Deception as to Gender: proposed revision to CPS legal guidance on Rape and Serious Sexual Offences (RASSO), Chapter 6 - Consent

• Introduction
• Gender dysphoria
• Gender Recognition Act
• Evidential considerations
• Public Interest considerations

Introduction

Deception as to gender may be relevant to the issue of whether consent to sexual activity was vitiated. Cases in which deception as to gender is a live issue may involve a suspect whose gender identity differs from the sex they were assigned at birth.

Although the words “sex” and “gender” can both refer to the state of being male or female, “sex” tends to refer to biological differences, while “gender” tends to refer to social or cultural differences and the way in which an individual perceives themself. A person’s gender identity therefore may not match the sex they were assigned at birth.

However, in everyday use, sex and gender are often used interchangeably.

Gender dysphoria

“Gender dysphoria” or “gender incongruence” is a medical diagnosis recognised by the NHS, where a person experiences discomfort or distress because there is a mismatch between their sex assigned at birth and their gender identity. The NHS offers treatment to alleviate the distress, such as counselling, hormone therapy and surgery.

There are a range of gender identities, such as trans man (someone who was assigned female at birth but lives and identifies as male) trans woman (someone who was assigned male at birth but lives and identifies as female), as well as those who do not identify exclusively as male or female (non-binary).

“Trans” is an umbrella term to describe people whose gender is not the same as, or does not sit comfortably with, the sex they were assigned at birth. Trans people may describe themselves using one or more of a wide variety of terms, including (but not limited to) transgender, agender, gender fluid, non-binary and genderqueer.

There are no universally agreed definitions, the use of specific words can be contested, and it is therefore important that information is obtained to understand the preferred terminology of each individual.

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 2021, there may be occasions where it is necessary and relevant to the particular legal proceedings for a person’s gender at birth or their transgender history to be disclosed. In cases where deception as to gender is a live issue such disclosure will clearly be necessary. Prosecutors reviewing sexual offence cases involving trans people need to be aware of, and sensitive to, all the relevant circumstances. Prosecutors should avoid making assumptions and should ensure the police supply as much information as possible to properly inform their decision making and ensure that correct terminology is used for each individual.

Gender Recognition Act

The Gender Recognition Act 2004 (GRA) provides individuals with the opportunity to have their affirmed gender identity recognised in law. The GRA only offers legal recognition of male and female genders. It does not recognise gender identities outside the gender binary, including non-binary, and is not available to anyone under the age of 18. Under the GRA, trans men and women can:

• Obtain a Gender Recognition Certificate (GRC) to be legally recognised in their acquired gender.
• Obtain a new birth certificate, with an updated sex marker.
• Marry in their new gender.

To apply for a Gender Recognition Certificate, a person must be 18 or over and demonstrate that:

• They have or have had a medical diagnosis of gender dysphoria.
• They have lived in their acquired gender for the previous two years.
• They intend to live permanently in their acquired gender.

Note that under s9 GRA, where a GRC is issued, the person's gender becomes for all purposes the affirmed gender - so that, if the affirmed gender is the male gender, the individual is legally seen as male and, if it is the female gender, the individual is legally seen as female.

Prosecutors should request information as to whether a trans suspect possesses a GRC. However, a person’s gender identity is not dependent upon them obtaining or having a GRC, as a person may choose not to obtain one despite being eligible to do so. There is no provision for non-binary people to obtain a GRC that accurately reflects their gender identity. Therefore, a trans person’s gender identity should not be considered inauthentic if they have not obtained a certificate. Note also that persons under 18 cannot apply for a GRC and children under 17 cannot access adult gender dysphoria services or have surgical intervention on the NHS. In limited circumstances, under 18s may be prescribed puberty blockers (from the age of 12) or cross-sex hormones (from around the age of 16). Trans minors only receive such treatment whilst receiving psychological support.

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. Protected information is information about a person’s application for legal recognition of their affirmed gender or, if they have legal recognition, their gender history. There are a number of exceptions to section 22, which are 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.

Evidential considerations

The Court of Appeal in R v Justine McNally [2013] EWCA Crim 1051 determined that “depending on the circumstances, deception as to gender can vitiate consent” [27]. In McNally, the court characterised the appellant’s actions as a deliberate deception [26], rather than a failure to disclose, confirming that active deception as to gender falls within the scope of s74 of the sexual Offences Act 2003.

Whether the complainant has been deceived will require very careful examination of the evidence and consideration of all the surrounding circumstances. Prosecutors should ensure that they have sufficient material from the police in order to make this determination.

The question of deception can be considered in three stages:

1. Has there been active or deliberate deception by the suspect? If not, the deception will not fall within the scope of s74 of the Act and consent will not be vitiated. However, if there is a deliberate deception, consider the second question.
2. Was the complainant deceived and therefore did not consent? If so, consider the third question.
3. Did the suspect reasonably believe the complainant consented?

1: Has there been active or deliberate deception?

If a suspect genuinely perceives their gender identity to be different to their birth assigned sex or if their gender identity is in a state of flux and/or emerging, this may be evidence there was not a deliberate deception.  
The following type of evidence may assist to establish how the suspect perceived their identity:

• The steps the suspect has taken to live consistent with their gender identity.
• The steps the suspect has taken to acquire a new legal or administrative gender recognition.

Possession of a GRC proves that an individual has been legally recognised in their affirmed gender and is strong evidence to show that the individual is living in their affirmed gender. However, a person’s gender identity or affirmed gender is not dependent upon them obtaining a GRC and the vast majority of trans people do not obtain a GRC: see above.

How the suspect perceived their gender at the time of the offence can be a complex issue. The following matters should be borne in mind:

• Gender identity can be fluid and/or emergent for some persons, particularly young persons, who may explore the nature of their identity and/or sexuality.
• A person whose gender identity isn’t the same as their sex assigned at birth may express their gender through their speech, dress, gestures, mannerisms etc, without regarding this as a fabrication, a performance or a deception.
• Some trans people may not always be living in their true gender identity due to safety considerations.
• A person who presents as a particular gender at the time of the alleged offence may subsequently revert to their sex assigned at birth when an allegation is made against them. Any apparent reversion may be for numerous reasons including, but not limited to, pressure to conform to social norms.

On the facts of the case in McNally, the ruling that deception as to gender can vitiate consent applies to situations where a person falsely purports to be of a different gender (McNally was a girl who presented herself as a boy, using a male avatar “Scott” online). Although the courts have not addressed the point, the ruling would appear to be capable of applying broadly to include, for instance, deception as to birth gender/assigned biological sex, gender history or trans status. There is no duty to disclose gender history, but in some circumstances suspects who are living in a new gender identity at the time of the alleged offending (as opposed to falsely purporting to be a different gender), including those who have obtained a GRC, may still be capable of actively deceiving a complainant as to such matters relating to their gender. For example, where a suspect falsely asserts that their gender identity is the same as their birth gender/assigned biological sex; or lies in response to questions about their gender history; or denies being a trans man or a trans woman.

Prosecutors should adopt an offender-centric approach when assessing whether there has been an active or deliberate deception. This involves looking closely at the actions of the suspect before, during and after the alleged assault (see chapter 3 for more details). By analysing the suspect’s behaviour in this way, a prosecutor should fully understand the circumstances and context of the incident.

An offender-centric approach should also allow the prosecutor to determine whether the suspect targeted, manipulated or exploited the complainant, or exerted control or coercion during their relationship. Where there is evidence of this nature, it is more likely that the suspect has actively or deliberately deceived the complainant.

2: Was the complainant deceived and therefore did not consent?

The rulings in McNally [25] and R (F) v DPP [2013] EWHC 945 (Admin) emphasise that “choice” is crucial to the issue of “consent” and “the evidence relating to ‘choice’ and the ‘freedom’ to make any particular choice must be approached in a broad common sense way”.

Prosecutors should consider 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. For instance, a complainant who is young, immature, vulnerable or inexperienced in sexual relationships may more easily be deceived, and therefore lack the choice or freedom to consent, especially where there is a disparity in age or maturity between the suspect and the complainant.

When assessing the complainant’s account, the following non-exhaustive list of questions may also assist prosecutors, depending on the circumstances of the case:

• Has the complainant closed their eyes to the obvious or wilfully ignored aspects of the suspect’s gender? For instance, did the complainant have an opportunity to discover or confirm the gender of the suspect but chose not to avail themselves of the opportunity?
• Is the amount and nature of the contact, including communications between the suspect and the complainant, consistent with the complainant not knowing the suspect’s gender and being deceived?
• Is there any evidence that the complainant was exploring their own sexuality at the time of the alleged offending?
• 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, it is crucial to consider whether the suspect reasonably believed in consent to sexual activity. Again, an offender-centric approach should be adopted, and the focus should be on the actions of the suspect before, during and after the alleged assault.

When addressing this question, the following considerations may assist prosecutors:

Where there has been an active or deliberate deception by the suspect, it is likely that the suspect did not reasonably believe that the complainant consented.
Where there is evidence of coercion, manipulation, or exploitation of the complainant, it is less likely that the suspect held a reasonable belief.
However, there may be very limited circumstances where, despite the suspect deceiving the complainant, the defendant reasonably believes the complainant consents to the activity. For instance, the suspect may believe that the complainant is initially deceived as to the suspect’s gender but, because of the long passage of time between the initial deception and the sexual activity, during which the suspect and complainant meet and interact on numerous occasions, by the time the sexual activity takes place the suspect reasonably believes that the deception no longer operates on the complainant.
In such scenarios, prosecutors should examine very carefully the facts and circumstances of the suspect’s claim that they believed the complainant consented and, given that there has been a deception, consider what steps the suspect has taken to satisfy themselves that the complainant consented.

Public Interest considerations

When considering the public interest stage of the Full Code Test, in addition to considering the questions set out at paragraph 4.14 of The Code for Crown Prosecutors (the Code) prosecutors should consider the following factors:

Seriousness of the offence

A prosecution will usually be in the public interest where:

• The suspect exploits, coerces, threatens, manipulates or grooms the victim.
• There is an abuse of trust.

Other relevant factors to be considered include:

• The steps the suspect has taken to live consistent with their gender identity, including whether they have obtained or taken steps to obtain a GRC, depending on eligibility and context.
• What is the nature and level of the relevant sexual activity?
• What is the nature and duration of any relationship between the suspect and complainant? The longer the deception practiced on the victim, the more serious the offending.
• What are the relative ages and maturity of the suspect and complainant i.e. is there a significant disparity in age or maturity?

Age and maturity of the suspect

The younger the suspect, the less likely it is that a prosecution is required. Prosecutors should consider the suspect’s maturity, as well as their chronological age, as young adults will continue to mature into their mid-twenties.

Prosecutors must consider the interests of the young person when deciding whether it is in the public interest to prosecute: see paragraph 4.14.d of the Code, and chapter 13 (Sexual Offences and Youths) of the CPS Rape and Sexual Offences Legal Guidance.

Relevant factors to be considered when deciding whether to prosecute a young person for a sexual offence include:

• Whether the offender has been subjected to any exploitation, coercion, threat, deception, grooming or manipulation by another which has led them to commit the offence.
• The relative ages and maturity of the suspect and complainant.
• Whether the complainant entered into sexual activity willingly – consider whether the complainant understood the nature of their actions and whether they were able to communicate their willingness freely.
• Parity between the parties in regard to sexual, physical, emotional and educational development.
• The relationship between the parties, its nature and duration and whether this represents a genuine transitory phase of adolescent development.
• The nature of the activity. For example, penetrative or non-penetrative activity.
• The likely impact of any prosecution on the parties.

Out-of-Court Disposal

Where the suspect has made an admission, and has no previous such offending, prosecutors should consider whether an out-of-court disposal might take the place of a prosecution and provide an appropriate response to the offender and/or the seriousness and consequences of the offending.