New guidance on sex by deception muddles the law
On 13 December 2024 the Crown Prosecution Service released updated guidance on how prosecution for rape and other sexual offences should proceed. This included new guidance on how prosecutors should approach issues of consent when handling cases involving alleged deception as to the natal sex of one party.
For crimes such as sexual assault, assault by penetration, and rape, lack of consent is a central element of the offence. Section 74 of the Sexual Offences Act 2003 states that to consent, one must agree by choice and have the freedom and capacity to make that choice. That is ordinarily an evidential matter to be determined based on the facts of the individual case. There is however, a conclusive presumption established in s76(2)(a) that the complainant did not consent and that the defendant did not believe that the complainant consented where “the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act”.
Caselaw has established that a sexual partner’s biological or natal sex is sufficiently proximate to the nature of sexual activity that it is fundamental to the freedom and capacity of a person to choose to engage in that activity. Therefore, an intentional deception as to biological sex is capable of vitiating consent.
R v McNally
The leading case on this is R v McNally (2013) EWCA Crim 1051. Justine McNally and a girl, M, met on an online gaming site when McNally was 13 and M was 12. McNally went by Scott and M believed that she was communicating with a boy. Over the next three and a half years an online relationship developed and M began to refer to McNally as her boyfriend. They spoke online and over the phone about getting married and having children. This relationship became sexual and the two would occasionally have phone sex, where McNally would speak about “putting it in” which M understood to mean penile penetration. Just after M turned 16 the two arranged for McNally to visit her in London. McNally was collected by M and her mother while wearing a strap-on dildo underneath a pair of trousers. Over several months, McNally met with M on numerous occasions and preformed oral sex on her.
Eventually M’s mother confronted McNally about “really being a girl” and revealed the truth to M. This caused considerable distress for M who felt “physically sick” after having been lied to for four years. M said that she was heterosexual and would not have consented to sexual activity with McNally if she had known McNally’s natal sex.
McNally was convicted of six counts of sexual assault by penetration and these convictions were upheld on appeal. In considering whether deception as to one’s natal sex could vitiate consent, in the sense that it imparted M’s freedom and capacity to choose, the Court of Appeal concluded at [26] that
while, in a physical sense, the acts of assault by penetration of the vagina are the same whether perpetrated by a male or a female, the sexual nature of the acts is, on any common sense view, different where the complainant is deliberately deceived by a defendant into believing that the latter is a male. Assuming the facts to be proved as alleged, M chose to have sexual encounters with a boy and her preference (her freedom to choose whether or not to have a sexual encounter with a girl) was removed by the defendant’s deception.
This is an important statement in defence of the integrity of sexual orientation. The court is here recognising that what, on a surface level, appears to be the same sexual act is altered by virtue of a deliberate deception as to whether a partner is male or female. M is heterosexual. Deceiving her into believing that McNally was male took away her freedom and capacity to choose whether or not to have sex with a girl because she was denied the chance to make that choice herself. Further, the deception arguably went to the nature of the act itself rather than the consequences of the act such as pregnancy or the contraction of a sexually transmitted disease.
The Court of Appeal in McNally concluded that deception as to natal sex is capable of vitiating consent. In so holding, the court recognised that sexual orientation matters for the nature of sexual activity. Engaging in sexual conduct with a man is different in kind from engaging in sexual conduct with a woman. This is particularly important for people who are sexually attracted exclusively to members of one sex, as they are likely to be particularly psychologically harmed by the deception.
Some people are sexually attracted to members of both sexes. They might - although it should not be presumed - not care whether their sexual partner is male or female in the abstract. But the issue with sexual assault by deception is in how deception removes the freedom and capacity to make that choice - to consent to it. It might be the case that some people would, with full knowledge, be indifferent to the natal sex of their partner. But there are two important points to be made in response to this. First, the fact that some people would be indifferent to the natal sex of their partner does not mean that the nature of the sexual activity is not different; and second, it does not mean that the freedom and capacity to make that choice has not been removed by a deliberate deception.
McNally has been favourably discussed in subsequent cases. Notably, in R (Monica) v DPP [2018] EWHC 3508 (Admin), the High Court noted at [77] that
“In her decision, the CPS lawyer analysed the decisions of the Court of Appeal dealing with section 74 and deception. For present purposes, she identified cases which relate directly to the sexual act and where the deception puts the sexual health of the complainant at risk; and those which strike at the heart of the complainant's sexuality, which she characterised as a deception "as to the fundamental identity of the perpetrator." In the CPS lawyer's view, McNally could be analysed as an identity or impersonation case, given the centrality of an individual's sexuality to her or his identity, and we would agree.
The issue of identity here is not about the subjective identity of the perpetrator. Rather, it is focused on the sexuality of the complainant. What matters here is that a deception as to ones natal sex can strike at the heart of a complainants sexuality, violating their sexual boundaries by deceiving them into thinking that they were engaged in acts of one sexual nature (heterosexual/homosexual) when they were in fact of another sexual nature (homosexual/heterosexual). This is particularly relevant when, as has been true in many of these cases, the complainant was young and acutely vulnerable at the time the deception occurred.
McNally was not decided on the basis of the s76 conclusive presumption that intentional deception as to the nature or purpose of the act vitiates consent. It was instead decided on the basis that on the facts of this case, the deception removed the freedom and capacity of M to choose whether or not to have a sexual encounter. There is, however, some ambiguity here because s76 engages this conclusive presumption where there is intentional deception as to the nature of the act and the Court of Appeal in McNally concluded that the same physical act of digital penetration is a different sexual act depending on whether the penetration was from a male or a female. If the s76 presumption applies to deception as to the sexual nature of the act in addition to the physical nature of the act, the reasoning in McNally would support the conclusion that intentional deception as to one’s natal sex always vitiates consent, by virtue of the s76 conclusive presumption. This question has not been addressed to date however, so at most it can be said to be ambiguous. What is not ambiguous is the fact that deception as to natal sex is capable of vitiating consent to sexual activity.
McNally has been heavily criticised for the implication that it has for how people with transgender identities are expected to navigate sexual relationships, because of the pressure it puts on them to disclose their natal sex prior to sexual activity. That may be something that many transgender people do not wish to do. But our law states that a deliberate deception as to natal sex removes the capacity of others to consent to sexual activity. Under the criminal law, consent matters more than the desire to avoid an awkward conversation. Even assuming that one’s natal sex is information protected under the right to respect for private life, that right is not unqualified and cannot be used to violate the rights of others.
The CPS Guidance
The guidance issued by the Crown Prosecution Service states the following:
How a trans or non-binary person experiences and expresses their gender can be a complex issue. The decision on whether to prosecute must be based on the evidence in each individual case, but the following information is provided for background context, as it may assist prosecutors to make more informed decisions:
Many people who have transitioned may not regard themselves as trans, but simply as a man or a woman.
Gender identity can be fluid and/or emergent for some persons, particularly for young persons, who may be exploring the nature of their identity and/or sexuality, or for non-binary people, who may identify as a man and a women or neither.
A person whose gender identity isn’t the same as their sex may express their gender through their speech, dress, gestures, mannerisms etc, without this being a fabrication, a performance or a deception. (It is important to recognise that non-trans people may also have a multitude of ways to express themselves, even if their gender identity is the same as their sex.)
To acquire a Gender Recognition Certificate, a person is required to live in the acquired gender for 2 years. To meet this condition, some may think it necessary to conceal their sex.
Some trans people may be wary of revealing their birth sex due to social stigma, transphobia or safety considerations, which may produce high levels of anxiety.
One feature of this guidance is the fact that the CPS begins by drawing a clear distinction between sex and gender identity but then blurs this line when discussing the how deception as to sex can vitiate consent. For example, this guidance on how transgender people perceive themselves equivocates on whether prosecutors should focus on whether people who have transitioned regard themselves as “a man or a woman” where these terms relate to sex or gender identity.
A more foundational issue however is simply one of relevance. It is just not clear why it should matter that a transgender person has deceived a sexual partner as to their natal sex because they mistakenly think it is necessary to conceal their sex. Necessity is not a defence to sexual assault and a deception motivated by a misunderstanding of the law is still a deception. So this guidance cannot, on this point at least, pertain to whether the crime has been committed.
Of greater salience is a series of misstatements of the law all brought about by introducing a novel variable of gender identity into the legal tests for deception that can vitiate consent. The CPS guidance states that “The defendant in McNally was not trans or non-binary; she was female but presented as male.” This makes it seem as though 1) these statements are in some way contradictory and 2) that this difference matters in law.
It is, of course, entirely possible that McNally could have been both “female but presented as male” and “trans or non-binary”. The question for us is whether a transgender or non-binary identity would matter in a case involving deception as to natal sex.
It is clear that the CPS is of the view that this identity does matter. It notes that “To date, there have been no cases considered by the appellate courts involving a trans or non-binary defendant that address this issue”. The presumption here must be that a case involving a trans or non-binary defendant would, simply by virtue of the gender identity of the defendant, be sufficiently different from the other cases involving deception as to natal sex that they could be distinguished. This is a legally unfounded presumption that is not explained in any detail in this guidance. It is not in any way clear on the facts of McNally, how the case would have been decided any differently if McNally had identified as trans or non-binary.
The CPS guidance initially correctly states that:
McNally is therefore authority for the proposition that a deliberate deception as to the defendant’s sex is so connected to the nature of the sexual activity that, depending on the circumstances, it is capable of vitiating consent.
However, from here the guidance then introduces the concept of gender identity, stressing that:
It is arguable that McNally and the other authorities do not conclusively address the position in relation to trans and non-binary suspects. The question remains whether the sexual nature of the act is different where the complainant is deceived into believing that the defendant is not trans or non-binary; and, if so, whether different considerations apply.
McNally does address the position in relation to suspects with a trans or non-binary identity: if they deceive someone as to their sex, this is capable of vitiating consent because the deception is so connected to the nature of the sexual activity in question. That proposition of law applies to all people, regardless of their sex, religion, race, sexual orientation, gender identity, or any other characteristic. We are all subject to the same law; there are no legal immunities to based on gender identity.
The guidance is correct that a question remains whether the complainant is deceived as to the defendants trans or non-binary gender identity. But it is clear that this guidance is proceeding from the presumption that this is an either/or question; as if someone with a trans or non-binary gender identity can only deceive another as to their gender identity and this somehow overrides or negates a deception as to natal sex. It does not. There is no legal authority to support this position. This guidance introduces the issue of transgender identity as if that is an ambiguous aspect of the law relating to deception as to natal sex. There is no confusion in the law here.
McNally established a clear, general proposition of law. It would be shocking to suggest that this case did not conclusively address the position in relation to black or muslim suspects, as if the general rule that deception as to natal sex is capable of vitiating consent did not apply to them. What potentially sets transgender and non-binary suspects apart is not whether the same rules apply to them, but whether there is something about gender identity that affects how this rule applies.
Sex by deception and transgender identity
This guidance begins by drawing an important distinction between sex and gender identity but then proceeds to treat cases involving transgender defendants as if the only relevant deception here relates to gender identity. This is done by presenting the deception as being about whether the defendant is “not trans” rather than “male” or “female”. But these are not mutually exclusive categories in law and should not be treated as such in this guidance.
As mentioned above, s74 of the Sexual Offences Act 2003 sets out the general rule relating to consent for the purposes of sexual offences where lack of consent and reasonable belief in consent are relevant. It states that “a person consents if he agrees by choice, and has the freedom and capacity to make that choice”. A determination of whether someone has consented to sexual activity will, in the absence of the s76 conclusive presumption, be determined as a matter of fact, to be established based on the circumstances of the case.
We can also infer from the relevant caselaw that a deception as to gender identity, independent of a deception as to natal sex, is not sufficiently proximate to the act in question to constitute a deception as to the nature of the act. As the High Court concluded at [72] in R (Monica) v DPP [2018] EWHC 3508 (Admin), citing Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin):
deception which is closely connected with “the nature or purpose of the act”, because it relates to sexual intercourse itself rather than the broad circumstances surrounding it, is capable of negating a complainant’s free exercise of choice for the purposes of section 74 of the 2003 Act.
Deception must be closely connected with the nature or purpose of the act. That occurs when the deceptions pertains to the perpetrator’s natal sex, but gender identity is not sufficiently closely connected to the sexual intercourse itself to engage s74. It is at most, a part of the broad circumstances surrounding the sexual activity.
That means that in cases involving deception as to transgender identity where there is no deception as to sex, say where someone pretends to have a transgender or non-binary identity when they do not, the law will not treat that as having or even being capable of vitiating consent for the purposes of sexual offences.
Unfortunately, due to the confused way in which this guidance is structure, partially as a result of failing to distinguish between deception as to sex and deception as to gender identity in cases involving transgender defendants, this distinction is obfuscated and the guidance suffers in terms of clarity as a result.
So, we have established that the consent is capable of being vitiated in cases involving deception as to natal sex, but not in cases involving deception as to gender identity where there is no deception as to sex. Guidance purporting to provide clarity in this area must not shy away from distinguishing between sex and gender identity when it comes to transgender or non-binary suspects. In the context of sex by deception, it’s sex that matters, not gender identity.
Deception by omission
We have established that deception as to natal sex can vitiate consent. We’ve established that this pertains to sex not gender identity. What matters now is how the law determines “deception”. It is here where transgender identity may be relevant, not because the deception is as to someones gender identity, but because in cases involving deception as to natal sex, transgender identity could potentially speak to whether there has been deception at all. None of this is made clear in the CPS guidance because it presents all cases involving transgender or non-binary defendants as though the deception was as to trans status rather than natal sex.
On the relationship between deception and omission, the Court of Appeal in R v Lawrance [2020] EWCA Crim 971 had the following to say at [40]-[41]:
deceit and deception are very slippery concepts which, at one end of the spectrum, may result from a clear short lie, through more obscure utterances, obfuscation or evasion, to conduct designed to convey an unspoken false impression. In this area it is difficult to draw clear principled lines which could distinguish a deceit resulting from one course from another.
In our view, in any event, it makes no difference to the issue of consent whether, as in this case, there was an express deception or, as in the case of R v B, a failure to disclose. The issue is whether the defendant’s lie was sufficiently closely connected to the performance of the sexual act, rather than the broad circumstances surrounding it.
The law draws no distinction between deception arising from outright lies and deception arising from failure or refusal to disclose relevant information that is sufficiently close connected to the performance of the sexual act. What matters here is whether the deception related to the freedom and capacity of the complainant to choose to engage in sexual activity. For some people, the natal sex of their partner will not matter. For many, it will not just matter, it will be central to the integrity of their sexual orientation. For those people, an omission will constitute deception that could vitiate consent.
Reasonable belief in consent
Once it has been established that sexual activity occurred where consent was vitiated by virtue of a deception which was closely connected to the nature and purpose of the sexual act, it must then be shown that the defendant did not reasonably believe that there was consent.
The reasonable belief standard is an objective one. The mere fact that the defendant thought that the claimant consented is not sufficient. Whether the belief in reasonable will depend on all of the evidence and circumstances of the individual case. The CPS has produced some guidance that should be considered in answering that questions that is mostly helpful.
The recurring issue throughout this guidance appears here again, however. This guidance continues to present its as though deception as to gender identity is capable of vitiating consent. It is not. Gender identity is simply insufficiently closely connected to the nature or purpose of the act to fall within the scope of s74. In my view, this guidances makes reference to gender identity alongside sex as a gloss that allows it to mention sex where it is relevant. Something may be preventing the CPS from simply referring to sex in this guidance. For example, the guidance notes:
Prosecutors should examine the facts and circumstances of the suspect’s claim and consider what steps the suspect has taken to satisfy themselves that the complainant was aware of their gender identity and / or sex and that they consented to the sexual act.
The reference to gender identity here is unnecessary and, worse, confusing. The law will not treat consent to have been vitiated by virtue of a deception as to gender identity. Gender identity is not sufficiently proximate to the sexual activity in question. The natal sex of the parties is.
Transgender people are free to disclose or withhold information about their gender identity without any fear that it will constitute a deception that could vitiate consent to sexual activity. They should be much more careful about misrepresenting or withholding information about their natal sex because that has the potential to constitute an element of a sexual offence. Any guidance purporting to assist in understanding this area of law should be very clear about that distinction.
I don’t have a crystal ball (I left it in Glasgow while I’m home in Ireland for the Christmas break), so I can’t explain why the CPS uses gender identity alongside sex throughout this guidance. My suspicion is that guidance relating to people with transgender identities which only mentioned sex would be seen as offensive or invalidating of transgender identities. That is simply no excuse for getting the law wrong.