"I have a confession. I'm still fertile. Sorry xxx"
This was the text message that Katy*, 42, received from Jason Lawrance.
"Are you serious?" she replied in deep distress.
"You utter bastard. Why the hell would you do that to me?"
Katy met Jason through a dating website. She’d agreed to have sex with him without using a condom because she believed he’d had a vasectomy.
The cost of Jason’s lie to Katy was manifold. She did not want to become pregnant so she took the morning after pill. It didn’t work, and she ended up having to endure the pain and emotional trauma of an abortion.
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Jason was later convicted of raping Katy because his deception about having 'the snip' invalidated the original circumstances in which Katy had agreed to have sex with him. By doing so he took away her right to choose what would happen to her body and negated her consent.
A serial rapist, he was also convicted of four counts of rape and two attacks on separate women and received a life sentence for his crimes.
Now, Jason is taking the case to the Court of Appeal in an effort to get the conviction overturned, in a ruling that could have far-reaching consequences for how the issue of consent is deliberated in courts for years to come.
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Contraceptive sabotage includes offences such as 'stealthing', during which an intimate partner removes a condom without the knowledge of the woman he is having sex with.
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This particular case refers to a type of sexual assault broadly referred to as contraceptive sabotage. It includes offences such as 'stealthing', during which an intimate partner removes a condom without the knowledge of the woman he is having sex with. Contraceptive sabotage can also involve poking holes in the end of a condom, not withdrawing on climax when it has been agreed to, lying about having had a vasectomy, and forcibly removing an intrauterine device.
Offences such as these are not defined in statutory law. Instead, cases like Katy’s are tried using an existing part of the Sexual Offences Act 2003 called Section 74.
It reads: "For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice."
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Withholding pertinent pieces of information which could inform that choice, such as the ability to get someone pregnant or not, denies that person the capacity to make a proper choice, thus negating the conditions under which consent is originally given.
This is not a new concept. The law has long been clear that consent is a non-transferable condition. You can’t save consent for the future – and you have the right to withdraw your consent at any time.
If the condition of your consent was that your partner wears a condom, for example, then you have not consented to having sex without one. Failing to honour the conditions of the consent is therefore eligible to be considered and tried as rape.
"If you agree to have sex on a presumption that you’re not going to get pregnant and told you can't get pregnant because the person’s had a vasectomy, and that’s a lie, it’s a deception and that is capable of being rape under the definition," Harriet Wistrich, a solicitor at the Centre for Women’s Justice, tells us. She is renowned for her work on cases such as the rejection of the release from prison of black cab rapist John Worboys.
Katie Russell, spokesperson for Rape Crisis England and Wales, agrees.
"Most people are capable of understanding that in all areas of our lives, we give our consent to participate in certain things, and there are conditions and parameters around that," she says.
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"However the impacts of breaking the conditions of consent are huge. The fact that [Katy] did become pregnant, took the morning after pill, which is not pleasant, it didn’t work, then she had a termination, another very invasive and traumatic experience that could have been avoided, is enough to clarify this. The impact of the lie was very great to her."
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The law has long been clear that consent is a non-transferable condition. You can't save consent for the future – and you have the right to withdraw your consent at any time.
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Anna*, 28, sympathises with this. She met a guy on Tinder for a date a few years ago and went back to his house.
"We had a conversation about contraception before we had sex and both agreed he would wear a condom," she tells Refinery29. "He put it on and we started having sex, then changed position.
"When he was behind me, he must have removed the condom so when we changed position again I noticed and stopped immediately.
"When I said something, he said, 'Well, you didn't seem to care – it seemed like you were enjoying it'.
"I left feeling really betrayed and uncomfortable.
"It still angers me to think he had the audacity to think he could get away with that or that there was nothing wrong with it."
Anna’s consent was negated because she had only agreed to have sex if her partner used a condom. His decision to remove the condom therefore invalidated her consent – and became an act of rape.
A study published in BMJ Sexual & Reproductive Health earlier this year found that as many as one in four women accessing sexual and reproductive healthcare services say they are not allowed to take control of their own reproductive lives. Yet cases such as the Jason Lawrance conviction remain incredibly rare.
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Recently, judges in the extradition trial of Wikileaks founder Julian Assange set a precedent when they decided that, under Section 74 of the Sexual Offences Act, his removal of a condom during sex was a sexual offence.
Another case involved a husband and wife. She didn't want to have any further children and agreed to have sex provided her husband withdrew before he ejaculated.
He had agreed to do so but didn’t, and so his wife went to the courts with significant evidence to show that he had no intention to withdraw despite her terms of consent.
In this instance, the Crown Prosecution Service (CPS) decided not to prosecute the husband for rape, although his wife has since applied for a judicial review of the decision. She is yet to receive the results of her appeal.
The ruling in the Jason Lawrance case is important because whatever is decided will be used as a guiding judgment in similar cases in the future.
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One of the easiest ways of making contraceptive sabotage clearer would be to properly describe acts like 'stealthing' in statutory law.
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One of the easiest ways of making contraceptive sabotage such as this clearer would be to properly describe acts like 'stealthing' in statutory law, by getting an amendment to the Sexual Offences 2003 Act through parliament.
"If it was clearly stated in statute it would make it much less unclear as to whether it amounted to a criminal offence," Wistrich says.
"Whether it is helpful for it to be rape or you might want to create a different type of offence out of it."
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Dr Kyle Murray, a teaching fellow in public law and human rights at Durham Law School, and Tara Beattie, an AHRC doctoral scholar at Durham Law School, have been conducting one of the most extensive pieces of research into whether or not a law of conditional consent would be better.
"The principle behind the Sexual Offences Act 2003 was autonomy," Dr Murray says.
That’s the human right to choose what happens to our body – and what we don’t want to happen, too.
"We think if it is about autonomy, then really, the courts should be saying that it is up to the individual to define what consent they gave rather than the courts to tell people what consent is.
"The safeguard for that is that for there to be a sexual offence, a lack of consent on the victim’s part, there has to be a lack of reasonable belief of consent on the perpetrator’s part.
"If there are quirky consents that couldn’t have been known by the perpetrator at the time, like if someone only consented to sex under the understanding their partner was rich, for example, it is not an offence because the person accused reasonably believed in the consent. As long as you reasonably believe in the consent, then it isn’t a crime."
It is all very well discussing consent and what negates it, and defining contraceptive sabotage, but the fact remains: conviction rates for rape in England and Wales are so pitifully low that almost all cases of sexual assault reported to the police end without justice.
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Alarming figures released this year show that only 3.8% of all reported sexual offences result in a criminal charge being brought against the accused – and only 1.7% of reported rape cases end in a conviction.
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The 2017 Crime Survey for England and Wales shows that one in five women over the age of 16 have experienced sexual assault.
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The scale of the problem is huge. The 2017 Crime Survey for England and Wales shows that one in five women over the age of 16 have experienced sexual assault – that’s 3.4 million women in our communities who live with the impact of trauma on their lives.
The failure of the criminal justice system to properly apply the law appears at all levels, from police reporting to CPS decision-making and the unconscious bias of jurors. The situation is desperate – so what needs to happen to ensure that survivors of sexual assault are properly protected by the state through the courts?
Wistrich believes radical action is needed. Removing untrained juries from presiding over rape trials, she says, could be a solution worth exploring.
"I’ve seen again and again, even where the judge had given good directions to the jury, and there was clear video evidence of rape, the jury still acquitted the rapist. Even in the face of really strong evidence.
"It is a bit of pot luck, really, that you can get jurors that are very influential on cases, but we could look into something like an expert panel to decide things based on fact rather than on cultural stereotypes. We don’t have juries now on every type of case so it might be worth exploring."
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Dr Murray, however, believes that might be too radical.
"We think creating a culture that more fully respects an individual’s choice can really help in changing those attitudes that could bias a jury or a judge," he says.
"We need to change how we think, our perceptions about sex and consent.
"Going without a jury is a controversial proposal. One of the things we pride ourselves on is the jury system, I think there are less extreme ways we can do that.
"For us, it is all about awareness campaigns, there could be presentations to the jury in advance, a crash course in consent… Before you get to the extent of excluding a jury, we should do those other things first."
Wider cultural change amid an endemic crisis of sexual violence against women and girls seems like a long shot. It could take generations to effect that kind of change – with or without viral movements like #MeToo.
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We hear phrases like 'Things have gone too far in the other direction' a lot, and this is where I think the #MeToo movement is a bit of a red herring.
Katie Russell, Rape Crisis
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"There is a lack of public awareness legally around consent and people who have been through experiences like stealthing are being denied the right to be able to pursue justice," Russell concludes.
"We hear phrases like 'Things have gone too far in the other direction' a lot, and this is where I think the #MeToo movement is a bit of a red herring.
"A lot of these things predated #MeToo, including the Sexual Offences Act 2003 itself. But the movement had a big impact, and like everything like that, it causes a backlash because it exposes the status quo.
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"The status quo benefits from this system because people in positions of power and privilege traditionally don’t love it when those positions are destabilised. The idea that people who have experienced a sexual offence, that less than 2% get justice, is us going 'too far in the other direction' would be laughable if it wasn’t so utterly tragic."
If you’ve been affected by any of the issues discussed, visit Rape Crisis for free and confidential support.
*Not her real name. Katy’s identity has been changed to protect her legal right to anonymity, which all survivors of sexual violence have.
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