Consultation on the Deception as to Gender section in the Rape and Serious Sexual Offences (RASSO) legal guidance
Owing to the volume of responses (> 400) and the complexity of the subject matter of this consultation, further time was needed to analyse the responses received for this consultation and to prepare the CPS response. After the consultation was published, we removed the UK Government’s definitions of “sex” and “gender” from the consultation document. This is because it came to our attention that the Office for National Statistics (ONS) added a guidance note to the article from which the definition was taken, which stated that: “The government definitions of ‘sex’ and ‘gender’ included in this article are not current and do not reflect a current cross-government agreed position. They are only intended for use within the Sustainable Development Goals (SDGs) context.” Accordingly, we did not think it appropriate to continue to rely on these definitions. |
The CPS regularly reviews and updates our legal guidance to ensure it supports our prosecutors. A review of the RASSO guidance identified that further direction could be provided in the deception as to gender section, to assist prosecutors with understanding the law in this complex area. Adherence to these guidelines will ensure that there is a predictability, transparency and consistency of decision making across the CPS.
As part of the drafting process the CPS conducted a pre-consultation with interested groups. A first draft of the guidance was provided to these groups and feedback was provided in writing and during workshops. The feedback was considered, and revisions were made.
Background
The Sexual Offences Act 2003 (the Act) came into force on 1 May 2004. Section 74 of the Act defines consent as follows: “for the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice”.
Since the Act came into force the Court of Appeal has considered the interpretation of section 74 in a number of cases. In the case of R v Justine McNally [2013] EWCA Crim 1051 the Court determined that “depending on the circumstances, deception as to gender can vitiate consent”.
Our legal guidance is an important aspect of our work and provides support to our prosecutors to make effective decisions which are compliant with the Code for Crown Prosecutors in all cases, thereby helping to ensure the delivery of justice. Crown Prosecutors to whom the decision-making function is delegated need to be given the clearest possible guidance about the legal test that they must apply when making charging decisions or reviewing cases. The police, who apply the Code when exercising an important discretion as to whether to bring a case to the attention of the Crown Prosecutors for a charging decision, also need guidance to ensure a fair and consistent approach to these difficult and sensitive cases.
After the consultation closing date, we considered every individual response received. A summary of the consultation responses and the final version of the revised guidance have been published on the CPS website in accordance with the Government's guidelines.
Consultation content
The consultation sought views on the following questions:
Question 1: Do you think that the language used is appropriate and sensitive to the issues addressed? If not, please identify concerns and share how it can be improved.
Question 2: When considering the factors that are relevant to prove deception and lack of consent, does the guidance strike the right balance between recognising the rights of trans persons to live fully in their new gender identity and the need not to put an undue onus on complainants to discover or confirm the gender status of the suspect?
Question 3: Do you agree with the evidential considerations that prosecutors must consider? If not, please identify what should be added, removed, or amended.
Question 4: Do you agree with the three stages that should be considered when prosecutors are considering the question of deception as to gender?
Question 5: Do you agree with the public interest factors that are listed?
Question 6: Are there any further factors in favour of prosecution that should be included?
Question 7: Are there any further factors tending against prosecution that should be included?
Question 8: Do you have any other feedback you wish to share around how the revised guidance could be improved?
Outcomes
The CPS received over 400 responses to this consultation.
We have given careful consideration to all of the responses and we have made significant revisions to the final version of the guidance, which has now been placed in chapter 6 (Consent) of the CPS Rape and Serious Sexual Offences guidance.
A comprehensive summary of the responses to each question, including our comments on these, is contained in the Summary of Consultation Responses. This Summary also explains the changes that we have made to the guidance as a result of the consultation. The key changes are:
- The guidance is now titled “Deception as to sex” instead of “Deception as to gender”
- We have clarified that in many cases the suspect will be non-trans ie a woman purporting to be a man or vice versa. However, the principles in the guidance apply to all cases of deception as to sex, whether the suspect is non-trans, trans or non-binary.
- There are a number of revisions to the language in the guidance, to align with recommendations from the Government’s Office for Equality and Opportunity. This includes explanations of some words and concepts, such as “gender identity”, “gender dysphoria” and “birth sex”
- We have provided more background information on trans and non-binary persons, to assist prosecutors to make more informed decisions
- The section on the Gender Recognition Certificate (GRC) explains that since many trans persons do not obtain a GRC, and non-binary persons and those under 18 years old are not eligible for a GRC, possession of a GRC is unlikely to be of relevance in most cases
- There is a new section on McNally and the case law on conditional consent, including the case of Lawrance. This section clarifies that consent may be negated by an express deception or by a failure to disclose. It also explains the application of McNally and Lawrance to trans and non-binary suspects, including the test to be applied in cases of deception as to sex
- We have made extensive revisions to the section on Evidential considerations. These include:
- The three stages regarding the question of deception have been modified and the first stage has been amended so that it focuses on the condition of the complainant’s choice
- We have provided examples of the types of issues that may arise in cases
- Examples are provided to help explain possible conditions of the complainant’s choice and whether a condition may be sufficiently closely connected with the sexual nature of the relevant act to be capable of depriving the complainant of freedom to choose
- We have clarified that there is no onus or responsibility on a complainant to confirm or discover the sex or gender identity of the suspect
- There are substantial revisions to the factors to consider in relation to whether the complainant was deceived (stage 2).
- The section on Public interest considerations has been revised to focus on the key public interest questions at paragraph 4.14 of the Code.