Same sex sexual violence and sexual violence involving a trans complainant or suspect/defendant - Toolkit for Prosecutors

• Introduction
• General Considerations
• Sexual violence between men
  • Myths and Stereotypes
  • Evidential Considerations
  • Victim and Witness Support Considerations
• Sexual violence between women
  • Myths and Stereotypes
  • Evidential Considerations
  • Victim and Witness Support Considerations
• Sexual violence involving bisexual victims
  • Myths and Stereotypes
  • Evidential Considerations
  • Victim and Witness Support Considerations
• Sexual violence involving Trans victims
  • Myths and Stereotypes
  • Evidential Considerations
  • Victim and Witness Support Considerations
• Acknowledgements

Introduction

The purpose of this toolkit is to support prosecutors considering issues which may arise in relation to cases of sexual violence involving adults where both the complainant and Suspect/Defendant are the same sex; or where the complainant is bisexual or trans. It is intended as a guide to assist prosecutors to examine the available evidence, identify specific considerations, and consider the case in the light of all relevant circumstances.

This toolkit is intended to complement current policy or guidance in relation to rape and serious sexual offences, including the Violence Against Women and Girls Strategy and position statement on male victims. Key VAWG policies and guidance documents can be accessed here.

The starting point for prosecutors is always the training they have received on prosecuting RASSO cases. However, there are different and/or additional factors to consider in same sex situations or where the complainant is bisexual or trans.

This toolkit is divided into the following sections:

• General Considerations
• Sexual violence between men
• Sexual violence between women
• Sexual violence involving bisexual victims
• Sexual Violence involving trans victims

General Considerations

1. Context​

It is important in all such cases to bear in mind that people from LGBT communities experience homophobia, biphobia and/or transphobia in society on a daily basis. The impact of this on LGBT individuals should not be under-estimated. It can have an impact on their self-esteem, their willingness to be open about their sexual orientation and/or gender identity, their view of their place in society, and their willingness to engage with public bodies, particularly the criminal justice system. Prosecutors must consider these impacts in relation to the complainant or Suspect/Defendant or both.

2. Coming Out

"Coming out" refers to the process by which an individual accepts their own sexual orientation or gender identity; and then makes it known or allows it to be known by others. Coming out is not a "one-off" process. LGBT individuals are constantly making decisions as to whether or not to counter the assumption that they are heterosexual, and have to make this decision in every encounter with people who do not know.

The decision is based on a number of factors, but the first step is usually a risk assessment, to determine how safe it is to be out to any particular individual. Some LGBT people are out in every aspect of their life. Most will on some occasions make the decision not to be out in a given situation. Some will be out in every aspect of their life except to their close family; others may be out to their family but choose not to be out at work.

Coming out always risks a homophobic, biphobic or transphobic reaction, and it is an individual decision to be taken weighing up the circumstances of each situation. Being outed (i.e. having someone else disclose this information without permission) can present a very real and immediate threat to an individual's actual safety, or sense of well-being and security, and ultimately to their mental health.​

Assumptions on any aspect of a person’s sexuality can be made by anyone – including other people in the LGBT community. This can also have an influence on how safe a person feels in coming forward. For example, if a lesbian woman was raped by a man, she might be fearful that people think she is actually bi-sexual.

Prosecutors should be aware of the risks involved for young people when exploring their sexuality since many offenders will take advantage of vulnerabilities in particular the reluctance of young people who may not be ‘out’ to report offences committed against them.

3. Children

Gay, lesbian, trans or bisexual people may have children and this may raise specific issues that prosecutors need to consider. Unless a child has been born into a relationship, or there are child arrangements orders or parental orders in place, the non-biological parent can be in a very insecure position in relation to the child. It was not very long ago that lesbian mothers commonly lost custody of their children in the family courts simply because they were lesbians and many members of the LGBT communities will anticipate ongoing homophobia or transphobia in the family courts. The presence of children in a relationship can have the following implications:

• It can place the biological parent in a position of power in determining the future relationship between a partner and the children. The threat of preventing future contact with the children can be a significant factor in controlling one partner's behaviour;
• Members of LGBT communities may have little faith in the family courts to protect their position, and are thus more likely to be subject to controlling behaviour on the part of a parent who has parental responsibility;
• The impact on children of a parent being outed publicly as LGBT can also be used by an abusive partner, and could impact on a parent's willingness to support a prosecution.​

4. Labels

Some people reject all labels referring to gender identity or sexual orientation. It is important to respect an individual's choices, and to ascertain from them how they wish to be addressed. Some LGBT people are very closeted and have particular fears about being outed. Others are very open about their identity, and it is important to them that their sexual orientation or transgender identity are acknowledged. This will affect how they identify and how they describe themselves, and it is important to respect individual choice in this respect. Even those who identify very publicly in many respects, may not be out in certain aspects of their lives. It is important for prosecutors to understand how a victim wants to be described, and to have a conversation with them about how they want to be presented in court, bearing in mind the language they prefer to use to describe themselves, but also language which will be readily understood by a jury. ​

5. So-called "Corrective Rape"​

So-called "Corrective Rape" is a term used to describe the rape of a woman who identifies as other than heterosexual, expressed by the perpetrator as being intended to "put her straight". It can also be perpetrated against trans men and women, and cisgender gay and bisexual men and also arises as an issue in so-called ‘Honour’ Based Abuse. Other sexual assaults may be carried out for the same purpose. In these circumstances the offence may be accompanied by a demonstration of hostility based upon the victim’s actual or presumed sexual orientation or transgender identity, or there may be evidence that the offence was motivated by hostility towards persons of a particular sexual orientation or transgender identity. Consideration should then be given as to whether there is sufficient evidence to support an application for a sentence uplift under the provisions of s.66 Sentencing Act 2020.

6. HIV Status

Public disclosure of a person's HIV status can result in discrimination, ostracism and/or violence. HIV status of either party should not be disclosed unless it is strictly relevant to the case. If it is necessary to make a disclosure consider whether there are any steps which can be taken to keep the information out of the public domain, at least pending the outcome of the case.​

7. Sexual Violence in prisons

The prison environment creates a closed community where some prisoners are particularly vulnerable, and where there is potential for sexual abuse. Power relationships between prisoners can be a significant issue. Ending a relationship and/or withdrawing consent to sexual activity can be particularly difficult in such a closed community. Prisoners sometimes form sexual relationships on the understanding that the relationship will end on the release of one or both parties. If one partner does not want the relationship to end there is then the potential for harassment and abuse outside of the prison environment.​

8. Barriers to Reporting​

All of the issues raised above deter LGBT people from reporting sexual offences against them. An additional barrier is a long-standing mistrust of authorities. Much has been made of late of the "decriminalisation of homosexuality" in 1967. In fact the 1967 Act provided protection from prosecution in relation to sexual activity between men in very restricted circumstances, and the criminal justice system continued to prosecute gay men for a variety of offences. Individual members of LGBT communities recall harassment by the criminal justice system, and therefore do not traditionally look to that system for protection. Whilst victims of sexual offences are entitled to anonymity, LGBT victims will have very real concerns as to the extent to which their identity can be protected. In small communities word travels fast, and it is likely that the rest of a victim's community will be aware of an on-going investigation and/or prosecution. This can result in social isolation. Given these barriers, and the risks to the victim of involving the police, it is likely that something very significant has happened to cause a victim to report.

Often those in same-sex relationships, particularly lesbian relationships, struggle to see that they are survivors. This is due to the commonly held assumption that only men perpetrate intimate partner violence and that lesbians are ‘free’ of such concerns. Often survivors do not acknowledge the abuse for what it is until a later stage or even after the relationship has ended due to coercive and controlling behaviours and also societal depictions of sexual violence as always perpetrated by men.

9. Sexual History​

There may be particular issues in relation to the disclosure of a victim's sexual history. Some LGBT victims may be particularly anxious that their sexual history may be used against them within their own community if it becomes common knowledge. This may be a deterrent to supporting a prosecution. A specific issue that may arise for some gay men is, that a conviction for cottaging (engaging in sexual activity in a public lavatory contrary to Section 73 SOA 2003) could be used wrongly to challenge credibility as a survivor or be used to tie into rape myths about ‘promiscuous’ gay men’s sexual behaviour. Prosecutors will be aware of the importance of opposing applications to admit evidence of sexual history in any event, but will need to take particular care to understand the concerns of LGBT victims.

10. Myths and Stereotypes

Reviewing lawyers will be familiar with the common myths and stereotypes which operate in RASSO cases. Different and/or additional myths and stereotypes operate in relation to LGBT communities, and it is important that prosecutors consider whether they themselves are applying any such myths and stereotypes, and then consider how best to address any myths and stereotypes held by a jury. Common myths and stereotypes are set out below.

Sexual violence between men​

Myths and Stereotypes​

• Gay men are all predatory
• Gay men are all paedophiles
• Gay men are naturally promiscuous and are attracted to all men
• Sex is not romantically significant to gay men – it is something they all regularly engage in on a casual basis
• Gay men do not have long-term loving relationships – for gay men it is all about sex
• Gay men are strong and sexually confident
• When two men have sex it must be consensual because gay men want sex all the time
• Gay men always have penetrative sex
• Men are physically strong and would not allow non-consensual sex to take place
• Men cannot be victims of sexual offences
• Homophobia and biphobia are no longer issues in society
• If two men are in a sexual relationship then they will always adopt heterosexual role models, one of them taking the dominant, "male" role and one taking the subservient "female" role – with all the gender stereotypes that implies
• All men who sell sex to other men are gay

Evidential Considerations​

1. Who is the victim?​

• What were the circumstances which prompted the complainant to place the matter in the public domain? It is known that many gay men are reluctant to report sexual abuse to anyone, particularly to the police. Reasons for reluctance to report include: fear of not being believed or not being taken seriously; mistrust of the criminal justice system; fear of encountering homophobia or transphobia from criminal justice agencies; fear of exposing a partner to homophobia or transphobia from criminal justice agencies; fear of being outed. This therefore gives rise to the question: what has happened to cause one of these parties (whether complainant or suspect) to involve the police?
• Victims of sexual abuse in gay male relationships may seek to protect the abuser – from homophobia and from the potential consequences of reporting such abuse.
• Internalised homophobia and transphobia can result in low self-esteem which encourages victims of abuse to blame themselves and/or consider that they do not deserve any better​.

2. Public Sex Environments​

There are a variety of places where some gay men may meet specifically for sex, either anonymously or to meet the same man or group of men, and there may be specific issues to consider in relation to such sites.

• Cruising Sites: there are some public areas in most towns and cities attended by men looking for sexual contacts with other men. These sites are likely also to be used by male sex workers and are sometimes used by men simply to socialise. It is extremely unusual for anyone frequenting such sites to report any criminal activity, as victims and witnesses may not wish to admit having been present; and victims may also fear that their presence could result in their own arrest and prosecution. This of course makes men using these sites particularly vulnerable to exploitation. It is not uncommon for men to be robbed after sex at cruising sites, or to hand over money for fear of being assaulted. Prosecutors will appreciate that men, including male sex workers, attending these sites are always entitled to refuse or to withdraw consent to any specific sexual activity.
• Saunas: there are some saunas which are known as places where men can meet for sex. These saunas provide a sexualised environment where men are undressed. They are also confined spaces where it might be difficult to get away. Again, attendance at such a sauna does not imply consent to all or any particular sexual contact; but again, most men who attend a sauna are unlikely to report any criminal incidents or to come forward as witnesses.
• Dark rooms: Some gay pubs and clubs have rooms designated as dark rooms where men engage in anonymous sexual activity. Men who deliberately enter such rooms may be looking for sexual contact but are entitled to refuse consent to any specific sexual activity. There may however be particular difficulties with identification.
• Online apps: there are a number of apps used by men to arrange to meet other men specifically for sex. Often the app is used to negotiate where to meet and what will happen. In those circumstances the consent is to what has been agreed, and not to all or any other sexual activity – and of course that consent may be withdrawn at any time. Arranging to meet at, or taking someone to, an unfamiliar place can give one party a degree of power, by making the other party particularly vulnerable.
• 'Chemsex' parties: Chemsex is the term used to describe sexual activity which occurs when participants are under the influence of drugs taken immediately preceding and/or during sexual activity. Chemsex parties involving large numbers of participants are often advertised via online apps. The drugs most commonly associated with chemsex are crystal methamphetamine (Class A), GHB/GBL (Class C) mephedrone (Class B), cocaine (Class A) and ketamine (Class C). All of these drugs with the exception of ketamine are stimulant drugs in that they typically increase heart rate and blood pressure and trigger feelings of euphoria, but crystal methamphetamine, GHB/GBL and mephedone also have a common effect of facilitating feelings of sexual arousal. These drugs are often taken in combination and are commonly associated with sexual sessions occurring over extended periods of time, sometimes involving significant numbers of sexual partners. There have been an increasing number of reports of rape and/or sexual assaults committed in chemsex settings including of men being deliberately overdosed so they can be raped by one or more men. Prosecutors will be familiar with guidance as to the impact of drug and alcohol use on capacity to consent. It is important to be aware that victims of rape and/or sexual assault committed in a chemsex setting may be reluctant to support a prosecution on account of fears that they will be prosecuted for drugs offences.​

3. Where does the power lie in the relationship or encounter?​

The VAWG agenda is based on the fact that in society, men are generally more powerful than women. In gay relationships, whilst the gender power imbalance will not apply, there are many other indicators of power. These will include issues such as social class, disability, race/ethnicity, faith, relative wealth etc. It may also include the length of time each party has been out and the extent to which they are out. This can impact on the power relationship in many ways, some of which are listed below. It is important not to fall into the trap of making assumptions about which party is the most powerful on the basis of physical appearance, or assumptions as to which one is "the man" in the relationship.

• Where one party has come to terms with their sexual orientation relatively recently, whereas the other has considerable experience of the gay community, there is an opportunity for the more experienced partner to persuade the other that various practices and behaviours are the way "real" gay men behave. For this reason, there will be instances where chronological age can be less relevant in assessing the power balance in a relationship.
• Social isolation – if one partner is new to the gay community (either generally or in a particular location) and is dependent on the other partner to make links with the community, then the more established partner can potentially isolate the other, making it very difficult for them to envisage separating
• Rural isolation can be a key issue for LGBT people. Lack of access to urban gay or trans communities can force people into inappropriate relationships and make it more difficult to leave abusive relationships; lack of independent transport when public transport is very limited can increase dependence and create a power imbalance; and concerns about being outed can be heightened.
• Small communities can also make it very difficult for one party to separate from an abusive partner – for example if both parties are involved in the same sports or social club or in neighbourhood community organisations. Being part of a small community makes it very difficult for anyone to report abuse by another member of the same community.
• The threat of "outing" – if there are elements of one party's life where they are not out, e.g. to parents/family, at work, or within their faith, ethnic or cultural community, then the threat of outing is a powerful tool in controlling that person.
• Power relationships can be used to control and silence a victim – in the same way as power can be used to exert coercive and controlling behaviour or to groom someone less powerful for sexual exploitation in a heterosexual situation.
• There have been instances of heterosexual men raping gay men as an expression of power. If the offence was motivated by hostility based on the victim's sexual orientation consideration should then be given as to whether there is sufficient evidence to support an application for a sentence uplift under the provisions of s.66 Sentencing Act 2020.

Victim and Witness Support considerations​

• Depending upon the extent to which either party is out it might be necessary to consider measures to protect their identity such as seeking reporting restrictions or seeking a direction that a party give their evidence in private. Victims and witnesses may need assurances about confidentiality, but will also need to be given a realistic idea of what can and cannot be kept confidential, and where the final decision lies.
• Victim anonymity – it is important to ensure that the victim fully understands their right to anonymity and that full consideration is given to the issue of anonymity if a decision is taken not to charge a sexual offence.

Sexual Violence between women

Myths and stereotypes​

• Women cannot be sexual abusers – of other adult women or of children
• Women are not sexually predatory
• Women are not capable of sexual exploitation
• Women are naturally safe and caring
• Women cannot be violent
• Lesbians are sexually attracted to all women
• Lesbians behave like men – all lesbians are butch
• All lesbians adopt gender roles – in a lesbian relationship one partner will adopt the male, "butch" role and one will adopt the female "femme" role (see note below)
• Butch women are always interested in sex; femme women have to be "wooed"
• The partner who appears the most butch must be the abuser
• The physically larger partner will be the abuser
• Lesbians never have casual relationships or one-night stands
• Women do not use dating apps
• Lesbians cannot be maternal

Note:​

Historically lesbians have been largely invisible, and until relatively recently there have been very few positive lesbian role models in popular culture. The most visible representation of lesbians has been in pornography aimed at heterosexual men. Assumptions should never be made about a woman's lifestyle, role in a relationship or the likelihood of a woman being an abuser based simply on dress or appearance.

Evidential Considerations​

1. Who is the victim?

What were the circumstances which prompted the complainant to place the matter in the public domain? The following factors, individually or in any combination, give rise to the question what has happened in this case to cause one of these parties (whether complainant or suspect) to involve the police?: 

• Women in same sex relationships may be extremely reluctant to label another woman as an abuser, and even more reluctant to involve the police. Reasons for reluctance to report include: fear of not being believed or not being taken seriously; mistrust of the criminal justice system; fear of encountering homophobia or transphobia from criminal justice agencies; fear of exposing a partner to homophobia or transphobia from criminal justice agencies; fear of being outed.
• Women very often blame themselves and believe that they should be helping an abusive partner rather than reporting them to the police.
• The commercial "gay scene" is usually male dominated, with fewer options for women to form social networks, and if a woman reports another woman to the police, particularly in relation to sexual abuse, she may well be ostracised by her community and risks losing her social networks and support. 
• Research confirms that victims of sexual abuse in lesbian relationships are likely to seek to protect the abuser – from homophobia and from the potential consequences of reporting such abuse.
• Internalised homophobia, transphobia and sexism can result in low self-esteem which encourages victims of abuse to blame themselves and/or consider that they do not deserve any better.​

2. Where does the power lie in the relationship or encounter?

The VAWG agenda is based on the fact that in society, men are generally more powerful than women. In lesbian relationships, whilst the gender power imbalance will not apply, there are many other indicators of power. These will include issues such as social class, disability, race/ethnicity, faith, relative wealth etc. It will also include the length of time each party has been out and the extent to which they are out. This can impact on the power relationship in many ways, some of which are listed below. It is important not to fall into the trap of making assumptions about which party is the most powerful on the basis of physical appearance, or assumptions as to which one is "the man" in the relationship.

• Where one party has come to terms with their sexual orientation relatively recently, whereas the other has considerable experience of the gay/lesbian community, there is an opportunity for the more experienced partner to persuade the other that various practices and behaviours are the way "real" lesbians behave. For this reason there will be instances where chronological age can be less relevant in assessing the power balance in a relationship.
• There is some evidence that some women deliberately target women who have only previously had sexual relationships with men and are therefore susceptible to false notions of what it means to be a lesbian
• Social isolation – if one partner is new to the gay/lesbian community (either generally or in a particular location) and is dependent on the other partner to make links with the community, then the more established partner can potentially isolate the other, making it very difficult for them to envisage separating
• Rural isolation can be a key issue for LGBT people. Lack of access to urban gay or trans communities can force people into inappropriate relationships and make it more difficult to leave abusive relationships; lack of independent transport when public transport is very limited can increase dependence and create a power imbalance; and concerns about being outed can be heightened.
• Small communities can also make it very difficult for one party to separate from an abusive partner – for example if both parties are involved in the same sports or social club or in neighbourhood community organisations. Being part of a small community makes it very difficult for anyone to report abuse by another member of the same community.
• It is not uncommon for women in prison to develop relationships with each other, on the basis that the relationship will last so long as both parties are in prison but will end upon release. This can result in abuse in a number of ways: for example if one partner wants the relationship to continue it can lead to ongoing harassment, or alternatively give one party considerable power; if one partner does not wish the relationship to be known to family and friends on the outside, this can give power to the other partner in threatening to make the relationship public.
• The threat of "outing" – if there are elements of one party's life where they are not out, e.g. to parents/family, at work, or within their faith, ethnic or cultural community, then the threat of outing is a powerful tool in controlling that person.
• Power relationships can be used to control and silence a victim – in the same way as power can be used to exert coercive and controlling behaviour or to groom someone less powerful for sexual exploitation in a heterosexual situation​.

3. What has taken place?

• Women sometimes struggle to find the language to describe non-consensual sex between women. If a woman does identify that she has been the victim of non-consensual sex and uses the word "rape" to describe this, then that is unusual and therefore has particular significance for, and emotional impact on the victim.
• Where a relationship develops quickly (not something which is peculiar to lesbian relationships) this can lead to social isolation, and inter-dependence (for example, living together, possibly in accommodation owned or rented in one name; opening joint bank accounts etc.). The erosion of independence can leave one partner susceptible to controlling and coercive behaviour, which may be presented by an abusive partner as "the norm". The lack of alternative information can make it very difficult for a victim to identify that she has been coerced into sexual activity, and to assert her right not to consent.
• Women may struggle to accept that they have been subjected to sexual assaults by another woman, and that consent under pressure or duress is not real consent. There may be circumstances where a charge of Controlling or Coercive Behaviour contrary to Section 76 Serious Crime Act 2015 could be considered alongside a sexual offence. See guidance here​. 

Victim and Witness Support Considerations​

• The extent to which either party is out – it might be necessary to consider measures to protect their identity – such as seeking reporting restrictions, seeking a direction that a party give their evidence in private.
• Confidentiality – victims and witnesses may need assurances about confidentiality, but will also need to be given a realistic idea of what can and cannot be kept confidential, and where the final decision lies.
• Victim anonymity – it is important to ensure that the victim fully understands their right to anonymity and that full consideration is given to the issue of anonymity if a decision is taken not to charge a sexual offence. 

Sexual violence involving bisexual victims

Myths and Stereotypes

• There is no such thing as bisexuality – people who identify as bisexual have not come to terms with being gay or lesbian
• Bisexuals can't make their minds up
• Bisexuals are promiscuous and have sex with everyone
• Bisexuals consent to sex with anyone
• Bisexuals are untrustworthy and lack credibility
• Bisexual people are more likely to consent to multiple partner sex​

Note:​

The fact that someone's last relationship was with someone of the opposite sex does not preclude the possibility that they are now in a relationship with someone of the same sex, or vice versa. Bisexuals are often not accepted in lesbian and gay communities, which can make the risk of social isolation all the greater, making them more vulnerable to sexual abuse.​

Just because someone is in a relationship with someone of a different gender, it should not be assumed that they are heterosexual. Likewise, someone in a relationship with someone of the same gender cannot be assumed to be lesbian or gay. Evidence suggests that bisexual people can be particularly vulnerable to targeted sexual violence from partners based on deep-rooted biphobic myths and stereotypes.

Evidential considerations​

1. Who is the victim?​

What were the circumstances which prompted the complainant to place the matter in the public domain? People who identify as bisexual encounter the myths and stereotypes listed above in both heterosexual society and in lesbian and gay communities. This can result in internalised biphobia, and in victim-blaming. Being outed as bisexual could result in being ostracised by both heterosexual and lesbian/gay social networks. These are amongst the reasons why reporting to the police is rare. This therefore gives rise to the question: what has happened to cause one of these parties (whether complainant or suspect) to involve the police?

2. Where does the power lie in the relationship or encounter?

• Power dynamics in a sexual relationship or encounter involving someone who identifies as bisexual can be very complex. Men and women who identify as bisexual can be particularly susceptible to the threat of being outed, to their parents/family, at work, within their faith, ethnic or cultural community, as well as within lesbian and gay communities, and possibly to their long term partner.
• Bisexual people encounter hostility based upon their sexual orientation from lesbian and gay communities and from heterosexual communities. Their bisexual identity can be used as an insult, and/or a tool to silence and control them. Where there is evidence of hostility based upon sexual orientation consideration should then be given as to whether there is sufficient evidence to support an application for a sentence uplift under the provisions of s.66 Sentencing Act 2020.
• Rural isolation can be a key issue for LGBT people. Lack of access to urban gay or trans communities can force people into inappropriate relationships and make it more difficult to leave abusive relationships; lack of independent transport when public transport is very limited can increase dependence and create a power imbalance; and concerns about being outed can be heightened.

Victim and Witness Support Considerations​

• The extent to which either party is out – it might be necessary to consider measures to protect their identity – such as seeking reporting restrictions, seeking a direction that a party give their evidence in private.
• Confidentiality – victims and witnesses may need assurances about confidentiality, but will also need to be given a realistic idea of what can and cannot be kept confidential, and where the final decision lies.
• Victim anonymity – it is important to ensure that the victim fully understands their right to anonymity in criminal proceedings and that full consideration is given to the issue of anonymity if a decision is taken not to charge a sexual offence.
• Bisexual victims may be particularly concerned about the possibility of their sexual history being aired in public and used against them; it is important to consider at an early stage how the prosecution will challenge attempts by the defence to evidence the complainant's sexual history.

Sexual Violence involving Trans victims

Note: Prosecutors are referred to the following policies and guidance:

• The Transgender Equality Management Guidance​
• CPS Legal Guidance on Conditional Consent contained within the Rape and Serious Sexual Offences Legal Guidance

Myths and Stereotypes​

• Trans people are always obvious
• Trans people have always had, or are intending to have, surgery - prosecutors are further referred to the Transgender Equality Management Guidance (TEMG) for further information, but should note that trans men in particular often do not have genital surgery as outcomes are often not good. The prospect, then, of intimate medical examination can deter reporting.
• Transvestites and transsexuals are the same thing (definitions of terms are contained in the TEMG)
• Trans women are men who want to deceive straight men into having sex. Such a suggestion is part of a wider transphobic myth that trans women are ‘dangerous’.

Evidential Considerations​

1. Who is the Victim?

• What were the circumstances which prompted the complainant to place the matter in the public domain? Trans people rarely report sexual (or any other) violence for a number of reasons, including: internalised transphobia leaving people with low self-esteem and a sense that they do not deserve better; fear of not being believed or not being taken seriously; mistrust of the criminal justice system; fear of encountering transphobia from criminal justice agencies; fear of being outed. This therefore gives rise to the question: what has happened to cause one of these parties (whether complainant or suspect) to involve the police?
• It is not uncommon for men who identify as heterosexual who engage in sexual activity with a trans woman to feel disgusted with themselves, and they may then react with violence towards the trans woman or to accuse her of rape. It is therefore important to examine the available evidence closely to consider the circumstances of the alleged offence, and the motivation of the complainant in making the complaint.
• Gay men who have sex with trans men can also become violent and aggressive, and sexual violence can occur as a result. A ‘trans panic’ defence is never acceptable and must always be challenged, whether used by a cis gay man against a trans man or a cis heterosexual man against a trans woman.
• Where there is evidence of hostility based upon transgender identity,then consideration should then be given as to whether there is sufficient evidence to support an application for a sentence uplift under the provisions of s.66 Sentencing Act 2020.

2. Refusal of medical examination

Trans complainants may be reluctant to engage with a medical examination. This may be because complainants who have not had surgery may not want others to see their bodies and victims who have had surgery may not want people to see their bodies due, for example, to embarrassment relating to scarring. The reluctance of a trans complainant to engage with a medical examination may also be based on a fear of receiving a transphobic reaction from forensic staff, the police and others which then questions or denies the trans person’s identity. A refusal to engage does not indicate that the account of the trans complainant is unreliable and prosecutors will need to consider how best to address this issue.

3. The bigger picture

• Sexual and/or physical violence directed at trans people from friends or family can reflect the culmination of a pattern of coercive and controlling behaviour.
• Trans people can be very isolated, with a very small pool of potential partners. This can increase the risk of sexual violence towards trans people, who may feel unable to leave abusive relationships.
• Where a trans person is abused by another trans person in the same small social group, it can be very difficult to report the abuse

4. Look for patterns of behaviour

Some people are known to seek out people in transition who are seen to be vulnerable. Similarly, there are a number of small trans social groups which have developed across the country without any formal constitution or any checks and balances, and which are sometimes used by trans people to groom others for sexual violence and abuse. Some people fetishise trans people and target them for sexual violence.

5. Is there any evidence of hostility based on transgender identity?

If so, the case should be flagged as a hate crime case, and evidence of hostility should inform the case strategy.​

Victim and witness support considerations

• Careful consideration will need to be given to protecting the identity of the victim, and some thought should be given to the extent to which the identity of a trans defendant can be protected. Disclosure of the transgender identity of either a victim or defendant can place them at risk of physical, emotional and/or psychological harm.
• Is there a Gender Recognition Certificate (GRC)? See the TEMG further on this point – but bear in mind that if someone has a GRC, then disclosing their history can be a criminal offence, and bear in mind CPS policy that trans victims and defendants should be treated as though they have a GRC in any event.
• It is important to establish how a victim, witness or defendant wishes to be addressed (i.e. name, title and pronoun) and always address them accordingly.
• The TEMG offers advice where a trans person transitions during the course of proceedings.
• Confidentiality – victims and witnesses may need assurances about confidentiality, but will also need to be given a realistic idea of what can and cannot be kept confidential, and where the final decision lies
• Victim anonymity – it is important to ensure that the victim fully understands their right to anonymity and that full consideration is given to the issue of anonymity if a decision is taken not to charge a sexual offence.

Acknowledgements:​

We are grateful to all those who have contributed to the development of this toolkit. We would particularly like to thank those listed below:

Caroline Airs, LGB&TI Policy Advisor for Civil Service Diversity & Inclusion

Rob Allen, CPS Policy and Strategy Directorate

Richard Bliss, Domestic Abuse Practitioner (Men and Boys), Northumberland Domestic Abuse Service

Dawn Bowman, Rape Crisis Tyneside and Northumberland

Professor Catherine Donovan, Sunderland University

Duncan Craig, Survivors Manchester

Lynne Hinde, former CEO of Rape Crisis Darlington

Jim Hope, CPS North East

Mary Hull, Former Development Worker for North East Domestic Abuse Project (developing services for victims of same sex DV)

Jan Lamping, DCCP, CPS North East

Laura McIntyre: Changing Lives, GAP Project (working with female sex workers) and MAP Project (working with male sex workers)

Gillian Milton, CPS North East

Katie Nicolson, CPS North East

Janet Owen: MESMAC North East

Sue Pearce: CEO Rape Crisis Tyneside and Northumberland

Alan Robertson, Independent Sexual Violence Advisor (ISVA) & Operations Manager Survivors UK

Emma Roebuck, Former CEO Gay Advice Darlington & Durham