Section 74 of the UK Sexual Offences Act 2003 defines consent to sexual acts as where “a person agrees by choice and has the freedom and capacity to make that choice”. Whilst the aims of this legislation were to ensure “coherent and clear sexual offences,” this is not the case. Rather, the courts’ interpretation of whether deception on the part of the defendant vitiates consent under s.74 is unclear and appears to differ between cisgender – those who identify as the gender they were assigned at birth- and transgender and gender non-conforming defendants.

The law states that consent given under s74 could be revoked in hindsight, where the accused deliberately deceives the complainant by failing to comply with a condition imposed when giving consent. For example, deliberately ignoring the condition that protection was used, or to withdraw prior to ejaculation, was capable of negating consent in the cases of Assange v Swedish Prosecution Authority and Re(F) v DPP. 

Uncertainty arises in cases concerning transgender and gender non-conforming individuals as the boundaries of the “deception principle” are blurred by the courts in case law. In the case of R v McNally, the court makes a distinction between non-disclosure, that would not undermine consent and “active deception” that would. The court held that the defendant “actively deceived” the complainant by impersonating a male. Despite consenting to the defendant performing oral activity and penetrating the complainant with their fingers, the court held that the complainant’s freedom to choose whether to have a sexual encounter with a girl was “removed by the deception,” undermining her consent. However, in the case of Monica, the court held that this deception involved non-disclosure of the defendant’s identity as an undercover police officer, rather than active deception. For this reason, it was seen to not closely relate to the performance of the act to negate consent. 

Clearly, the law is unclear as to when “identity deception” will negate consent. Both McNally and Monica involved identity deception; one involving gender and one, career. However, the court took the view that where transgender defendants fail to reveal their gender identity, they are “actively deceptive,” whereas other forms of identity deception are merely cases of non-disclosure. This begs the question of how failing to reveal their gender history makes defendants actively deceptive? In both cases, the complainant’s vowed that they would have never consented, had they known the “true identity” of the defendant. The sexual nature of the act is not different where a complainant is “actively deceived” of gender identity in McNally, as opposed to when a defendant fails to disclose something? In either instance, the act is performed, and it is that act that is consented to. It must be noted that the case of McNally only involved penetration with McNally’s fingers (digital) and oral sex and accordingly, does not concern the act of rape, only sexual assault. Therefore, digital and oral sex are the same act whether performed by a boy, girl, transgender, or gender non-conforming individual. The only difference being that this act is performed by someone who, as the courts word it, is “deceptive” of their true identity. In neither McNally, nor Monica, had the defendant deprived the complainant of a right to choose whether to engage in that sexual act or not. 

The courts have made it clear in the case of R v B that where the deception does not relate to the sexual act itself, the complainant has consented to sexual intercourse regardless. Only where conditional consent is given may this differ. However, it is difficult to see how McNally fits within these boundaries. No such conditional consent was given, and it is wrong of the courts to assume that the defendant see it reasonable to inform their sexual partner of their gender history to receive valid consent. Admittedly, the court in McNally stated that “active deception” in this case related to the penetrative act itself and so, was enough to remove consent. In this view, by impersonating a male, the defendant should have known that the complaint may wish to know their gender history before consenting to sexual activity. However, this detracts from the fact that the complainant consented to sexual intercourse with the person they saw in front of them. This article challenges the suggestion that an individual consenting to sexual acts with another has a right to know that person’s assigned sex at birth. This is as an old fashioned and discriminatory view. Requiring trans or gender non-conforming individuals to reveal their gender history to their partners to ensure that they would consent regardless, would undermine their right to private life. Rather, the judgment of McNally implies that this right to private life is subservient to the right of sexual autonomy of their heterosexual partner.  It is expected that many would agree that a similar judgment requiring defendants to disclose their racial or ethnic background, would immediately be regarded as discriminatory and morally deviant. But why, in an age where gender fluidity is commonplace, should cases of gender fraud be treated differently? 

This article submits that the law should not discriminate against transgender and gender non-conforming individuals. All cases of identity deception should be labelled as instances of non-disclosure, rather than differentiating based on gender identity. By reviewing the law of sexual offences in England and Wales, the Sexual Offences Act 2003 aimed to provide and ensure the “law is fair and non-discriminatory,” in line with the European Court of Human Rights and the Human Rights Act. But has this really been achieved in practice?

WHAT SHOULD THE LAW BE?

The approach of the law should be one that respects the autonomy of both transgender and gender non-conforming individuals, as well as cisgender defendants. Seemingly, the approach of the law is to assume that gender identity is fixed; where a defendant appears fluid in their gender, the law implies that they are deceptive and to be feared. From the perspective of transgender and gender non-conforming individuals, they are not deceiving anyone but expressing and living their gender identity, which may not be static but subject to change. This is particularly evident in the McNally case. Some, as Leveson LJ suggested in his judgment in the case, submit that there is a difference between trans-persons’ “gender history” and, as McNally was suggested to be, a confused child’s gender identity. However, these claims are unfounded. It is irrelevant that McNally readopted a female identity at the time of the hearings. It is the assertion of McNally’s male identity at the time of the sexual act that is important, as this is the point at which criminal liability occurs. And yet, it is important to note that after the subsequent appeals, McNally re-conformed to his previous male identity. This conforms to the conclusion that McNally is gender non-conforming, regardless of whether he/she identifies as transgender or not. Therefore, the experiences of gender-non-conforming people should not be invalidated simply because they view their gender as fluid, rather than adopting a clear-cut transgender or non-transgender identity.

Admittedly, if a defendant is deceitful, regardless of their gender identity, a breach of the complainant’s trust has nevertheless occurred. It is right for the law to state that where conditions of consent are expressly disclosed to the defendant and these conditions are purposefully breached, this will amount to active deception that is enough to vitiate consent. And yet, there was no such express condition in McNally. In McNally, it was only after the complainant found out the defendant’s gender history that she referred to this condition of consent in hindsight.  It undermines the trans and gender-non-conforming identity to suppose that their partner impliedly imposes gender as a condition of consent- with which defendants are obliged to disclose their gender history- without the partner expressly stating this condition. 

In cases that involve non-disclosure of identity, irrespective of gender, this article argues that a new lesser offence reflecting section 3 of the old Sexual Offences Act 1956 should be deployed. This stated that procuring sexual intercourse by false pretences of representation could carry a maximum sentence of two years. This would better reflect cases such as McNally and Monica that involve deception as to identity, but as argued, this deception does not change the sexual nature of the act itself to warrant vitiating consent to sexual activity. It has been submitted that the acts complained of in McNally would be performed the same way regardless of the defendant’s gender identity. If a complainant, upon their right to do so, expressly states that they would only consent to a person with specified characteristics, then consent should be vitiated if this condition is disregarded. Yet, as mentioned previously, would the attitudes of society and the courts upon this issue be different if a complainant specified that they would only consent to a person of a specified race? Nevertheless, if a complainant has given no such express condition, it cannot be implied. The absence of a condition specifying that a complainant would only consent to sexual activity with the person if they are aware of their gender history, by default, makes the “deception” no more significant to the issue of consent than an individual’s occupation, or other characteristics, as held in Monica. 

Ultimately, it is unfair to categorise sexual activity as not involving consent due to a misrepresentation of identity for the purposes of the SOA 2003. It must be stressed at this point that this article seeks to highlight the shortfalls of the McNally case in its interpretation of the SOA 2003. The law should treat heterosexual individuals the same as transgender and gender non-conforming individuals, in holding that all cases of identity deception are issues of non-disclosure, not enough to vitiate consent in hindsight. It is for this reason that this article submits that McNally was decided wrongly and a clearer, less discriminatory interpretation of SOA 2003 should be decided upon.

Lucy is a final year Law LLB student at Newcastle University, and an aspiring Barrister. She aims to raise awareness about human rights infringements within society, and promote the implementation of adequate legislative solutions.

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