R v Flattery (1877) 2 QBD 410
Facts
A young woman who experienced fits went with her mother to a man who presented himself as able to provide medical treatment. He used the supposed treatment as a pretext for sexual intercourse. The woman submitted because she understood what was happening to be a medical procedure, rather than agreeing to sexual intercourse as such. The prosecution therefore concerned the nature of the act to which she had consented. The case was decided under the historical common law of rape, long before the statutory framework introduced by the Sexual Offences Act 2003.
Legal Issue
Did submission to what the complainant believed was medical treatment amount to consent to sexual intercourse when the defendant deliberately concealed the sexual nature of the act?
Held
The Court for Crown Cases Reserved upheld the rape conviction. Consent to the supposed medical procedure was not consent to sexual intercourse. The defendant had misrepresented the nature of what he was doing, so the complainant's submission could not be treated as agreement to the sexual act. The reasoning concerns the act understood and authorised by the complainant, rather than an assumption that absence of physical resistance establishes consent. It should not be expanded into a historical rule that every deception surrounding a sexual encounter had the same effect. The particular deception about the character of the act was central to the decision.
⭐ Legal Principle
Submission obtained by concealing sexual intercourse as a medical procedure is not consent to sexual intercourse. The historical decision distinguishes agreement to the act actually performed from apparent cooperation based on a fundamentally different understanding of its nature.
Significance
Flattery is a useful historical illustration of the difference between consent and submission induced by deception about the act. Modern sexual-offence problems require analysis under the applicable statutory provisions, including sections 74 and 76 of the Sexual Offences Act 2003, rather than treating the 1877 case as an interpretation of that Act. The absence of resistance does not resolve consent, and the precise nature of any deception must be identified before drawing a legal conclusion.
Common exam questions about this case
Why was agreeing to medical treatment not consent to intercourse?
The complainant understood the act as treatment and did not agree to its actual sexual nature. The defendant's deception concerned what was being done, rather than merely a peripheral reason for agreeing. Her physical submission therefore did not establish consent to the act on which the rape charge rested.
Does Flattery establish that every sexual deception has the same legal effect?
No. Its historical reasoning concerns a deception about the nature of the act itself. Different forms of deception may raise different legal questions, particularly under later legislation. An answer should identify the precise representation and the applicable provisions instead of treating the word deception as a complete analysis.
How should the case be used alongside the Sexual Offences Act 2003?
Use it to explain the historical distinction between apparent submission and agreement to the act performed. Then apply the relevant statutory definition and presumptions to modern facts. The case predates the 2003 Act, so it cannot itself determine every question about the wording or reach of its provisions.