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

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

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.

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.