Legal Case Summary
R v Flattery (1877) 2 QBD 410
Criminal – Sexual Assault –Consent obtained through fraud – Pretence of Surgical Operation
Facts
The defendant, John Flattery (JF) posed as a medical doctor and surgeon. The complainant, a young woman aged 19, consulted JF with respect to an illness she was suffering, accompanied by her mother. JF advised that surgery was required. Under the pretence of performing surgery, JF had sexual intercourse with the complainant. The crown brought proceedings against JF under Statute 13 Edw. 1, c. 34, charging him with rape.
Issues
The issue was whether submission to sexual intercourse amounted to consent. The complainant had submitted to JF’s advances, but only on the belief that he was treating her for her seizures. Submission did not amount to consent by law where that consent had been obtained by fraud. There was no consent given to JF to have intercourse with the complainant, only to treat her medically.
Decision / Outcome
The complainant submitted to the intercourse on a false pretence and was therefore unlawful. Mellor J. relied on the case of R v Case 19 L. J. (Mag. C.) 174, agreeing with and quoting Wilde, C.J. that,
“she consented to one thing, he did another materially different, on which she had been prevented by his fraud from exercising her judgment and will.” (paragraph 414)
Mellor referred to the Statute 13 Edw. 1, c. 34 which defined rape to be sexual intercourse that had not been “assented [to] before nor after”. Mellor concluded that submission may be considered as consent, but not where consent was only given for some other action or thing and not sexual intercourse. The appeal was dismissed and the conviction stayed.
Updated 20 March 2026
This article accurately summarises the facts, issues, and outcome of R v Flattery (1877) 2 QBD 410 as a historical common law authority. The case remains a valid and frequently cited illustration of the principle that submission obtained by fraud as to the nature of the act does not constitute consent to sexual intercourse.
Readers should be aware, however, that the statutory framework governing rape and consent in England and Wales has changed substantially since 1877. The Statute 13 Edw. 1, c. 34 discussed in the case has long been superseded. Rape is now governed principally by the Sexual Offences Act 2003, which provides a statutory definition of consent (section 74) and sets out conclusive and rebuttable presumptions about consent (sections 75–76). Section 76 specifically provides a conclusive presumption that the complainant did not consent where the defendant intentionally induced the complainant to consent by impersonating a person known personally to them, or by deceiving them as to the nature or purpose of the act. The broader principle in Flattery — that fraud as to the nature of the act negates consent — is therefore now reflected in statute, though the precise scope of deception vitiating consent has been further developed by later cases including R v Linekar [1995] QB 250, R v Tabassum [2000] 2 Cr App R 328, and R v McNally [2013] EWCA Crim 1051. Students should read Flattery in light of these statutory and case law developments rather than as a self-contained statement of current law.
