Sex Matters responds to CPS consultation

Sex Matters has responded to the Crown Prosecution Service’s public consultation on its proposed revision to the section on “deception as to gender” in its guidance on prosecuting rape and serious sexual offences.

In fact what the chapter should be called is “deception as to sex”.

The case law on this is clear. The leading case is that of R v Justine McNally [2013] – a young woman who deceived another young woman that she was a boy in order to get into a relationship, first online and then on meeting up and having sex (using a fake penis). The young woman who was deceived was therefore not able to consent and so was the victim of sexual assault. As the judgment stated:

“The sexual nature of the acts is, on any common sense view, different where the complainant is deliberately deceived by a defendant into believing that the latter is a male.”

Other cases where people have been convicted of having sex without consent through deception are similar. All of them concern girls or women who posed as boys or men, but the principles could also apply to men who posed or identified as women.

• R v Gemma Barker [2012] – Gemma Barker pleaded guilty to two counts of sexual assault on girls with whom she had sexual relationships under the pseudonyms Aaron Lampard, Connor McCormack and Luke Jones.
• R v Christine Wilson [2013] – Christine Wilson, who has a diagnosis of Gender Identity Disorder and was said to have been “living as a man”, had sex with two girls.
• R v Gayle Newland [2015] – Gayle Newland posed as a man in order to engage in a sexual relationship with her best friend.
• R v Kyran Lee (Mason) [2015] – Kyran Lee is reported as being a woman who identifies as a man and has done so consistently since “he was at least fifteen”. The LGBT Foundation states: “Kyran had changed his name legally, been accepted into a Gender Identity Clinic treatment programme, and undertaken some gender reassignment surgery at the time of the incident.”
• R v Jennifer Staines [2016] – Jennifer Staines, 23, used the name “Jason” on social media to contact three girls, two of whom were aged between 12 and 17. After one victim’s mother raised concerns, police found Staines had used a rubber penis and condoms during some assaults.

Organisations such as the LGBT Foundation, Gendered Intelligence and Mermaids and academics such as Alex Sharpe have argued that assault or rape via deception as to sex should not be treated as a crime but as a response to “cisnormative privilege and power, through which ontologies and epistemologies are constituted”. Stonewall in 2015 argued that the law on sex by deception should be “based on gender” and should “ensure trans people’s privacy is protected”. In 2015 the LGBT Foundation issued a statement arguing that:

“Trans bodies are varied and the assumption that all men have penises and all women have vaginas is not only transphobic, but legally inaccurate. These convictions set a concerning legal precedent, that trans bodies can be considered, fraudulent, illegitimate and not ‘real’.”

In 2017 Cliniq, a social enterprise that provides health services to trans-identified people, published Cruising: a trans guy’s guide to the gay sex scene, funded by Public Health England. This booklet told young trans-identifying females to explore the “whole new world of gay sex, hook-up apps, barebacking cultures, scenes and sex parties”, and stated that “deciding if and when to tell people you are trans can be tricky. Some guys might not tell their sex partners”.

If they follow the advice of Stonewall, the LGBT Foundation and Cliniq, trans-identifying people risk becoming perpetrators of sex by deception.

The CPS’s proposed guidance reflects these arguments rather than following the law. It makes statements that undermine consent and promote deception as to sex, through both confusing sex and gender identity and assuming that sex is something that can be kept secret (perhaps because of having a Gender Recognition Certificate):

“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.”

It states that:

“Whether there has been ‘deception as to gender’ will require very careful consideration of all the surrounding circumstances including:

• How the suspect perceives his/her gender;
• What steps, if any, he/she has taken to live as his/her chosen identity; and
• What steps, if any, he/she has taken to acquire a new gender status.”

But a further chapter in the same document covering issues relevant to particular groups of people states that gender identity is completely subjective:

“Gender identity is what you know your gender to be and can only be decided by the individual for themselves… Trans people are those who know their gender to be different to that which they were assigned at birth.”

Cases where a person succeeds in deceiving someone, in person, that they are actually the opposite sex are likely to continue to be rare. However, it is important to make clear the principle that sexual consent and boundaries in relation to biological sex are legitimate, and protect everyone.

Institutional deception and coercion about a person’s sex can turn ordinary situations such as changing rooms, showers, body searches and intimate medical examinations into situations that enable sexual assault, voyeurism and exposure.

It is easier to convincingly pose as a member of the opposite sex when online rather than person. Several of the existing sex-by-deception cases start with online contacts. Male sex offenders have been known to use female identities online to engage with potential victims for the purposes of grooming.

In our response to the consultation we argue for a clear approach:

• The guidance should be headed “deception as to sex”, and it should be redrafted using clear language about sex throughout.
• The guidance should make clear that everyone has a basic obligation to be honest about what sex they are with their sexual partners.
• Nothing in the Gender Recognition Act or the Equality Act provides a person with the right to deceive another person about their sex in order to fraudulently secure consent for any act of a sexual nature.
• The guidance should be clear that a Gender Recognition Certificate does not confer a right to deceive people in relation to consent to engage in sexual activities.

The CPS should also tackle its own institutional culture, which produced this document and promoted the idea that statements regarding a person’s sex are “transphobic” or “hate speech”.

The right response is not necessarily a large increase in individual prosecutions, but rather clear and consistent communication on consent and the meaning of “sex” by the CPS, police, education authorities and voluntary sector.

Organisations that do not understand consent should not be working In schools. It should be made clear to young people who are exploring their gender identity that adopting a transgender identity does not give them licence to lie about their sex or to override other people’s consent. Furthermore, they should be taught the facts about sexual orientation: namely that it is related to sex, not to gender identity.