suggests that Lawrance ought to be reconsidered. Sets out an argument as to the doctrinally-correct interpretation of the post-2003 law – an ‘expansive’ approach to choice and sexual consent. This approach leaves open the factors on which an individual can base their sexual consent in law. Argues that this reflects the enacted and underlying intention of Parliament in the SOA, and until Lawrance, the relevant case law. This is supported via an original analysis of s74, its place in the SOA, and key values underlying the reform process – sexual autonomy and choice. Considers the consequences of these arguments for the future direction of the law.

Citation

Murray, K. L., & Beattie, T. (2021). Conditional consent and sexual offences: revisiting the Sexual Offences Act 2003 after Lawrance. Criminal law review, 7, 556-574

• Journal Article Type: Article
• Acceptance Date: Apr 19, 2021
• Online Publication Date: Jun 1, 2021
• Publication Date: Jul 1, 2021
• Deposit Date: Jun 7, 2021
• Publicly Available Date: Jun 8, 2021
• Journal: Criminal Law Review
• Print ISSN: 0011-135X
• Electronic ISSN: 2754-1665
• Publisher: Sweet and Maxwell
• Peer Reviewed: Peer Reviewed
• Volume: 7
• Pages: 556-574
• Public URL: https://durham-repository.worktribe.com/output/1274295
• Publisher URL: https://www.sweetandmaxwell.co.uk/Product/Criminal-Law/Criminal-Law-Review/Journal/30791441