Prosecutors publish updated ‘deception as to sex’ guidance
UPDATED prosecution guidance, which clarifies the law on when deceiving someone or failing to disclose birth sex could affect consent in rape cases, has been published today by the Crown Prosecution Service.
The new deception as to sex guidance has been updated to assist prosecutors in their decision making in this complex area of law.
The law, which our guidance reflects, states there is no difference between a deliberate deception about birth sex and a failure to disclose birth sex.
Central to the update, the guidance makes clear:
- In line with the law on consent – charges will depend on whether a victim was aware of the person’s birth sex and therefore consented to sexual activity by choice. The suspect must also have reasonably believed consent had been given.
- It also clarifies that a suspect may deceive a complainant as to their birth sex if they choose not to disclose their sex or trans identity. It also clarifies there is no expectation for a complainant to confirm the sex of the defendant prior to sexual activity.
- Not every situation where a trans or non-binary person fails to disclose their sex will involve a criminal offence – each will be assessed on a case-by-case basis.
Prosecutors are given guidance on the evidential considerations to be applied in these cases, including where the suspect is trans or non-binary, as well as relevant case law and an explanation of how a failure to disclose sex could remove consent.
Siobhan Blake, Chief Crown Prosecutor and national lead for rape and serious sexual offences, said: “We recognise this is a highly sensitive area of law – it is important our guidance provides prosecutors with the knowledge they need to make decisions in the rare cases where deception as to sex may have occurred.
“Importantly, this guidance also clarifies the law where suspects are non-trans such as females pretending to be male and vice versa.
“Every prosecutor has a duty to act with impartiality, each case is always assessed on its individual merits, so we make fair and objective decisions”
To enable prosecutors to make informed decisions, the updated guidance includes background information on trans and non-binary persons. There have also been revisions to the language used in the guidance, so it better reflects current social terminology.
The CPS has updated the title of the guidance to more accurately reflect that this part of the law is based on a person’s sex, rather than gender identity.
The new guidance forms part of our Rape and Sexual Offences prosecution guidance.
Notes to editors
- The updated prosecution guidance can be found in the Prosecution Guidance section of this website
- In Autumn 2022, the CPS held a public consultation on the draft prosecution guidance which was titled ‘deception as to gender” and received more than 400 responses. A summary of the responses to this consultation is published on this website
- The CPS Code for Crown Prosecutors includes the points below:
- 2.5 It is the duty of prosecutors to make sure that the right person is prosecuted for the right offence and to bring offenders to justice wherever possible. Casework decisions taken fairly, impartially and with integrity help to secure justice for victims, witnesses, suspects, defendants and the public. Prosecutors must ensure that the law is properly applied, that relevant evidence is put before the court and that obligations of disclosure are complied with.
- 2.7 When making decisions, prosecutors must be fair and objective. They must not let any personal views about the ethnic or national origin, gender, disability, age, religion or belief, sexual orientation or gender identity of the suspect, defendant, victim or any witness influence their decisions. Neither must they be motivated by political considerations. Prosecutors must always act in the interests of justice and not solely for the purpose of obtaining a conviction.