R v Flattery

Facts

The defendant, who held himself out as able to give medical advice, told a young woman who consulted him that she needed a surgical operation. Under the pretence of performing that operation he had sexual intercourse with her. She submitted believing a medical procedure was being carried out.

History

The defendant was convicted of rape at the assizes, and the question whether the facts amounted to rape was reserved for the Court for Crown Cases Reserved, which upheld the conviction.

Issue

Whether consent obtained by fraud as to the nature of the act (representing sexual intercourse as a surgical operation) constitutes valid consent to sexual intercourse for the offence of rape.

Held

Conviction upheld. The complainant's consent was to a surgical operation, not to sexual intercourse; therefore no valid consent existed and the offence of rape was made out.

Ratio

• Consent to sexual intercourse is vitiated where the complainant is deceived as to the nature of the act itself, as distinct from being deceived as to the identity or qualities of the person performing it.

Key reasoning

• The court distinguished between fraud as to the nature of the act (which vitiates consent) and fraud as to the identity or attributes of the person (which at common law did not).
• The complainant's mind accompanied the physical act only insofar as she believed it to be a surgical procedure; there was no meeting of minds on the act of sexual intercourse.

Where it fits in the module

This case sits at the start of the Oxford Criminal Law module's treatment of consent in sexual offences (Topic 4). It establishes the classic common law distinction between fraud as to the nature of the act (vitiating consent) and fraud as to identity or qualities (not vitiating consent). Later cases on the list such as Tabassum (2000), Jheeta (2007), Assange (2011), Bingham (2013), McNally (2013), Lawrance (2020), and Barton (2020) develop, refine, or statutorily override this distinction, particularly through the Sexual Offences Act 2003 sections 74-76. Flattery provides the historical baseline against which the modern statutory framework is understood.

Criticisms

• The nature/identity distinction is conceptually unstable: deceiving a complainant into believing intercourse is a medical procedure may be seen as a form of identity fraud (the defendant poses as a doctor performing a procedure).
• The rule produces arbitrary results: a woman deceived into intercourse by a man pretending to be her husband (identity fraud) historically had no remedy, while one deceived as to the act itself did.
• The decision reflects a narrow, act-centric view of sexual autonomy that fails to capture the full range of deceptive practices undermining genuine consent.
• The common law distinction has been largely replaced by the Sexual Offences Act 2003, which defines consent by reference to freedom and capacity to choose and provides conclusive presumptions in section 76 where the defendant deceives the complainant as to the nature or purpose of the act or impersonates a person known to her.