He says 'I'll pay you later'. You only have sex with him because you expect to be paid… but he doesn't pay.
Is this rape?
In England and Wales, the answer is NO. (We strongly suspect the same will be the case in Scotland, and also countries like Australia, NZ, Canada and the US which look at UK law.)
The current test case on the issue is R v Linekar [1995] QB 251
Here's what the Law Commission had to say when they did a review of the consent laws (large PDF file):
A recent example of deception which did not relate to 'the nature of the act' is Linekar. This concerned a [female] prostitute who agreed to have sexual intercourse with a man for an agreed sum of £25, which he failed to pay. He was convicted of rape. The jury had been directed that if they found that the victim had consented to intercourse in the belief that [they] would be paid, and the defendant had never intended to pay, then that fraud would [cancel their] consent. Quashing the conviction, Morland J said:
"…an essential ingredient of the offence of rape is proof that the [complainant] did not consent to the actual act of sexual intercourse with the particular man who penetrated [them] … The importance of … Clarence, in our judgment, is that it exposes the fallacy of the submission that there can be rape by fraud or false pretences."
('Clarence' – [1888] 22 QBD 23 – is a Victorian case where a husband deliberately didn't tell his wife he had gonorrhoea, and she said that she would not have consented to sexual intercourse with him had she been aware of his disease. He was found not guilty, on appeal, of assault.
Using this as a precedent became rather more risky recently thanks to the first of the English cases involving men who had infected women with HIV, when the Appeal Court decided that Clarence no longer applied with regard to transmission of concealed infections – if Clarence were tried again today, he'd be convicted.
We don't think that this affects the payment issue – in none of the HIV cases has the man been charged with rape but rather with causing grievous bodily harm – and the Appeal Court has continued to refer to Clarence in relation to 'nature of the act' cases.)
But didn't the Sexual Offences Act 2003 change this?
Yes, but by making it clearer that this is the case. The changes in the law on consent contained within the Sexual Offences Act 2003 did not change this.
When section 76 talks about the defendant intentionally deceiving the complainant as to the 'nature or purpose' of the relevant act, it is not talking about whether or not you will get paid for it, but rather whether or not it is presented as being a sexual act or not.
If you consent to a doctor giving you an internal examination believing it to be for a medical purpose, but in fact it is being done for the doctor's sexual gratification, then it is an offence. The nature and purpose of the act was concealed from you.
But if you consent to someone putting their penis in you knowing it is for a sexual purpose, then it does not matter – legally – if they've lied in order for you to give that consent. (Morally, it stinks and they deserve castrating.)
It used to matter: the Sexual Offences Act 1956 contained a section – 's3 Procurement of woman by false pretences' – which made it an offence to 'procure a woman, by false pretences or false representations to have sexual intercourse'. It was repealed by the 2003 Act, in part because it was so rarely used.
That's not surprising, because where would the line be drawn? Saying "I love you" when they don't?
So in the case of someone saying 'I'll pay you later', you know he wants to stick his penis in you for sexual gratification. You consent to him doing so and your expectations about the future don't matter – as far as the consent laws are concerned. You said 'yes' at the time, and changing your mind later is too late.
Everyone old enough to have sex should know that there are some people who will lie in order to get the sex they want, and act accordingly.
This issue was explicitly covered in the consultation that preceded the introduction of the new law and Parliament has failed to legislate otherwise. As such, it is very unlikely that the courts will change their mind on this issue at any point in the near future..
Please note
It is entirely possible – and increasingly likely – for someone who has raped a sex worker to be convicted of rape.
The Metropolitan Police's Sapphire project to improve rape investigation and victim care, for example, is committed to treating sex workers equally with non-sex workers, and male survivors as well as female survivors.
Elsewhere, rapists have recently been convicted in Stoke on Trent and Northampton after attacks on prostitutes.
Summary
| A | B | C | D | E | F | |
|---|---|---|---|---|---|---|
| Him: | I want sex, I'll pay you later | I want sex, but I don't want to pay what you're asking | I want sex, here's the money | I want sex, here's the money | I want sex, here's the money | I want sex, here's the money |
| You: | OK | No! | OK | No! | OK | OK |
| (sex happens) | (sex happens) | (sex starts) | (sex happens) | (sex happens) | (sex happens) | |
| You: | Where's my money? | Stop! | This money's forged! | |||
| Him:: | I never intended to pay you | No, I want to get what I've paid for | I know | I'm taking back my money! | ||
| Rape? | NO | YES | YES | YES | NO | NO |
(The man in case E will be guilty of an offence relating to the forgery, and the man in case F will be guilty of another offence, eg if he pays by cheque and tells his bank to stop payment on it.)
Part of the basics of safe working in the sex industry is always remembering the first words in the Bible, according to the play Shopping & Fucking anyway…
Get The Money First