Rape and Sexual Offences - Chapter 6: Consent

• Introduction
• Sexual Offences Act 2003
• Statutory definition of consent
• Reasonable belief in consent
• Intoxication and consent
• Consent and penetration as a continuing act
• Consent to serious harm for sexual gratification
• Consent in Child Sexual Exploitation cases
• Evidential presumptions (section 75 SOA 2003)
• Conclusive presumptions (section 76 SOA 2003)
• Freedom to consent in cases involving ‘conditional consent’
• Deception as to Sex

Introduction

Consent should be carefully considered when deciding not only what offence to charge but also whether it is in the public interest to prosecute. Sometimes consent is given, or appears to be given, that is ostensible consent, but it is not true consent in the particular context in which the offending has occurred, for example in cases where a young complainant has been groomed. It is important to make a distinction between consent and mere submission, acquiescence or compliance.

Toolkits on consent have been created to assist investigators, prosecutors and advocates when considering issues in relation to consent and evaluating the evidence in a case.

Prosecutors are advised to view ‘Consent in Sexual Cases' - which can be accessed via the Prosecution College.

Sexual Offences Act 2003

The Act sets out the offences requiring the prosecution to prove absence of consent at sections 1-4. They are:

• rape,
• assault by penetration,
• sexual assault, and
• causing a person to engage in sexual activity.

In relation to these offences, a person (A) is guilty of an offence if (s)he:

• Acts intentionally;
• (B) does not consent to the act;
• And (A) does not reasonably believe that B consents.

In relation to many other offences there is no requirement to prove an absence of consent. Only the act itself and the age of the victim/complainant or other criteria need to be proved. They include:

• Rape of a child under 13
• Assault by penetration of a child under 13
• Sexual assault of a child under 13
• Inciting or causing a person to engage in sexual activity with a child under 13
• Child sexual offences involving children under 16
• Children under 18 having sexual relations with persons in a position of trust
• Children under 18 involved with family members over 18
• Persons with a mental disorder impeding choice
• Persons with a mental disorder who are induced threatened or deceived
• Persons with a mental disorder who have sexual relations with care workers

Statutory definition of consent

Section 74 defines consent as “if he agrees by choice, and has the freedom and capacity to make that choice”. Prosecutors should consider this in two stages. They are:

• Whether a complainant had the capacity (that is the age and understanding) to make a choice about whether or not to take part in the sexual activity at the time in question.
• Whether he or she was in a position to make that choice freely, and was not constrained in any way.

Assuming that the complainant had both the freedom and capacity to consent, the crucial question is whether the complainant agrees to the activity by choice.

Prior to the 2003 Act there was no statutory definition of consent but the section 74 definition is commonly referred to in pre 2003 Act cases as a guide to how the jury should approach the issue of consent.

Reasonable belief in consent

Deciding whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents (subsection (2) of sections 1 - 4). It is likely that this will include a suspect’s attributes, such as disability or extreme youth, but not if (s)he has any particular fetishes.

The 2003 Act abolished the Morgan defence of a genuine though unreasonably mistaken belief as to the consent of the complainant. The defendant (A) has the responsibility to ensure that (B) consents to the sexual activity at the time in question. It will be important for the police to ask the suspect in interview what steps (s)he took to satisfy him or herself that the complainant consented in order to show his or her state of mind at the time.

The test of reasonable belief is a subjective test with an objective element. The best way of dealing with this issue is to ask two questions.

• Did the suspect genuinely believe the complainant consented? This relates to his or her personal capacity to evaluate consent (the subjective element of the test).
• If so, did the suspect reasonably believe it? It will be for the jury to decide if his or her belief was reasonable (the objective element).

There is no requirement to communicate lack of consent. In R v Malone [1998] 2 Cr App R 447, the Court of Appeal confirmed that the actus reus of rape imported no requirement that the complainant demonstrate or communicate to the defendant a lack of consent. What was required was some evidence to be put before the jury of lack of consent, and the nature of that evidence depended on the circumstances of the case. Such evidence may include that the complainant was incapable of consenting or knowing what was happening due to the influence of drink or drugs.

Intoxication and consent

The issue of capacity to consent is particularly relevant when a complainant is intoxicated by alcohol or affected by drugs. Prosecutors must be familiar with a number of key cases on this topic.

A complainant does not consent if they are incapacitated through drink. The prosecutor should consider carefully whether the complainant retains the capacity to consent R v Bree [2007] EWCA Crim 804 paragraph 34.

A complainant does not need to be unconscious through drink to lose their capacity to consent. Capacity to consent may evaporate before a complainant becomes unconscious. A prosecutor must consider the complainant’s state of mind at the time of the alleged assault. R v Bree paragraph 34.

Evidence of a lack of recollection of events cannot of itself be determinative of issues of consent and capacity.

Issues of consent and capacity to consent to intercourse in cases of alleged rape should normally be left to the jury to determine. R v Hysa [2007] EWCA Crim 2056.

See also R v Khamki [2013] EWCA 2335 for directions in relation to consent and intoxication and R v MA, PC and RS (unreported January 2015) for a useful summary of preceding cases.

Complainant’s absence of memory In R v Tambedou [2014] EWCA Crim 954 the Court of Appeal held that the complainant’s evidence that she could not remember was not sufficient for the judge to remove the case from the jury.

Relevance to consent issue of a provable lie told by the defendant regarding whether sexual intercourse took place. In R v Hysa [2007] EWCA Crim 2056, the Court of Appeal the jury is entitled when considering the issue of consent to bear in mind any lies, if that is what the jury find them to be, told by the defendant as to whether he had sex with the complainant on the night in question. If the jury decided he lied because he knew the complainant was too drunk to consent or knew that she in fact did not consent, that would undoubtedly help them in their task of assessing whether he raped her.

Consent and penetration as a continuing act

In accordance with Section 79 (2) Sexual Offences Act 2003 penetration is a continuing act from entry to withdrawal. Where the defendant lacks the mens rea for rape at the initial moment of penetration he might commit the offence of rape if he becomes aware of the complainant’s lack of consent at any point thereafter and does not at once desist and withdraw. See New Zealand Privy Council case of Kaitamaki v The Queen [1985] AC 147.

Consent to serious harm for sexual gratification

A person is unable to consent to the infliction of harm that results in ABH or other more serious injury, for the purposes of obtaining sexual gratification: s.71 Domestic Abuse Act 2021, which codifies the principle set out in the case of R v Brown [1993] 2 WLR 556.

Thus, a defendant will be unable to rely on a victim’s consent to the infliction of such harm as part of any so-called ‘rough sex’ defence, and will remain liable to prosecution for ABH or GBH. An exception remains, in relation to the transmission of sexually transmitted infections (STIs) where, in certain circumstances, a person may consent to the risk of acquiring an STI.

The law applies in all situations and is not limited to those which might also amount to incidents of domestic abuse.

Consent in Child Sexual Exploitation cases

In cases involving the alleged grooming of vulnerable complainants such as youths, apparent consent to sexual activity may not amount to consent in law. In these circumstances determining whether to select; consensual or non-consensual offences may be complex.

R v Ali and Ashraf [2015] EWCA Crim1279 is of considerable assistance when considering whether to charge non-consensual offences and used the important term “context is all important”. In this case, some guidance was given on how consent should be approached in cases of child sexual exploitation:

Whilst in many cases the complainant's evidence on the issue of consent may be determinative, there will be situations where he or she may have a limited or distorted appreciation or understanding of their role in sexual relations and the true nature of what occurred. In these situations, the prosecution is not obliged to call overt evidence from the alleged victim to the effect that he or she did not consent.

R v Malone (1998) 2 Cr. App. R. 447

One of the consequences when vulnerable people are groomed for sexual exploitation is that compliance can mask the lack of true consent. In such a case, a young and immature person may not understand the full significance of what he or she is doing. They may be placed in a position where they are led to acquiesce rather than give proper or real consent.

R v Robinson [2011] EWCA Crim 916 and R v Olugboja [1981] EWCA Crim 2

In a case where a vulnerable or immature individual has been groomed, the question of whether real or proper consent was given will usually be for the jury unless the evidence clearly indicates that proper consent was given. R v Hysa [2007] EWCA Crim 2056

When reviewing cases of child sexual exploitation, prosecutors must consider:

• The age and maturity of the complainant especially in relation to the suspect;
• The history of the relationship between complainant and suspect;
• The presence of any other vulnerability of the complainant such as a learning disability;
• The existence of grooming through the provision of gifts, alcohol, insincere compliments,  apparent security, a more exciting way of life, attention and false promises;
• The provision of alcohol and drugs and the effect on the complainant;
• The use and/or threat of violence and intimidation;
• The use of other means of control such as emotional or situation control.

There are a number of additional cases involving children where the issue of consent was considered.

In R v PK and TK [2008] EWCA Crim 434 the Court of Appeal considered the issue of whether true consent existed when a young homeless girl submitted to sexual intercourse in exchange for money to buy food. The question for the Court of Appeal was whether there was sufficient evidence to show a lack of consent. The Court reached the conclusion that in the context of this offence there was sufficient evidence. The court also considered and disapproved of the use of the phrase ‘willing submission’ to describe consent in these circumstances.

Not all grooming will vitiate consent. In R v Sean Robinson [2011] EWCA Crim 1916, the Court Appeal held that in circumstances where, due to immaturity, the complainant does not, or may not, have the capacity to understand the full significance of what she is doing, and in particular, where there is evidence of acceptance or acquiescence, then it would be open to the jury to infer she unwillingly went along with the acts, which she did not in fact wish to engage in. This judgment highlights aspects of the evidence in this case which, it was said, could be relied on to infer the acquiescence or acceptance of the complainant rather than positive consent.

In R v C [2012] EWCA Crim 2034 the Court of Appeal considered the situation where sexual abuse continued into adulthood. The Court of Appeal approved the approach taken by the prosecution. The prosecution put its case, not on the basis that the complainant had been groomed in relation to the offences committed whilst an adult, but rather on the basis that the evidence of prolonged grooming and potential corruption of the complainant when she was a child, provided the context in which, the evidence of her apparent consent, after she had grown up, should be examined and assessed.

Evidential presumptions (section 75 SOA 2003)

Section 75 lists the circumstances in which rebuttable evidential presumptions about the absence of consent apply. If the defendant did the relevant act, as defined in section 77 (the sexual activity within sections 1 - 4), and any of the circumstances specified in section 75(2) existed, and the defendant knew they existed, then: (i) the complainant is to be taken not to have consented and (ii) the Defendant is taken not to have reasonably believed that the complainant consented unless in either case, sufficient evidence is adduced to raise an issue as to the contrary.

The circumstances set out in section 75(2) are:

• Violence or fear of violence, subsection 2(a) and (b)
• Unlawful detention, subsection 2(c)
• Complainant asleep or unconscious, subsection 2(d)
• Complainant’s physical disability, subsection 2(e)
• Administering a substance 2(f)

The evidence raising an issue as to consent and the defendant’s reasonable belief in consent can derive from any source - from the defendant or the cross-examination of prosecution witnesses. Once it has been adduced, no direction under section 75 is then required – the jury decide the issues in respect of consent on the evidence, in the usual way.

Conclusive presumptions (section 76 SOA 2003)

Section 76 provides two conclusive presumptions that the complainant did not consent to the activity and the defendant did not reasonably believe that the complainant consented.

The prosecution must show that the defendant did the relevant act and that either of the circumstances in subsection 2 applies:

• The defendant intentionally deceived the complainant as to the “nature or the purpose of the act.” ( not the nature and quality of the act), or
• The defendant intentionally induced the complainant to consent by impersonation of a “person known personally to the complainant.”

The first presumption, has been considered in several cases:

• In R v Jheeta [2007] EWCA Crim 1699 where the defendant had deceived the complainant and pressured her into having sexual intercourse more frequently than she would have done otherwise, the conclusive presumption did not apply because there had been no deception as to the nature or purpose of sexual intercourse.
• The Court in R v Bingham [2013] EWCA Crim 823 held that section 76 was to be strictly construed and that it would be a rare case in which section 76 would be applied.

Freedom to consent in cases involving ‘conditional consent’

The statutory definition of consent in Section 74 was considered in a number of cases where ostensible consent was considered not to be true consent. The key cases in this area are:

• Julian Assange v Swedish Prosecution Authority [2011] EWHC 2849
• The Queen (on the app of F) v DPP [2013] EWHC 945 (Admin)
• R v Justine McNally [2013] EWCA Crim 1051

These are cases in which it is said that ostensible consent was not true consent, either:

• because of a material deception perpetrated on the complainant by the suspect (other than one which falls within section 76); or
• because the suspect failed to comply with a condition which the complainant imposed on the giving of his/her consent (which involves a deception by the suspect from the moment he/she made decision not to comply with the condition).

The High Court and the Court of Appeal considered the application of section 74 SOA 2003 in the cases highlighted above where ostensible consent was said to be vitiated. The judgments identified three sets of circumstances in which consent to sexual activity might be vitiated where the ‘condition’ was breached.

In each case the courts considered the sexual autonomy of the complainant and decided that the complainant did not consent to the sexual activity in the terms of section 74 of the 2003 Act, namely she did not agree by choice and have the freedom [and capacity] to make that choice.

The key points from these cases are:

• There must be ostensible consent at the relevant time, usually at penetration,
• There must be a deception, other than one which falls within section 76 of the Sexual Offences Act 2003, or a condition upon which the complainant agreed to the act,
• Prosecutors should avoid defining the “concept” of conditional consent by reference to the topic or subject matter of the condition or deception in question, as these cases are no more than examples of the need to apply all relevant context when deciding issues of free choice under section 74,
• A condition or deception is an important part of the context but not all of it. Whether consent was absent may well depend on other contexts,
• The evidence relating to “choice” and the “freedom” to make any particular choice must be approached in a broad common-sense way,” [Lord Judge CJ in F], and
• The imposition of conditions embodies personal sexual autonomy which section 74 was intended to provide. Their contextual importance derives, in part, from the fact they represent positive choices made by a participant to sexual acts about which another participant can be in no doubt.

Although the three cases cited above are said to give rise to the "developing concept of conditional consent" and are considered together in the guidance in this context, they do, in fact, concern different situations. Assange and F are cases where the complainant imposed a specific condition on the giving of her consent to the sexual acts. Those being, in Assange, that the offender should wear a condom throughout the act of intercourse and, in F that he would not ejaculate inside the vagina during the act of intercourse. McNally, on the other hand, concerned a deception perpetrated by the offender during the acts of penetration (and indeed for some considerable time before), namely that she was a man. Whereas Assange and F cases were concerned with an express condition, the case of McNally dealt with a material deception as to gender by the suspect, which was deemed to vitiate consent.

It is important to note that not every case will amount to rape where a condom is not worn even though there was a prior agreement to use one. Prosecutors must consider the overall context in which the offence is alleged to have taken place and the extent to which the actions of the defendant negate the freedom to choose of the complainant or their sexual autonomy. Similarly, every instance where the suspect ejaculates inside the vagina contrary to the wishes of the complainant will not necessarily vitiate consent.

In R v Lawrance (Jason) [2020] EWCA Crim 971, the Court of Appeal considered the circumstances in which deception was capable of vitiating ostensible consent in sexual offences. It clarifies two areas of law:

• Deception that can vitiate consent. Ostensible consent can be vitiated by deceptions that are closely connected to the nature or purpose of sexual intercourse. "Closely connected" will be interpreted narrowly. The deception must be related to the physical performance of the sexual act, rather than the broad circumstances surrounding it. A lie about wearing a condom is sufficiently closely connected because it physically changes the nature of penetration. In contrast, a lie about fertility is not, because it is not related to the performance of the sexual act.
• The manner of communication of the deception is irrelevant. In R v B [2006] EWCA Crim 2945, the Court of Appeal held the defendant's failure to disclose his HIV+ status was not capable of vitiating consent. In R v McNally, the Court of Appeal concluded that R v B left open whether an explicit lie might be capable of vitiating consent. This judgment resolves this ambiguity. It matters not whether the suspect deliberately withholds information or states an explicit untruth. The fundamental issue is whether the deception is sufficiently closely connected to the performance of the sexual act.

Deception as to sex

As with all cases, prosecutors must approach cases involving an alleged deception as to sex on the basis of the specific evidence and circumstances revealed by the police investigation.

However, the following information may assist by way of background for prosecutors to understand the context of such a case.

Although the words “sex” and “gender” may be used interchangeably, to refer to the state of being male or female, sex tends to refer to birth sex (sometimes referred to as “sex assigned at birth”) or legal recognition, while gender is commonly used to refer to social or cultural differences or the way in which someone is perceived or experiences themselves (commonly known as “gender identity”). This guidance uses the term “sex” to refer to birth sex and “gender” to refer to gender identity.

A person’s gender identity might be the same as their birth sex (sometimes referred to as “cisgender” but for clarity referred to in this guidance as “non-trans”) or different to their birth sex (transgender / trans or non-binary).

Deception as to birth sex may be relevant to the issue of whether consent to sexual activity was vitiated (negated). Cases in which deception as to birth sex is a live issue may involve either a suspect who is non-trans or a suspect who is trans or non-binary.

Although much of this guidance contains information on trans and non-binary suspects, this is because questions of deception and consent may involve more complex issues where the suspect is trans or non-binary. However, the guidance does not intend to suggest that most such offences are committed by trans or non-binary persons nor that trans and non-binary people are pre-dispositioned to be deceptive. In many cases, the suspect will be non-trans i.e. a woman purporting to be a man or vice versa.

Birth sex

Birth sex refers to the sex that is recorded or registered at the time of birth. This is identified by observation of the infant by a midwife, nurse or doctor or, in some instances, by clinical tests, before being recorded.

Intersex, or variations in sex characteristics (VSC), are individuals born with any of several sex characteristics that do not fit typical binary notions of male or female bodies but are assigned a male or female sex at birth. Their Intersex / VSC condition may present itself at birth or may only become apparent later in life, for example during puberty, depending on the condition. Intersex people may or may not see themselves as having a trans or non-binary gender identity.

Gender incongruence and gender dysphoria

“Gender incongruence” refers to an incongruence or incompatibility between a person’s gender identity and their birth sex. “Gender dysphoria” is a medical diagnosis recognised by the NHS, where a person experiences discomfort or distress, which is related to the incongruity between their birth sex and their gender identity (this is not to suggest that every trans person experiences discomfort or distress). The NHS offers treatment to alleviate the distress, such as counselling, hormone therapy or surgery. Although gender dysphoria is not a mental illness, the sense of unease or dissatisfaction associated with gender dysphoria may be so intense it can lead to depression and anxiety and have a harmful impact on daily life. Where there is evidence that a suspect or defendant is suffering from a mental health condition or disorder, prosecutors should refer to the CPS guidance on Mental Health: Suspects and Defendants.

Trans and non-binary persons – identities

We are aware that terminology and language used in relation to the recognition of people’s identity may depend on the context of its use. Some people may define some terms differently to us. We have tried to use terminology that is generally accepted. No offence or omission is intended.

Transgender or trans is an overarching term used to describe people who have a gender identity that is different to their sex. For example, a trans man is someone whose sex was recorded as female at birth but lives and identifies as a man; and a trans woman is someone whose sex was recorded as male at birth but lives and identifies as a woman.

Trans people may describe themselves using one or more of a wide variety of terms, including transgender, transsexual (even though many now consider this an outdated term), agender (without gender), gender fluid (fluctuating between genders or not having a fixed gender) and genderqueer (often associated with a rejection or subversion of conventional gender categories).

Non-binary people do not identify as a man or a woman but as both or neither. They may or may not consider themselves to be trans.

Gender identity is not the same as sexual orientation; trans people may consider themselves to be heterosexual, gay, lesbian, bisexual, pansexual, asexual or aromantic, amongst other sexual orientations.

Trans and non-binary persons - experiences

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 (see below), 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.
• Other trans persons may not openly identify as trans in everyday life, such as at home, at school or in the workplace, for fear of a family or relationship breakdown, losing employment, or exclusion from a close-knit community or a place of worship.
• Intersex / VSC persons may have particular difficulties in communicating their sex to potential sexual partners, as their gender/sex presentation is inherently complex. The language required may not be readily understood unless explained in detail, which they may consider inappropriate.

Gender Recognition Certificate

The Gender Recognition Act 2004 (GRA) provides individuals with the opportunity to be legally recognised in their affirmed gender identity by obtaining a Gender Recognition Certificate (GRC).

Under section 9 GRA, where a GRC is issued, if the acquired gender identity is that of a man the individual is legally male and, if it is that of a woman, the individual is legally female i.e. their legal sex is changed to that of their acquired gender for all purposes, except for a number of circumstances set out in the Act.

Many trans people do not obtain a GRC for various reasons, for example: persons under 18 and persons with gender identities outside the gender binary, including non-binary, are not eligible for a GRC; and some persons may not wish to obtain a medical diagnosis of gender dysphoria, a precondition for a GRC.

For these reasons, a trans or non-binary person’s gender identity should not be considered inauthentic if they have not obtained a certificate.

Although possession of a GRC is therefore unlikely to be relevant in most cases, where it may be a relevant evidential consideration, prosecutors should request information from the police.

Prosecutors should be aware that section 22 of the GRA makes it an offence for a person who has obtained “protected information” in an official capacity to disclose that information to any other person without the individual’s consent. Protected information is information about a person’s application for legal recognition of their affirmed gender or, if they have legal recognition, their history of transition. There are a number of exceptions to section 22 and prosecutors should ensure the information is used only in these contexts, where applicable:

• S.22 (4)(d): the disclosure is in accordance with an order of a court or tribunal
• S.22 (4)(e): the disclosure is for the purpose of instituting, or otherwise for the purposes of, proceedings before a court or tribunal
• S.22(4)(f): the disclosure is for the purpose of preventing or investigating crime.

Addressing trans persons - terminology

In accordance with the CPS Trans Equality Statement prosecutors should address trans victims, witnesses, suspects and defendants according to their affirmed gender and name, using that gender and related pronouns in all documentation and in the courtroom.

However, as recognised in chapter 12 of the Equal Treatment Bench Book, there may be occasions where a person’s sex or their history of transition is relevant to the particular legal proceedings and so may be disclosed. There will also be situations where it is appropriate for a witness (for example, a victim of sexual violence or assault by a trans person) to refer to a trans person by pronouns matching their birth sex. In cases where deception as to sex is a live issue such disclosure will clearly be necessary.

R v McNally

The Court of Appeal in McNally v R [2013] EWCA Crim 1051 determined that “depending on the circumstances, deception as to gender can vitiate consent” [27]. McNally was a teenage girl who impersonated a teenage boy when engaging in various forms of penetrative activity with the complainant, during four separate meetings.

Under section 74 Sexual Offences Act 2003 a person consents to the relevant sexual activity if they agree by choice, and have the freedom and capacity to make that choice. In McNally, the complainant’s consent was vitiated because she 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 appellant's deception [26].

Application of McNally to trans and non-binary suspects

The defendant in McNally was not trans or non-binary; she was female but presented as male. To date, there have been no cases considered by the appellate courts involving a trans or non-binary defendant that address this issue.

Although the court in McNally used the word “gender” with regard to the deception in question, it was probably referring to a deception as to sex, as there was no issue of “gender identity” in the case. However, as noted in R (Monica) v DPP (Boyling) [2018] EWHC 3508 (Admin) (see below), McNally could be analysed as an identity or impersonation case.

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.

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.

Although impersonation / deception as to identity is a potential separate line of authority, this guidance necessarily focuses on deception as to sex, on which McNally provides a clear line of authority, pending any further clarification from the appellate courts.

Other case law

In Monica the Divisional Court conducted an extensive review of the existing case law. In a judgement handed down by Burnett LCJ, the Court accepted that there was no defined list of circumstances which were capable of vitiating consent for the purposes of section 74. The correct approach was derived from the following cases:

• Assange v Sweden [2011] EWHC 2849 (Admin): “What may be derived from Assange is that 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” [72].
• In R (F) v DPP [2013] EWHC 945 (Admin) Judge LCJ stated that “What Assange underlines is that “choice” is crucial to the issue of “consent” ... The evidence relating to “choice” and the “freedom” to make any particular choice must be approached in a broad common-sense way” [26]. In respect of R (F) Burnett LCJ commented, “Although there was no deception as to the nature and purpose of the sexual act, the deception was closely connected with it.”
• McNally: Burnett LCJ commented, “it is clear that the court was holding that the deception … did relate to the sexual nature of this activity.” He also agreed that McNally could be analysed as an identity or impersonation case, “given the centrality of an individual’s sexuality to her or his identity” [77].

The subsequent case of R v Lawrance [2020] EWCA Crim 971 qualified McNally in relation to the type of deception that is capable of vitiating consent.

The court in McNally characterised the appellant’s actions as a deliberate deception [26], having noted a distinction in case law between a failure to disclose and deliberate deception, in particular in R v B [2006] EWCA Crim 2945 (where a failure to disclose HIV status did not vitiate consent).

However, in Lawrance (where it was held that deception as to fertility did not vitiate consent), in giving judgment Burnett LCJ stated: “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” [41]. The court also observed that: “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” [40].

From these authorities, the following principles emerge:

• For consent to be vitiated by a deception falling within section 74, the deception must be closely connected with the sexual act or the sexual nature of the activity rather than its consequences or the broader circumstances in which the sexual act takes place.
• Any novel circumstances must be considered by reference to the statutory definition, namely whether the alleged victim has agreed by choice and has the freedom and capacity to make that choice.
• Consent can be vitiated by an express deception or by a failure to disclose.
• Therefore, the test to be applied is whether a deception (however that deception is operated) is sufficiently closely connected to the performance of the sexual act that the complainant cannot be said to have made a free choice to participate in it.

Accordingly, the current principles to be applied in cases involving trans or non-binary suspects are:

• Depending upon the circumstances of the case, a trans or non-binary person (including those who have a GRC and / or have had gender reassignment) may deceive a complainant as to their sex if they choose not to disclose that they are trans / non-binary, or if they make a deliberate false assertion or lie in respect of their sex and / or gender identity.
• By reference to section 74, the test to be applied is whether the non-disclosure or representation is so closely connected with the sexual nature of the relevant act that it deprived the complainant of their freedom to choose whether to have sexual relations with the suspect.

Evidential considerations

The principles set out in this section apply to all cases, whether the suspect is non-trans, trans or non-binary.

The issues in a case involving an allegation of deception as to sex may vary. For example:

• A female non-trans suspect, who is alleged to have impersonated a male, may claim that the complainant was a lesbian who consented to have sex with her, knowing the suspect was female.
• A trans suspect may claim that they disclosed their gender identity and / or sex to the complainant, who disputes it.
• A non-trans or trans suspect may accept that there was no express disclosure but claim that the complainant must have known the suspect’s gender identity and / or sex, due to the suspect’s appearance and / or the nature of their relationship and communications.
• A non-trans or trans suspect may claim they reasonably believed that the complainant consented because the complainant attached no importance to the gender identity and / or sex of their sexual partners.

It may assist to consider the question of deception in three stages, even though these may overlap to various degrees, depending on the issues in the case:

1. Was there a condition of the complainant’s choice or consent sufficiently closely connected with the sexual nature of the relevant act to be capable of depriving the complainant of freedom to choose? If so, consider the second question.
2. Was the complainant deceived in relation to this condition and deprived of their freedom to choose, and therefore did not consent? If so, consider the third question.
3. Did the suspect reasonably believe the complainant consented?

1. Was there a condition of the complainant’s choice or consent sufficiently closely connected with the sexual nature of the relevant act?

The condition

Freedom of choice will involve the ability of the complainant to agree to sexual encounters based on what they see as important. Therefore, prosecutors will need to ascertain whether the suspect’s sex and / or gender identity was a matter of importance to the complainant i.e. was it a condition of the complainant’s choice or consent? This may be expressly stated or inferred from all the facts.

For instance, a female complainant may choose to have sexual relations with only one of the following persons, or a combination of any of them (this list is not exhaustive):

• A person whose sex is male and gender identity is male (a non-trans man).
• A person whose sex is female and gender identity is female (a non-trans woman).
• A person whose sex is male but lives and identifies as female (a trans woman).
• A person whose sex is female but lives and identifies as male (a trans man).
• A person whose sex is female but lives and identifies as male and has had an operation to create male genitalia (a trans man who has had gender reassignment surgery).

Closely connected with the sexual nature of the relevant act

The condition of importance to the complainant needs to be sufficiently closely connected with the sexual nature of the relevant act to be capable of depriving them of freedom to choose.

For instance, depending on the circumstances:

• If the complainant chose to have sexual relations with a person whose sex is male and gender identity is male i.e. a non-trans male, it is likely that this condition is sufficiently closely connected with the sexual nature of the relevant act.
• If the complainant asserts that they were prepared to have sexual relations with a trans person but only if they possessed a GRC, it is doubtful that such a condition is sufficiently closely connected with the sexual nature of the relevant act to be capable of depriving the complainant of freedom to choose, as it more likely relates to the broad circumstances surrounding it.

2. Was the complainant deceived in relation to this condition and deprived of their freedom to choose, and therefore did not consent?

Prosecutors should look for evidence relating to the complainant’s freedom of choice, and whether this was undermined.

Evidence that the suspect failed to disclose their sex and / or gender identity may be sufficient, depending on the circumstances of the case. But other evidence may be necessary.

The deception (whether by way of a lie, false assertion or failure to disclose) needs to relate to the condition of the complainant’s choice or consent. For example, if the complainant chose to have sexual relations with a trans man on condition that they had undergone gender reassignment, there may be a relevant deception if the trans man falsely asserts that he has had gender reassignment (or fails to disclose that he has not). Use of a prosthetic device of which the complainant is unaware would be further evidence of deceit of this nature.

There is no onus or responsibility on a complainant to confirm or discover the sex or gender identity of the suspect. What is relevant is the complainant’s actual knowledge or belief (or lack thereof) of the suspect’s sex and / or gender identity at the time of the alleged offending, rather than what the complainant might have discovered if they had made certain enquiries.

Even though there may be no disclosure or a false assertion or denial by the suspect, the complainant may nonetheless become aware of the sex and / or gender identity of the suspect, whether by way of shared experiences, communications, physical appearance and speech, or a combination of such factors.

The following factors may be relevant to these issues of deception and freedom to choose, together with any others identified on the facts of the case. Some factors clearly relate only to trans and non-binary suspects but most can be applied to all suspects:

• Whether the suspect targeted, manipulated or exploited the complainant, or exerted control or coercion during their relationship. This may result in the complainant being afraid to question or contradict the suspect, too willing to accept false assertions or denials, or fearful of losing love or affection. Where there is evidence of this nature, it is more likely that the suspect has deceived the complainant.
• The complainant’s particular characteristics and life experiences, and how these may have impacted on their relationship with the suspect and their understanding of the suspect’s gender identity or sex. For instance, a complainant who is young, immature, vulnerable, suffering from learning difficulties or neurological differences including autism, or inexperienced in sexual relationships, may more easily be deceived, especially where there is a disparity in age or maturity between the suspect and the complainant.
• An express false assertion or lie. This would include, for instance: a false assertion or lie relating to the suspect’s sex or history of transition; or a denial that the suspect is a trans man or a trans woman.
• Whether the suspect’s gender identity was different to their sex at the time of the alleged offence.
• Whether there has been gender reassignment treatment.
• The degree to which the sex or trans or non-binary identity of the suspect is apparent or otherwise.
• The attitude of the suspect to revealing their sex, including concerns over any potential adverse impacts.
• Use of a prosthetic device without the complainant being aware. The complainant’s inexperience in sexual relationships may be relevant to whether or not they were aware.
• The opinion of the complainant towards lesbian / gay / trans people etc (the specific sexual orientation or gender identity that is relevant will depend on the facts of the case) and the suspect’s knowledge of their opinion.
• The nature and power balance of the relationship.
• The length of the relationship. In particular, whether the amount and nature of the contact, including communications between the suspect and the complainant, is consistent with the complainant not knowing the suspect’s sex and / or gender identity and being deceived.
• The nature of and the circumstances in which the sexual act took place.
• Evidence that the complainant expressed doubts, asked questions, or made assertions relating to the suspect’s sex and / or gender identity, which may indicate that the complainant was aware or suspicious of the suspect’s sex and / or gender identity but nevertheless chose to consent to the sexual act. However, the weight to give such evidence, especially suspicion, would depend on all the circumstances of the case. For instance, the complainant may not wish to question the suspect too closely for fear of being seen as transphobic.
• Evidence that the complainant was exploring their own sexuality at the time of the alleged offending, if it is consistent with them being aware of the suspect’s sex and / or gender identity.

In addition to the issue of deception, prosecutors should consider whether there are any other factors that may affect the complainant’s capacity and freedom to consent, such as intoxication by alcohol or drugs.

3. Did the suspect reasonably believe that the complainant consented?

If a complainant is deceived and did not consent, the next stage is to consider whether the suspect reasonably believed in consent to sexual activity.

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.

When addressing this question, the following factors should be considered, together with any others relevant to the facts of the case:

• Many of the factors listed above at stage 2 may be relevant. For instance, even though the suspect fails to disclose their sex and / or gender identity they may reasonably believe the complainant consented due to: the degree to which the sex, trans or non-binary identity of the suspect is apparent; the opinion of the complainant towards lesbian / gay / trans people etc (depending on which is relevant to the case) and the suspect’s knowledge of their opinion; the length and nature of the relationship or their communications; the nature of and the circumstances in which the sexual act took place; evidence that the complainant expressed doubts, asked questions, or made assertions relating to the suspect’s sex and / or gender identity; evidence that the complainant was exploring their own sexuality.
• Where there is evidence of coercion, manipulation, or exploitation of the complainant, it is less likely that the suspect held a reasonable belief.
• Where there has been a deliberate deception by the suspect, it might be evidence that they know the matter is of importance to the complainant and a condition of consent. In these circumstances, it is less likely that the suspect held a reasonable belief.
• The suspect may admit that the complainant was unaware of their sex and / or gender identity but claim that they believed it was not a matter of importance to the complainant i.e. a condition of the complainant’s choice or consent. Whether the suspect has a reasonable belief that the complainant consented in these circumstances will depend on all the evidence.
• There may be circumstances where the suspect deceives the complainant initially but, because of the long passage of time between the initial deception and the sexual activity during which, for instance, the suspect and complainant meet and interact on numerous occasions, the suspect reasonably believes that the deception no longer operates on the complainant. Such circumstances may also be relevant where several sexual offences are alleged over a period of time.

Public Interest considerations

It has never been the rule that a prosecution will automatically take place once the evidential stage is met. A prosecution will usually take place unless the prosecutor is satisfied that there are public interest factors tending against prosecution which outweigh those tending in favour.

When considering the public interest stage of the Full Code Test, prosecutors must consider the questions set out at paragraph 4.14 of The Code for Crown Prosecutors (the Code).

Some considerations which may be relevant include:

• Seriousness: Sexual offending is by its nature serious. The prosecutor will assess seriousness on the specific facts of the case.
• Culpability: This will require an assessment of the suspect’s culpable acts and omissions and may consider whether the conduct was planned or involved exploitation, manipulation or grooming.
• Circumstances of and harm to the victim: This will consider relevant matters such as whether there was an abuse of trust and the relationship in general between suspect and victim.
• Suspect’s age and maturity: Prosecutors should consider the CPS guidance Children as Suspects and Defendants and chapter 13 (Sexual Offences and Youths) of the CPS Rape and Sexual Offences legal guidance.