By David S. Prescott, LICSW, & Kieran McCartan, Ph.D.
Please note that this blog is also published on the SAJRT Blog website too – Kieran.
While working in a large residential treatment center for youth about twenty years ago, the first author (David) ended up with a note passed between two students. In it, a 16-year-old male client claimed to a female client from a different campus that he had a condo near the casinos in Atlantic City, New Jersey. It was bittersweet at the time, reflecting the age-old attempts by young men to impress young women while displaying epic ineptitude. It would have been obvious to nearly anyone that he possessed few social skills, much less a condo that they could escape to. The author found reason for hope that the young man would someday be able to have the relationships he desired, while at the same time being concerned about the young man’s methods in the short term.
From here, however, things too often take a darker turn. Seemingly consensual activities in the context of getting a job or advancing within one. If the job or advancement doesn’t come through, how best to understand the results? Fraud, sexual assault? There is an entire style of pornography devoted to tricking women into being filmed having sex through the false promise that they are auditioning to become porn stars. What is the source of gratification beyond the sex in these situations? The gullibility of the woman being filmed? And of course, much of the #metoo movement resulted from the experience of being pressured into sex if one wanted to continue working in one’s chosen field.
A recent case in the UK adds to these important but thorny questions. Jason Lawrance was found guilty last summer of sexually assaulting a woman twice. Although the sex had at first been consensual, he had lied about having had a vasectomy. He subsequently texted her to say that he was “still fertile. Sorry.” She took emergency contraception and eventually had an abortion. Fraud? Sexual assault? Intrinsic gratification from the deception itself (sometimes known as “duping delight”)? The issues abound in a situation with a truly tragic ending.
The more immediate concern, however, is that Lawrance’s convictions were overturned. The Court of Appeals reportedly said that the “convictions were unsafe.” Meanwhile, Lawrance is currently serving time for other sexual assault convictions and remains in prison. Ultimately, the court said that “Lawrance’s “lie about his fertility was not capable in law of negating consent”.
This view of deceit is interesting and worrying because it drills to the very heart of the problem: the absence of “informed consent” is at the very core of sexual assault. However, of concern to the court was the nature of the actions that remove consent. The challenge here is a truly grey area. At what point does deliberate trickery become the coercion that is central to sexual assault? After all, gaining children’s compliance through trickery has long been recognized as a hallmark of child molestation.
The issue is almost not whether it is true that Lawrence had a vasectomy (as with David’s student and his fictitious condo), but rather that they said that they did and were believed. The woman in question made an informed decision based on false data that was created for the purpose to deceive. Further, by all appearances, Lawrance made an informed decision to create an illusion of informed consent.
It’s possible to discuss this situation from a number of perspectives, from the possible sexual and nonsexual motivations of an egregious behavior to questions about what specific crime categories this might fall under. What is clear, however, is that the idea of what constitutes consent is again back under discussion. In our opinion, this decision undermines decades of advancement in determining the importance of actual, meaningful consent. In some ways, it is similar to revenge porn posted in a technically legal fashion because the filmed partner simply consented and did not draw up a proper legal contract to define the parameters of the consent and the conditions under which the video could be distributed and viewed.
What is clear is that should the current decision be accepted as a legal precedent; it will take considerable public dialog to create new laws that are both sensible and meaningful. The overarching problem, in this case, is that it will likely dissuade victims of sexual offences from going forward because they feel that they won’t be believed, especially in situations where “consent” is difficult to establish or refute.