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

Murray, Kyle L.; Beattie, Tara

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Authors

Kyle L. Murray

Tara Beattie



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 Mar 29, 2024
Journal Criminal Law Review
Print ISSN 0011-135X
Publisher Sweet and Maxwell
Peer Reviewed Peer Reviewed
Volume 7
Pages 556-574
Publisher URL https://www.sweetandmaxwell.co.uk/Product/Criminal-Law/Criminal-Law-Review/Journal/30791441

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Copyright Statement
This is a pre-copyedited, author-produced version of an article accepted for publication in Criminal Law Review following peer review. The definitive published version: Murray, Kyle L. & Beattie, Tara (2021). Conditional consent and sexual offences: revisiting the Sexual Offences Act 2003 after Lawrance. Criminal Law Review 7: 556-574, is available online on Westlaw UK or from Thomson Reuters DocDel service.




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