Singh v R: Sex by Deception and Gender Dysphoria

Last week the Court of Appeal (Criminal Division) delivered judgment in an appeal of the conviction of a trans man on several counts, including sexual assault by deception. The appeal sought to rely on new psychological evidence relating to gender dysphoria which raised issues of culpability and how the appellant, a trans man convicted of sexual assault by deception, would cope in prison conditions.

Facts

Tarjit Singh was convicted on 24 and 25 May 2022 of three counts of assault by penetration against three separate women, six counts of assault occasioning actual bodily harm against two of these women and one count of making a threat to kill against one of them. The complainants have lifelong anonymity and were therefore referred to as C1, C2, and C3 respectively.

Singh was born female and named Hannah Walters but at the time that these offences occurred presented as a man, dressed as a man and used a man’s name. Each victim gave a similar account of what happened to them, beginning with C1 who met Singh when she was 16 via mutual friends on Facebook in June 2010. In her victim statement, C1 stated that at the time they had met, she was in a very vulnerable place in her life, having problems with her family, and that she felt Singh had taken advantage of this and manipulated her.

A few days after they met, the two engaged in sexual acts. Singh was fully clothed and C1 was naked. It was dark and the curtains were drawn when Singh left the room and returned having, unknown to C1, put on a strap-on dildo, preceding to penetrate C1’s vagina. C1 was not aware at this time that Singh was female. The penetration lasted 20 minutes before Singh pretended to ejaculate and rushed to the bathroom.

A relationship developed where C1 pretended to be happy out of fear and dependance, given her difficult relationship with her family. 9 months later, Singh was incarcerated in a women’s prison for unrelated offending, telling C1 that this was an administrative mistake.

C2 first met Singh in 2013 at a chicken shop in London, proceeding from WhatsApp messaging to dating and, after six weeks, sexual intimacy at Singh’s flat. A similar series of event occurred, involving a dark room, a rush to the bathroom, and deceptive use of a strap-on dildo to penetrate C2’s vagina. This time, penetration only lasted for 5 minutes and C2 felt that something was not right, suspecting potential use of a sex toy.

The next time the two were intimate, Singh and C2 discussed this, with Singh claiming to have been born male but, having undergone sex reassignment surgery, regretted it and now wished to live as a man again. They proceeded to have a year long relationship which was marked by violence and assault. C2 suffered from chronic depression and has been diagnosed with a borderline personality disorder.

C3 had been in a relationship with Singh from 2014-2016. She had learning difficulties and severe dyslexia. She met Singh on an online dating site, claiming to be a man with children. Again there was a dark room and a strap-on dildo used to penetrate the victim’s vagina by deception. Again there was violence, this time culminating in black eyes and a brutal assault with a telephone, requiring an operation to reset her nose, and eventually a threat to kill.

Singh was arrested in March 2016 denied all assaults and claimed that any sexual activity was fully consensual. This account was rejected and the convictions mentioned above eventually followed. The sexual assaults occurred because deception as to one’s biological sex is capable of vitiating consent and without consent or the reasonable belief in consent, penetration of the vagina is a crime (See R v McNally).

The purpose of the appeal decided last week was to determine whether the initial sentencing following conviction was fair. The initial sentencing judge concluded that each of the complainants had suffered because of Singh’s cruel and calculating controlling behaviour. Taking the issues in there totality, the judge took the first count, assault by penetration of C1 to be the lead offence because it involved a 16 year old girl who was particularly vulnerable and whom Singh kept from her family. The crime involved a significant degree of planning, indicating culpability associated with a custodial sentence of 5-13 years.

However, with regard to C2 and C3, the judge was not entirely persuaded that there was particular vulnerability or significant planning in relation to the sexual assaults. The starting point for penalty were 2 years custodial sentences with a range of high level community order to 4 years imprisonment. The judge found the assaults occasioning actual bodily harm has a starting point of 2.5 years each and the threat to kill had a starting point of 3 years.

The judge found that Singh was dangerous, noting repeated acts of serious sexual violence against three different female victims, repeated assaults and threats to kill. The judge imposed a sentence of 10 years imprisonment with an extended licence period of 3 years.

The judgement delivered last week concerned the admission of fresh evidence relating to Singh’s gender dysphoria and its impact upon issues of culpability and the ability to cope in prison conditions.

Was Culpability Reduced?

It was common ground among the medical experts called that Singh had gender dysphoria and personality disorders. It was agreed that a trans man, “living as a man but anatomically female” would find conditions in a female prison difficult, given the likelihood of being referred to as a woman.

One medical expert suggested that Singh may have mind blindness - an inability to comprehend the mental states of others - but the Court of Appeal rejected this because it was not consistent with the evidence of calculated deception, including pretending to have children and pretending to ejaculate.

The Court also concluded that, while Singh did have gender dysphoria and personality disorders, this did not lead to a reduction in culpability:

there was not sufficient connection between the appellant's impairment or disorder and the offending behaviour. As to the gender dysphoria, it is clear that the appellant would not have been motivated to commit the sexual offences against the complainants if he did not have gender dysphoria, but the existence of that diagnosis does not explain or mitigate the appellant's deceit of the three complainants, or his assaults on two of the complainants or the threat to kill one of them. All of the experts accepted, and it is obvious, that the fact that a person has gender dysphoria does not mean that such a person would deceive complainants into being penetrated by a dildo. It is apparent from all the information before the Court that the fact that the appellant has gender dysphoria has caused real difficulties for the appellant. The fact, however, that the appellant has gender dysphoria does not mitigate the appellant's actions in deceiving the three separate complainants into being penetrated without their consent.

As such, the Court of Appeal concluded that there was nothing in the material before it to justify a reduction in the initial sentencing, save as it relates to a statutory surcharge of £100 which was accepted by all to have been unlawful.