CPS to update guidance on gender deception and vitiation of consent to sexual activity

The Crown Prosecution Service (CPS) is holding a public consultation on a proposed revision to its legal guidance on Rape and Serious Sexual Offences (RASSO), focused on gender deception and the vitiation of consent.  The guidance for prosecutors is due to be expanded to better address the complex issues surrounding gender identity.

The statutory definition of consent can be found in section 74 of the Sexual Offences Act 2003

“for the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice”.

In R v McNally [2013] EWCA 1051 the defendant had deceived a girl (‘M’) into sexual activity on four occasions on the basis that she had disguised herself as a boy. M said that she would not have consented to sexual activity if she had known that McNally was really a girl (she had disguised herself as a boy by donning a strap on dildo). Her convictions for assault by penetration were upheld on the basis of the deception vitiating consent. In 2017, Gayle Newland was convicted of the same offences following a re-trial in similar circumstances where a prosthetic penis was used for penetration as part of a deception regarding her gender.

Under the current CPS guidance, prosecutors are tasked with addressing three questions when considering whether deception has been used in the context of a sexual offence.

Stage 1: Has there been active or deliberate deception by the suspect? If not, the deception will not fall within the scope of section 74 of the Act and consent will not be vitiated. However, if there is a deliberate deception, consider the second question.

Stage 2: Was the complainant deceived and therefore did not consent? If so, consider the third question.

Stage 3 Did the suspect reasonably believe the complainant consented?

The purpose of the consultation is to invite opinion about the language in the current CPS guidance and specifically whether it is sensitive to the rights of trans persons to live in their new identity. As the above cases illustrate, the issues are rarely clear cut and prosecutors are likely to face the unenviable task of grappling with more factually difficult cases as shifting gender identity becomes more prevalent with generational change.

The consultation closes on 19 December 2022.

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