Legal Case Summary
R v Flattery (1877) 2 QBD 410
Criminal – Rape – 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. JF was convicted of rape, and the trial judge reserved the question whether the conviction was warranted in law for the Court of Crown Cases Reserved.
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. Her submission to supposed medical treatment did not amount to consent to sexual intercourse. There was no consent given to JF to have intercourse with the complainant, only to treat her medically.
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Decision / Outcome
The complainant’s submission to what she believed was a surgical operation was not consent to sexual intercourse. 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.” (page 413)
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 there had been no submission to sexual intercourse, only to a different act. Kelly CB rejected the argument that, because the complainant was 19, she must have understood what was happening: even knowledge of sexual intercourse would not establish that she realised penetration was being effected with the defendant’s penis rather than a hand or instrument. All five judges agreed that the conviction should be affirmed.
Source: Original report, The Queen v Flattery (1877) 2 QBD 410.
