Should Mistaken Consent Still Be Consent? In Defence of an Incremental Understanding of Consent in the Sexual Offences Act 2003

The article considers the recent case of R v Lawrance [2020] EWCA Crim 971 and the way in which the courts are deciding to interpret the concept of freedom under s. 74 of the Sexual Offences Act 2003. It is argued that the case shines a light upon the lacuna present in the Act with regards to deception and consent, identified by academics when the Act was promulgated. It is suggested that the definition of consent lacks clarity as courts have struggled in its application. The resulting 'so closely connected' test developed in the cases of R (on the application of Monica) v DPP [2018] EWHC 3508 (Admin); [2019] QB 1019 and R v Lawrance [2020] EWCA Crim 971 is not an adequate solution to the problem of deception and consent and potentially muddies the waters further. The article offers a potential solution that might better uphold the ambition of protecting sexual autonomy while adhering to the concept of fair-labelling.