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Conditional Consent and Sexual Offences: Revisiting the Sexual Offences Act 2003 after Lawrance

Murray, K. L. ORCID: 0000-0002-8635-6483 and Beattie, T. (2021). Conditional Consent and Sexual Offences: Revisiting the Sexual Offences Act 2003 after Lawrance. Criminal Law Review(7),

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.

Publication Type: Article
Additional Information: 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, K. L. and Beattie, T. (2021). Conditional Consent and Sexual Offences: Revisiting the Sexual Offences Act 2003 after Lawrance. Criminal Law Review (7), is available online on Westlaw UK.
Subjects: K Law
Departments: The City Law School > Academic Programmes
Date available in CRO: 11 Aug 2021 08:27
Date deposited: 11 August 2021
Date of acceptance: 19 April 2021
Date of first online publication: 1 June 2021
URI: https://openaccess.city.ac.uk/id/eprint/26578
[img] Text - Accepted Version
This document is not freely accessible until 1 June 2022 due to copyright restrictions.
Available under License Creative Commons Attribution Non-commercial.

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