R v Linekar

Facts

The defendant agreed with a prostitute that he would have sexual intercourse with her for a fee. He had no intention of paying her. After intercourse he left without paying. She complained that she had been raped.

History

He was convicted of rape at trial and appealed to the Court of Appeal.

Issue

Whether consent to sexual intercourse induced by a fraudulent promise to pay was vitiated, so that intercourse was without consent for the purposes of rape under the Sexual Offences Act 1956.

Held

Appeal allowed and the conviction for rape quashed. Her consent to intercourse was not negatived by his deception about whether he would pay.

Ratio

• A fraud which induces consent to sexual intercourse vitiates that consent for the purposes of rape only if it relates to the nature of the act or the identity of the man. A false promise to pay for sex does not relate to either, so intercourse in these circumstances is not without consent.

Key reasoning

• The common law, as stated in the nineteenth century authorities, limited fraud as a negation of consent in rape to the nature of the act and the identity of the man in cases of impersonation.
• Parliament had dealt with procuring intercourse by false pretences as a separate and lesser offence in the Sexual Offences Act 1956, which shows that it did not intend deception generally to turn consensual intercourse into rape.
• The woman had consented to the act of intercourse with this man, and the lie concerned a collateral matter, namely payment.

Where it fits in the module

In the Sexual Offences topic the case is a starting point for the debate on deception and consent: whether a person who is tricked into sex has really consented, and which deceptions the law should treat as negating consent. After the Sexual Offences Act 2003, which defines consent as agreement by choice with freedom and capacity to make the choice, the case should be read with the later decisions in Jheeta and McNally in the Court of Appeal and Assange in the Divisional Court on conditional and deceived consent.

Criticisms

• The decision treats consent as attached only to the physical act, which ignores that the complainant agreed to sex for payment and did not agree to sex without it, so the lie about the exchange removes the real basis of her choice.
• The line between deceptions about the nature of the act and about collateral matters is thin and unprincipled, and the common law rule does not match the modern understanding of sexual autonomy.
• The reliance on the existence of a separate lesser offence of false pretences to restrict rape is unconvincing, since it assumes that Parliament had examined the question of consent in rape when it enacted that offence.