‘Deception as to Gender’: A Review of Proposed Revisions to CPS Legal Guidance on Rape and Serious Sexual Offences

Abstract

This article considers recent proposed revisions to Crown Prosecution Service legal guidance on ‘Deception as to Gender’, that were put out for public consultation in September 2022. It does so against a backdrop of a series of sexual offence prosecutions brought against young LGBTQ people since 2012. These prosecutions, especially those brought against trans people, have been widely criticised. The article offers an assessment of the merits of the proposed revisions and their likely impact on prosecution decision-making, if implemented. The article will proceed as follows. Part 2 will provide some background context regarding prosecutions of this type. Part 3 will set out the current law pertaining to sexual fraud. Part 4 will provide a detailed analysis of the proposed revisions and will consider their likely impact on the practice of prosecution, if implemented. The article will argue that, while the proposed revisions strike a better balance between the interests of cis complainants and trans suspects charged with sexual offences, they continue, in important ways, to approach questions of evidence through hetero and cisnormative lenses to the detriment of trans and LGBQ suspects, and they provide a questionable pro-prosecution interpretation of legal doctrine concerning the proper scope of ‘deception as to gender’.

Introduction

This article considers recent proposed revisions to Crown Prosecution Service legal guidance on ‘Deception as to Gender’, ¹ that were put out for public consultation in September 2022. ² It does so against a backdrop of a series of sexual offence prosecutions brought against young LGBTQ people since 2012. ³ These prosecutions, especially those brought against trans people, have been widely criticised. ⁴ The article offers an assessment of the merits of the proposed revisions and their likely impact on prosecution decision-making, if implemented. The article will proceed as follows. Part 2 will provide some background context regarding prosecutions of this type. Part 3 will set out the current law pertaining to sexual fraud. Part 4 will provide a detailed analysis of the proposed revisions and will consider their likely impact on the practice of prosecution, if implemented. The article will argue that, while the proposed revisions strike a better balance between the interests of cis complainants and trans suspects charged with sexual offences, they continue, in important ways, to approach questions of evidence through hetero and cisnormative lenses to the detriment of trans and LGBQ suspects, and they provide a questionable pro-prosecution interpretation of legal doctrine concerning the proper scope of ‘deception as to gender’.

Background Context

Sexual offence prosecutions for deception as to gender have been brought almost exclusively against LGBTQ people. ⁵ Prior to 2012, there is only one such recorded prosecution. ⁶ Since 2012, there have been at least ten, ⁷ one of which, McNally, led to an important decision by the Court of Appeal to be considered below. All but one of the cases involved defendants who, irrespective of their present gender identity, were assigned female at birth, ⁸ and complainants who identify as cis ⁹ women and as having a heterosexual orientation. ¹⁰ Excepting the Xavier case, all complainants where young, white, ostensibly straight, women aged between 15 and 27, while the defendants were also young and (with one exception) white ¹¹ and aged between 17 and 32. While not all defendants identified as trans, Chris Wilson, Kyran Lee, Jason Staines, Carlos Delacruz and Tarjit Singh identified and lived as trans men for significant periods of time prior to the events leading to charge. All defendants were convicted and, with the exceptions of Kryan Lee and Chris Wilson, ¹² received custodial sentences of between twenty-four months and fifteen years. All were placed on the Sex Offenders Register, some for life. Moreover, at least some of these trans defendants appear to have been found deceptive on the basis of non-disclosure of gender history per se, an issue to be considered below.

Of further concern, in many of the prosecuted cases, prosecutors, courts, and juries appear to have suspended disbelief concerning complainant testimony to a quite extraordinary degree. For example, in the Newland case, the complainant, who claimed to believe Gayle Newland was a cis man, admitted having sex with Newland on a least ten occasions and spending over one hundred hours in her company. ¹³ She claimed to be unaware of the truth about Newland's cis lesbian identity due to a blindfold worn on all occasions at Newland's request. ¹⁴ This was despite the fact that Newland had long hair, a body with female contours and a smooth surface, and a voice falling within the female range. Moreover, the complainant became ‘best friends’ with Newland, as Gayle, while simultaneously conducting a boyfriend/girlfriend relationship with Newland, in the guise of Kye Fortune, Newland's Facebook avatar. The complainant, according to her own evidence, continued to see both her ‘best friend’, Gayle (Newland), and her boyfriend, Kye Fortune (Newland), on a regular basis and for a period of at least eighteen months without ever appreciating they were the same person.

In the earlier case of Barker, one of the complainants, who knew Barker previously as Gemma, claimed not to realise that she had been sexually intimate with Barker even though she had dated Barker in different ‘guises’ and under different pseudonyms. Thus after the termination of a sexually intimate relationship with Luke Jones (Barker) the complainant became sexually intimate with Connor McCormack (Barker) and at all times claimed to remain ignorant of the fact that Barker, Jones and McCormack were all one and the same person. ¹⁵ In the more recent case of Staines, the family of one of the complainants were adamant that the defendant, Jason Staines, was a woman, a claim which the complainant refused to countenance. ¹⁶ Of course, all of the complainants in these cases might have been ‘very gullible and naïve’, a concern emphasised in the proposed revisions. ¹⁷ And, of course, Newland, Barker and Staines were all convicted.

However, this fact should not distract us or the CPS from threshold questions regarding the credibility of evidence in making decisions regarding prosecution under the Code for Crown Prosecutors. ¹⁸ In wondering why complainant ‘gullibility’ and ‘naviety’ resonate so powerfully and consistently with prosecutors, courts and juries, we might ask: is it simply an effect of evidence or is it connected to the legal and cultural conceit that cis, ostensibly heterosexual, people would never, other than inadvertently, become sexually intimate with trans or LGB people? The latter view, while increasingly out of step with the way especially young people identify sexually, ¹⁹ appears central to understanding past prosecutions for deception as to gender and their legal resolution.

The Current Law of Sexual Fraud

In prosecuting cases of deception as to gender, as with all cases of sexual fraud, prosecutors must prove (a) the relevant sex acts took place, (b) there was deception of a type capable of vitiating consent as a matter of law, (c) such a deception operated on the complainant thereby vitiating her consent, and (d) the defendant lacked a reasonable belief in the complainant's consent. (a) is rarely disputed. (c) and (d) raise questions of evidence, ones we will consider in Part 4 as part of an analysis of the CPS proposed revisions. This section will focus on legal doctrine relating to (b) because (b) operates as a threshold issue in deciding whether to prosecute and in securing convictions. Legal doctrine in relation to (b) remains unclear in at least two ways that impact LGBQ and especially trans suspects. First, uncertainty exists regarding the proper scope of deception as to gender. Specifically, it remains unclear whether material deception under this subcategory of sexual fraud is confined to deception as to gender identity or extends to deception as to gender history. This issue is important because a trans person may deceive another regarding their gender history (or assigned sex at birth), but not their gender identity. Conversely, cases involving lesbians or gay men may involve deception as to gender identity. Second, there is uncertainty regarding whether conclusions of fact materiality are governed by an act/omission distinction. Before turning to these two specific doctrinal legal issues however, the article will say something about the general approach the courts have taken to the question of fact materiality.

As noted by the Court of Appeal in R v Lawrance, ‘the “but for” test is insufficient of itself to vitiate consent’. ²⁰ That is, consent is not vitiated simply because the complainant would not have become sexually intimate with the defendant had she known in advance facts she considers important. ²¹ Nor is the matter left to jury discretion. Rather, there are all kinds of lies that will not vitiate consent. These include lies about marital status, political or religious views, social status, employment and wealth ²² and likely also include lies about ethnicity, ²³ criminal offending history, and drug use. Indeed, there are, no doubt, numerous other examples that would likely fall foul of this initial threshold question. The reason the courts view such deceptions as non-material is that they have confined material deceptions to those they consider ‘closely connected to the nature or purpose of the sexual intercourse rather than the broad circumstances surrounding it’. ²⁴

This approach to determining whether deceptions should be considered legally material, one traceable to the nineteenth century case of Flattery, ²⁵ has received support in R v Linekar, ²⁶ Assange and Monica v DPP, ²⁷ and most recently in Lawrance. ²⁸ As the court in Monica stated, this governing principle ‘has never been applied to deceptions which are not closely connected to the performance of the sexual act’. ²⁹ In relation to deception as to gender, it seems clear that deception as to gender identity is considered material by the courts. ³⁰ Whether deception as to gender history also constitutes a material deception is less clear. Lawrance did not address this issue and Leveson LJ's judgment in McNally remains unclear on the point. In the key paragraph of his judgment, his Honour stated that ‘the sexual nature of the acts is, on any common sense view, different where the complainant is deliberately deceived into believing that the [perpetrator] is male’. ³¹ There are at least two ways of interpreting this statement. First, it might be argued that his honour was drawing a distinction between deception as to gender identity (material) and deception as to gender history (non-material). That is, McNally's deception perhaps lay in the fact that she was a girl who pretended to be a boy (deception as to gender identity). In contrast, Leveson LJ might have been willing to view a trans man who made no pretense about his gender identity, but who either lied about or failed to disclose his gender history, to have committed a non-material deception.

On this reading, Leveson LJ's use of the word ‘male’, and ‘male and female’ in the preceding sentence, are not to be equated with biological sex. Terms like male and female, man and woman, and sex and gender are often used interchangeably in law. ³² Moreover, trans men and women with Gender Recognition Certificates are respectively male and female in law ‘for all purposes’. ³³ Alternatively, the statement might be interpreted to mean that the use of the word ‘male’ indicates biological sex. This interpretation would mean that deception as to gender history, as well as deception as to gender identity, is considered legally material. Moreover, if deception can be committed by way of omission, a point we shall come to shortly, this would appear to mean non-disclosure of gender history per se would always constitute a material deception. While insisting that ‘[t]here is no duty to disclose gender history’, ³⁴ the CPS have interpreted McNally to mean that deception as to gender history might constitute a material deception. Thus, in their proposed revisions, they state that the following examples of deception might do so: ‘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’. ³⁵

Turning to the other important issue that impacts determinations of fact materiality, the CPS's view that non-disclosure per se cannot constitute a material deception is supported by the analyses adopted in a series of Court of Appeal decisions. Thus, a requirement that sex be preceded by active deception is evident in Latham LJ's analysis in R v EB:

As a matter of law, the fact that the appellant may not have disclosed his HIV status is not a matter which could in any way be relevant to the issue of consent under s 74 in relation to the sexual activity in this case. ³⁶

This approach appears to have met with approval in Assange ³⁷ and, more notably, by the Court of Appeal in McNally. In McNally, Leveson LJ made it very clear that, in his view, ‘there was no question of any deception’ on the facts of EB. Indeed, the Court of Appeal's upholding of McNally's conviction appears to rest precisely on the finding McNally had actively deceived the complainant. ³⁸ However, in Lawrance, the Court of Appeal expressed the view that material deceptions include both ‘express deception [and] failure to disclose.’ ³⁹ While the court did not provide examples, deliberate deception by way of omission can only conceivably arise in circumstances where it becomes clear that fact X is a dealbreaker because of things said or because of a question asked by a complainant. ⁴⁰ That is, a duty to disclose may arise where the dealbreaker status of fact X becomes apparent to a suspect through things said or questions asked by a complainant.

However, in contrast to judicial statements on the question of non-disclosure made in EB and McNally, Lord Burnett CJ's statement in Lawrance was obiter and therefore not binding on future courts. That is, the facts of Lawrance clearly involved active deception, namely, a false statement by the defendant that he had had a vasectomy. Moreover, if it was binding, a future Court of Appeal would have apparently contradictory decisions at the level of the Court of Appeal from which to choose. For the time being, this issue of whether non-disclosure per se keeps a suspect on the right side of the law, one so important for trans suspects, remains a moot point. However, it is significant that the CPS have made clear that omission per se will not ground prosecution, as even before Lawrance, there appear to have been prosecutions brought and convictions sustained on this basis. For example, in Singh, the judge stated that the defendant deceived the complainants ‘by not truly revealing [he] was born a biological female’. ⁴¹

An Analysis of CPS Proposed Revisions

According to the Code for Prosecutors, the CPS are only supposed to initiate prosecution in circumstances where they are ‘satisfied that there is sufficient evidence to provide a realistic prospect of conviction’. ⁴² To conclude that this test is met requires a conclusion that ‘an objective, impartial and reasonable jury … or judge … properly directed and acting in accordance with law, is more likely than not to convict the defendant of the charge alleged’. ⁴³ More specifically, prosecutors are directed to ‘consider whether there are any reasons to question the reliability of the evidence, including its accuracy or integrity’ and ‘whether there are any reasons to doubt the credibility of the evidence’. ⁴⁴ Further, the Code states that a case that does not meet these tests ‘must not proceed, no matter how serious or sensitive it may be’. ⁴⁵ Thus, while questions of evidence are factual ones for juries to determine, prosecutors are required to ensure, prior to bringing a prosecution, that there is sufficient evidence to provide a realistic prospect of conviction based on an objective and impartial assessment of the evidence. Bearing these obligations in mind, we turn to consideration of the proposed revisions.

The purpose of the proposed revisions is to update existing CPS guidance and provide prosecutors in England and Wales with clearer and more detailed information to assist them in making appropriate and consistent decisions when charging suspects with sexual offences on the basis of deception as to gender. This is necessary because the information currently provided to prosecutors is cursory and because it omits important considerations. Indeed, the current guidance draws prosecutors’ attention to (a limited set) of evidential considerations that address only whether there has been deception, and specifically: ‘how the suspect perceived 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’. ⁴⁶ Importantly, the current guidance is silent as to evidence concerning the legal questions of whether the complainant was deceived and whether the suspect had a reasonable belief in the complainant's consent. In addressing deception in more detail, as well as these other questions, the proposed revisions attempt to find an appropriate balance between the interests of cis complainants and trans suspects.

In analysing the proposed revisions, the article will consider whether they are likely to achieve their stated aims of ‘predictability, transparency and consistency’, ⁴⁷ whether they strike an appropriate balance in weighing the interests of cis complainants and trans suspects, and whether they are likely to lead to different prosecutorial decisions in the future. The proposed revisions adopt a three-step approach to deciding whether a prosecution is appropriate in a particular case. First, a prosecutor should ask herself whether a trans suspect has committed deliberate or active deception that pertains to a material fact? If the answer to this question is no, prosecution is clearly inappropriate. If the answer to this question is in the affirmative, the prosecutor should ask herself whether the deception operated on a cis complainant, thereby undermining her consent. This involves asking the counter factual question, would the complainant have consented had she known the suspect was trans?

If it is determined that the deception did not operate on the complainant, then again prosecution will be inappropriate. Finally, if a complainant is considered to have been deceived by an active or otherwise deliberate deception, then the prosecutor should ask herself whether the suspect had a reasonable belief that the complainant consented. In other words, all three questions must be answered in the affirmative if a prosecution is to be brought. In relation to each question, the proposed revisions detail evidential issues prosecutors should consider. The article will consider these evidential stages, and in the process identify some difficulties with them.

Evidential Stage 1: Has There Been Active or Deliberate Deception Pertaining to a Material Fact?

In relation to deliberate or active deception, the proposed revisions state: ‘[i]f 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’. ⁴⁸ In terms of evidence of self-perception, the proposed revisions identify two steps taken by a trans suspect that might assist a prosecutor:

Living consistent with their gender identity.

Acquiring a new legal or administrative gender recognition. ⁴⁹

The proposed revisions state that ‘prosecutors should request information as to whether a trans suspect possesses a Gender Recognition Certificate’ and that ‘[p]ossession 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’. ⁵⁰ However, it notes ‘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’. ⁵¹ All that can be gleaned from this statement is that a GRC is a factor in a trans suspect's favour, all things being equal. However, lack of one adds little to the weighing of evidence. This is as it should be given, as the proposed revisions note, ‘the vast majority of trans people do not obtain a GRC’. ⁵²

Many do not for a variety of reasons. These include expense, the cumbersome nature of the process, invasion of privacy, and a refusal to be pathologised. ⁵³ Indeed, undue emphasis on a GRC would be especially counter to the interests of justice given the relative youth of most trans people prosecuted so far. That is, and putting to one side the good reasons noted above why many eligible trans people do not currently apply for a GRC, those under 18 cannot apply ⁵⁴ and given the current requirement to live in gender role for at least two years before an application can be made, ⁵⁵ it is much less likely trans people with a GRC will fall within the age cohort so far prosecuted.

The proposed revisions then state: ‘[h]ow 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’. ⁵⁶

Inclusion of these matters in the weighing of evidence on the question of deception is to be welcomed. It is important to recognise gender identity and sexuality can be fluid/emergent, especially for young trans people. After all, we live in a cisnormative society where trans identities are hard won. It is important here to avoid equating fluidity or some degree of uncertainty about gender identity or sexuality with evidence of lack of veracity. Equally, the proposed revisions recognise that for some, especially young trans people, living openly and consistently as recognisibly trans is not a realistic option. A concern over ‘safety’ is rightly emphasised. Visibility might be precluded by difficulty in coming out at school, having transphobic/homophobic parents or other family members, or just lacking confidence outside certain times or locales.

Lastly, the proposed revisions draw attention to a scenario where a trans person ‘may revert to their sex assigned at birth when an allegation is made against them’. ⁵⁷ There may be many reasons for such a ‘reversion’, including as the proposed revisions note, pressure to conform to social norms. Indeed, this difficulty may have been in play in the case of Justine McNally. That is, criminal prosecution of the seventeen year old accompanied by ‘her’ monsterisation in the media may have played a part in ‘her’ reassertion of a female identity at plea and subsequent appeal. ⁵⁸

However, in developing guidance for prosecutors regarding evidential stage 1, the proposed revisions, as already noted, suggest the following examples might constitute deception under the McNally ruling: ‘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’. ⁵⁹ As already discussed, this might be viewed as adopting an unnecessarily pro-prosecution interpretation of Leveson LJ's judgment in McNally. That is, while Leveson LJ's analysis in McNally might be interpreted as confined to deception as to gender identity, the CPS scenarios clearly cover trans men and women who lie about their gender histories, and indeed, trans men and women who are in possession of a GRC. It is of concern that the proposed revisions adopt this stance given that the relevant portions of Leveson LJ's judgment are somewhat opaque and, as the proposed revisions note, ‘the courts have not addressed the point’. ⁶⁰

Evidential Stage 2: Was the Complainant Deceived and Therefore Did Not Consent?

In relation to determining the question of non-consent, the proposed revisions draw attention to the rulings in McNally and R (F) v DDP [2013] EWHC 945 (Admin) which emphasise the importance of ‘choice’, and that ‘evidence relating to “choice” and the “freedom” ⁶¹ to make any particular choice must be approached in a broad commonsense way’. ⁶² In contrast to evidential stage 1, stage 2 is necessarily complainant-centred. In my view, the proposed revisions at this stage achieve an appropriate balancing of interests. Thus, while they rightly require prosecutors to consider that a young complainant might be ‘immature, vulnerable and/or inexperienced in sexual relationships’, and therefore might ‘more easily be deceived … especially where there is a disparity in age or maturity between the suspect and the complainant’, they also require prosecutors to consider whether:

the complainant closed their eyes to the obvious or wilfully ignored aspects of the suspect's gender

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 gender and being deceived

there is any evidence the complainant was exploring their own sexuality at the time of the alleged offending. ⁶³

These considerations are necessary if evidence in these types of cases is to be weighed objectively. While convictions have been secured in nearly all cases of deception as to gender, ⁶⁴ defendants have pointed to the salience of the above factors. ⁶⁵ Indeed, given the duration of complainant/defendant relationships, and multiple occasions of sexual intimacy that were typical in most cases prosecuted, consideration of these factors appears to be especially important. Further, in thinking about whether the complainant was deceived, we should reflect on the assertion made as part of evidential stage 1, and considered above, namely, that a false statement by a trans man that his gender identity is the same as his birth gender/assigned biological sex, or a lie in response to a question about his gender history might constitute a material deception. My point here is not to reiterate how this claim might be viewed as exceeding Leveson LJ's judgment in McNally. Rather, my emphasis lies with the implications of asking such questions for how prosecutors might think about complainant knowledge. After all, the reality is that nobody asks these kinds of questions of sexual partners, a fact borne out by their complete absence in all of the cases prosecuted to date, and, if they did, it would serve to raise a question about complainant knowledge or at least suspicion. ⁶⁶ In this sense, such questions ought necessarily to draw prosecutors attention to the credibility of complainants’ claims that deceptions were operative.

The proposed revisions appear to respond to this problem through foregrounding, among other things, what Eve Sedgwick has described as the ‘psychological operations of shame, denial [and] projection’ that surround ‘ignorance’. ⁶⁷ They also recognise the possibility that a complainant might be exploring their sexuality and perhaps be unable, as yet, to come to terms with it. Certainly, some of the defendants in the cases successfully prosecuted have contended that these were the facts and complainants knew all along about their gender history. ⁶⁸ Some readers may feel uncomfortable about proposed revisions that call into question the credibility of complainant evidence. Some may think them tantamount to victim-blaming. Moreover, these aspects of the proposals might be considered to jar with the more general approach of the CPS toward consent, which places a much heavier focus on suspect-led investigation. However, and while I agree with this general approach, and particularly the need to dispel rape myths, ⁶⁹ greater scrutiny of complainant evidence is, in my view, appropriate in contexts of deception as to gender.

This is not only because intimacy is desired and directed to the person standing before the complainant, or because, in the case of a trans man, there is no relevant gap between the defendant's gender identity and the gender identity of the complainant's object of desire. It is also because attraction may be conditioned less by ignorance (a desire ‘in spite of’) and more by gender difference itself (a desire ‘because of’). As Judith Butler has suggested, gender ambiguity or dissonance can sometimes be central to, or constitutive of desire. ⁷⁰ For example, a complainant might desire a trans man precisely because of the way he performs masculinity, a performance that might differ markedly from a typical cis man. Thus, the gap between actual sex and desired sex may be even narrower than might be imagined. The purpose of prosecution should not be to protect people against regret or ambivalent feelings. Nor should it operate to shore up wilful blindness. Rather, and in furtherance of sexual autonomy, we should permit sex in uncertain or challenging circumstances to allow people to explore their sexuality.

Finally, it is important to say something about use of prosthetic devices. The proposed revisions do not address this issue. Yet, a (sometimes contested) claim of non-consensual use of such a device was a feature of nearly all prosecuted cases. It would be helpful if prosecutors, when deciding to prosecute cases involving use of a prosthetic device, made it clear prosecution is based on this fact and not on the basis of deception as to gender. It would also help if judges made the basis for conviction clearer in cases with such facts. However, perhaps more fundamentally, in cases where use of a prosthetic device is alleged, prosecutors might consider the (im)plausibility of claiming not to be able to distinguish between a prosthetic device (cold, hard, uniform in size, and sometimes vibrating) and an actual penis (warm, pulsating, contracting, dilating). Of course, if a prosthetic device is used by stealth, it is accepted that this is non-consensual and a deception ‘closely connected to the nature or purpose of the sexual intercourse’.

Evidential Stage 3: Did the Suspect Reasonably Believe the Complainant Consented?

Prosecutors must consider whether there is a reasonable prospect of establishing this element of adult sexual offences. The proposed revisions highlight that ‘an offender-centric approach should be adopted, and that the focus should be on the actions of the suspect before, during and after the alleged assault’. ⁷¹ While this makes sense, the proposed revisions then state: ‘[w]here 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’. ⁷² This fails, in my view, to grasp the potential complexity of trans motivations in such scenarios.

Thus, if a trans man suspect were asked by a cis woman complainant if he was trans or designated male at birth, and he lied, then, putting to one side the implausibility of the question, as well as the argument that such a lie ought not to be considered material for the purposes of establishing deception, it is far from clear that it is ‘likely’ he did not have a reasonable belief in consent. The view that it is likely assumes, implicitly, that he lied in order to become sexually intimate with a cis woman complainant. Yet, the lie may serve other more pressing purposes. In particular, trans suspects, especially young trans people, may feel the need to maintain privacy not only because of safety concerns associated with wider visibility, ⁷³ but because of the psychic and emotional impact of disclosure. This problematic assumption regarding trans suspect motivation reproduces the view that trans people need to lie in order to become sexually intimate with cis people and/or that cis people would not become sexually intimate with trans people if aware they are trans. It contributes to the idea that the truthful trans man/woman is a figure of self-loathing unable to imagine himself/herself as an object of cis desire, other than through practices of stealth. Such assumptions ought to have no place in determining whether a trans suspect reasonably believed the complainant consented.

Further, in some cases, young trans suspects, especially if in the early stages of gender transition, may believe the complainant consented because they hold a belief that they are unlikely to be read as cis. Indeed, many young (and not so young) trans people suffer anxiety around this issue. ⁷⁴ This consideration might be viewed as the flip side of the need to consider the possibility of ‘wilful ignorance’ on the part of the complainant which forms part of evidential stage 2. The proposed revisions also recognise the dynamic nature of sexual scenarios and that reasonableness might need to be gauged along an axis of time. Thus, they note: ‘there may be very limited circumstances where, despite the suspect deceiving the complainant, the defendant reasonably believes the complainant consents to the activity’. ⁷⁵ In shedding light on what such circumstances might look like, the proposed revisions provide the following scenario:

[T]he 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. ⁷⁶

While assessment of this scenario is rightly qualified by requiring prosecutors to ‘consider what steps the suspect has taken to satisfy themselves that the complainant consented’, ⁷⁷ the greater attention paid to the realities of relationship dynamics is to be welcomed. However, emphasis on ‘very limited circumstances’ suggests that a conclusion of reasonable belief will be exceptional. Yet, circumstances where a reasonable belief exists may be more commonplace.

Conclusion

This article considered recent proposed revisions to CPS legal guidance on ‘Deception as to Gender’. It situated the analysis against a backdrop in which prosecutions of this kind have been brought almost exclusively against LGBT and especially trans people. It then considered the law of sexual fraud and identified two doctrinal issues that remain legally unclear, ones that impact significantly on LGBTQ suspects. These are the questions of whether material deception as to gender is limited to deception as to gender identity or extends to deception as to gender history, and whether non-disclosure per se can constitute a material deception.

It noted that the CPS has interpreted the latter question so as to exclude non-disclosure per se from the ambit of material deception. While Lawrance supports the opposite conclusion, statements in Lawrance were obiter and at odds with the approach otherwise taken by the Court of Appeal. From a pro-prosecution point of view, the best that can be said on the point is that there is legal ambiguity. In the face of it, the CPS are right to foreground the liberty of the subject. In relation to the question of whether material deception as to gender is limited to deception as to gender identity or extends to deception as to gender history, the CPS appear to have interpreted McNally in a way that endorses the latter view, at least in some circumstances. In my view, it is arguable whether McNally should be construed in this way and it is unfortunate that the CPS have adopted this stance given legal ambiguity on the point. In addition to considering these two doctrinal questions, which in relation to the first involved an analysis of evidential stage 1, the article considered the proposed revisions in relation to the evidential considerations of operative deception (and therefore non-consent) (evidential stage 2) and reasonable belief in consent (evidential stage 3).

In relation to evidential stage 2, the proposed revisions were found to strike a better balance between the interests of cis complainants and trans suspects charged with sexual offences. In particular, and importantly, they foreground exploration of sexuality, wilful blindness, and the amount and nature of sexual activity between the parties when reviewing evidence about complainant consent. It is also welcome that they recognise the dangers of equating a retreat into a cisnormative closet with lack of veracity. That is, the CPS seem to have undertaken not to simply read off deception from gender flight. In these and in other ways, what might otherwise lead to an assumption of suspect deception calls for further inquiry and consideration. However, the article noted some significant difficulties. In particular, and in addition to the central concern regarding the proper scope of deception as to gender already noted, evidential stage 3 assumes a lack of reasonable belief in consent where there is deliberate deception. As explained, this fails to grasp a more complex picture concerning trans motivations for lying or misrepresentation. It is precisely failure to recognise considerations of this kind that serves to highlight the hetero and cisnormative lenses through which the CPS continue to think about at least some of the relevant issues.

Nevertheless, the proposed revisions introduce greater transparency to the decision-making process and they might, at least, play an incremental role in helping to shape prosecutorial decision-making in a way that recognises the complexity of trans experiences of gender and sexuality. While using the proposed revisions to predict future prosecution decision-making remains difficult given decisions will always remain fact-specific, it seems fair to say, the changes, if implemented, might swing the pendulum of rights balancing toward trans suspects, at least to some degree.