Article · PNLD


Consent - Deception as to Sex in Rape and Sexual Offences Written by: Zoe McDonald, PNLD Legal Adviser Not reviewed after the date of publication - 25 April 2025 In December 2024, following a public consultation, the Crown Prosecution Service (CPS) updated its prosecution guidance in relation to Rape and Sexual Offences (RASSO), specifically Chapter 6: Consent, the section on Deception as to Gender. In this article, PNLD Legal Adviser Zoe McDonald, outlines the law and the new guidance which aims to assist prosecutors in their decision making in this complex area of law. The updated guidance clarifies the law on when deceiving someone or failing to disclose birth sex could affect consent in serious sexual offence cases. The Law Section 74 of the Sexual Offences Act 2003 (the Act) defines ‘consent’ for the purposes of Part 1 of the Act (sections 1-79). It states that – ‘…a person consents if he agrees by choice and has the freedom and capacity to make that choice.’ The Act attempts to clarify the concept of consent above in sections 75 and 76. Section 75 of the Act provides for ‘evidential presumptions’ about consent – in other words, it provides circumstances where there is no need to prove a lack of consent on the part of the victim. Evidential presumptions occur under this Act where the defendant did the relevant act (e.g. rape), certain circumstances existed, and the defendant knew that those circumstances existed. The relevant circumstances for the purposes of the above are listed in subsection 75(2). The list is very physical in that it includes using violence against the victim, threats of violence, unlawfully detaining the victim, administering substances to the victim without their consent, and where the victim is otherwise asleep, unconscious or due to a disability, unable to communicate their consent. In any of the circumstances above, it can be ‘presumed’ that the victim did not have the ‘freedom’ or the ‘capacity’ to give their consent. Further, section 76 of the Act creates ‘conclusive presumptions’ about consent. These presumptions cannot be rebutted by the defendant as the lack of consent and the absence of belief in consent was due to the defendant ‘deceiving’ the victim into sexual activity. Section 76 states that ‘it is to be conclusively presumed’ that the victim did not consent or that the defendant did not believe that the victim consented where – the defendant intentionally deceived the victim as to the nature or purpose of the act; or the defendant intentionally induced the complainant to consent to the act by impersonating a person known personally to the complainant. It is here that deceiving someone or failing to disclose birth sex may lead to a conclusive presumption that the victim did not freely consent. The case of R v McNally 2013 is the leading case in this area. In that case the Court of Appeal held that depending on the circumstances, deception as to gender could vitiate consent to sexual activity. Therefore, a girl who engaged in sexual activity with another girl, while claiming to be a boy, was held to be guilty of assault by penetration. However, the judgment in McNally dates back to a time when reference to a person’s ‘gender’ was commonly understood to be a reference to their sex (as the terms were often used interchangeably) and therefore, although the court used the word ‘gender’, it was clearly referring to biological sex. CPS guidance Applying the above legislation and case law in relation to trans and non-binary persons has highlighted complex and sensitive issues. This has, in some cases, led to inconsistencies in approach and decision making by prosecutors. The public consultation into the proposed revision of Chapter 6 of the CPS guidance on Rape and Sexual Offences (RASSO) returned responses that were complex and beyond the scope of this article to discuss fully. To enable prosecutors to make informed decisions, the updated guidance includes background information on trans and non-binary persons. There have also been revisions to the language used in the guidance, so it better reflects current social terminology. The update to the guidance now makes the following clear: The guidance is now titled ‘Deception as to sex’ instead of ‘Deception as to gender’. The guidance also now uses the term ‘sex’ to refer to birth sex and ‘gender’ to refer to gender identity. Although much of this guidance contains information on trans and non-binary suspects, this is because questions of deception and consent may involve more complex issues where the suspect is trans or non-binary. However, the guidance does not intend to suggest that most such offences are committed by trans or non-binary persons, nor that trans and non-binary people are pre-dispositioned to be deceptive. In many cases, the suspect will be non-trans i.e. a woman purporting to be a man or vice versa. In line with the law on consent, charges will depend on whether the victim was aware of the person’s birth sex and therefore consented to sexual activity by choice. The suspect must also have reasonably believed consent had been given. It also clarifies that a suspect may deceive a complainant as to their birth sex if they choose not to disclose their sex or trans identity. Furthermore, there is no expectation for a complainant to confirm the sex of the defendant prior to sexual activity. Not every situation where a trans or non-binary person fails to disclose their sex will involve a criminal offence – each will be assessed on a case-by-case basis. Evidential considerations The principles in the guidance apply to all cases of deception as to sex, whether the suspect is non-trans, trans or non-binary. The issues in a case involving an allegation of deception as to sex may vary. For example: A female non-trans suspect, who is alleged to have impersonated a male, may claim that the complainant was a lesbian who consented to have sex with her, knowing the suspect was female. A trans suspect may claim that they disclosed their gender identity and / or sex to the complainant, who disputes it. A non-trans or trans suspect may accept that there was no express disclosure but claim that the complainant must have known the suspect’s gender identity and / or sex, due to the suspect’s appearance and / or the nature of their relationship and communications. A non-trans or trans suspect may claim they reasonably believed that the complainant consented because the complainant attached no importance to the gender identity and / or sex of their sexual partners. The guidance suggests that it may assist prosecutors to consider the question of deception in three stages, even though these may overlap to various degrees, depending on the issues in the case. Those stages are set out as questions below: 1. Was there a condition of the complainant’s choice or consent sufficiently closely connected with the sexual nature of the relevant act to be capable of depriving the complainant of their freedom to choose? If so, consider the second question. The condition Freedom of choice will involve the ability of the complainant to agree to sexual encounters based on what they see as important. Therefore, prosecutors will need to ascertain whether the suspect’s sex and / or gender identity was a matter of importance to the complainant i.e. was it a condition of the complainant’s choice or consent? This may be expressly stated or inferred from all the facts. Closely connected with the sexual nature of the relevant act The condition of importance to the complainant needs to be sufficiently closely connected with the sexual nature of the relevant act to be capable of depriving them of their freedom to choose. For example, if the complainant chose to have sexual relations with a person whose sex is male and gender identity is male i.e. a non-trans male, it is likely that this condition is sufficiently closely connected with the sexual nature of the relevant act. If the complainant asserts that they were prepared to have sexual relations with a trans person but only if they possessed a Gender Recognition Certificate, it is doubtful that such a condition is sufficiently closely connected with the sexual nature of the relevant act to be capable of depriving the complainant of their freedom to choose, as it more likely relates to the broad circumstances surrounding it. 2. Was the complainant deceived in relation to this condition and deprived of their freedom to choose, and therefore did not consent? If so, consider the third question. The deception (whether by way of a lie, false assertion or failure to disclose) needs to relate to the condition of the complainant’s choice or consent. The following factors may be relevant to the issues of deception and freedom to choose, together with any others identified on the facts of the case. We have reproduced a selection of these factors below; the full list may be found in the guidance. Some factors clearly relate only to trans and non-binary suspects, but most can be applied to all suspects: Whether the suspect targeted, manipulated or exploited the complainant, or exerted control or coercion during their relationship. The complainant’s particular characteristics and life experiences. The degree to which the sex, or trans or non-binary identity of the suspect is apparent or otherwise. The attitude of the suspect to revealing their sex, including concerns over any potential adverse impacts. Use of a prosthetic device without the complainant being aware. The nature and power balance of the relationship. The length of the relationship. The nature of and the circumstances in which the sexual act took place. Evidence that the complainant expressed doubts, asked questions, or made assertions relating to the suspect’s sex and / or gender identity. 3. Did the suspect reasonably believe the complainant consented? If a complainant is deceived and did not consent, the next stage is to consider whether the suspect reasonably believed that they consented to sexual activity. Prosecutors should examine the facts and circumstances of the suspect’s claim and consider what steps the suspect has taken to satisfy themselves that the complainant was aware of their gender identity and / or sex and that they consented to the sexual act. When addressing this question, the (non-exhaustive) list of factors below should be considered, together with any others relevant to the facts of the case: Many of the factors listed above at stage 2 may be relevant. For instance, even though the suspect fails to disclose their sex and / or gender identity they may reasonably believe the complainant consented due to the degree to which the sex, trans or non-binary identity of the suspect is apparent or the nature of and the circumstances in which the sexual act took place. Where there is evidence of coercion, manipulation, or exploitation of the complainant, it is less likely that the suspect held a reasonable belief. There may be circumstances where the suspect deceives the complainant initially but, because of the long passage of time between the initial deception and the sexual activity, during which for instance, the suspect and complainant meet and interact on numerous occasions, the suspect reasonably believes that the deception no longer operates on the complainant. Such circumstances may also be relevant where several sexual offences are alleged over a period of time. Public interest considerations A prosecution will not automatically take place once the evidential stage is met. However, a prosecution will usually take place unless the prosecutor is satisfied that there are public interest factors tending against prosecution, which outweigh those tending in favour. When considering the public interest stage of the Full Code Test, prosecutors must consider the questions set out at paragraph 4.14 of the Code for Crown Prosecutors. Some considerations which may be relevant include: Seriousness: Sexual offending is by its nature serious. The prosecutor will assess seriousness on the specific facts of the case. Culpability: This will require an assessment of the suspect’s culpable acts and omissions and may consider whether the conduct was planned or involved exploitation, manipulation or grooming. Circumstances of and harm to the victim: This will consider relevant matters such as whether there was an abuse of trust, and the relationship in general between suspect and victim. Suspect’s age and maturity: Prosecutors should consider the CPS guidance Children as Suspects and Defendants and Chapter 13 (Sexual Offences and Youths) of the CPS Rape and Sexual Offences guidance. A final word CPS guidance aims to support prosecutors to make effective decisions which are compliant with the Code for Crown Prosecutors in all cases, thereby helping to ensure the delivery of justice. It will also be essential for the police, who apply the Code when exercising the important discretion as to whether to bring a case to the attention of the Crown Prosecutors for a charging decision. The above updated guidance hopes to ensure a fair and consistent approach to these difficult and sensitive cases. Want more of this type of content? Check out our range of legal articles here. For quick and easy access in the future, click the pin icon from the top right of any document to save it to 'My Documents'.

Consent - Deception as to Sex in Rape and Sexual Offences

Written by: Zoe McDonald, PNLD Legal Adviser

Not reviewed after the date of publication - 25 April 2025

In December 2024, following a public consultation, the Crown Prosecution Service (CPS) updated its prosecution guidance in relation to Rape and Sexual Offences (RASSO), specifically Chapter 6: Consent, the section on Deception as to Gender.

In this article, PNLD Legal Adviser Zoe McDonald, outlines the law and the new guidance which aims to assist prosecutors in their decision making in this complex area of law. The updated guidance clarifies the law on when deceiving someone or failing to disclose birth sex could affect consent in serious sexual offence cases.

The Law

Section 74 of the Sexual Offences Act 2003 (the Act) defines ‘consent’ for the purposes of Part 1 of the Act (sections 1-79). It states that –

‘…a person consents if he agrees by choice and has the freedom and capacity to make that choice.’

The Act attempts to clarify the concept of consent above in sections 75 and 76.

Section 75 of the Act provides for ‘evidential presumptions’ about consent – in other words, it provides circumstances where there is no need to prove a lack of consent on the part of the victim. Evidential presumptions occur under this Act where the defendant did the relevant act (e.g. rape), certain circumstances existed, and the defendant knew that those circumstances existed.

The relevant circumstances for the purposes of the above are listed in subsection 75(2). The list is very physical in that it includes using violence against the victim, threats of violence, unlawfully detaining the victim, administering substances to the victim without their consent, and where the victim is otherwise asleep, unconscious or due to a disability, unable to communicate their consent.

In any of the circumstances above, it can be ‘presumed’ that the victim did not have the ‘freedom’ or the ‘capacity’ to give their consent.

Further, section 76 of the Act creates ‘conclusive presumptions’ about consent. These presumptions cannot be rebutted by the defendant as the lack of consent and the absence of belief in consent was due to the defendant ‘deceiving’ the victim into sexual activity.

Section 76 states that ‘it is to be conclusively presumed’ that the victim did not consent or that the defendant did not believe that the victim consented where –

the defendant intentionally deceived the victim as to the nature or purpose of the act; or
the defendant intentionally induced the complainant to consent to the act by impersonating a person known personally to the complainant.

It is here that deceiving someone or failing to disclose birth sex may lead to a conclusive presumption that the victim did not freely consent. The case of R v McNally 2013 is the leading case in this area. In that case the Court of Appeal held that depending on the circumstances, deception as to gender could vitiate consent to sexual activity. Therefore, a girl who engaged in sexual activity with another girl, while claiming to be a boy, was held to be guilty of assault by penetration.

However, the judgment in McNally dates back to a time when reference to a person’s ‘gender’ was commonly understood to be a reference to their sex (as the terms were often used interchangeably) and therefore, although the court used the word ‘gender’, it was clearly referring to biological sex.

CPS guidance

Applying the above legislation and case law in relation to trans and non-binary persons has highlighted complex and sensitive issues. This has, in some cases, led to inconsistencies in approach and decision making by prosecutors.

The public consultation into the proposed revision of Chapter 6 of the CPS guidance on Rape and Sexual Offences (RASSO) returned responses that were complex and beyond the scope of this article to discuss fully. To enable prosecutors to make informed decisions, the updated guidance includes background information on trans and non-binary persons. There have also been revisions to the language used in the guidance, so it better reflects current social terminology. The update to the guidance now makes the following clear:

The guidance is now titled ‘Deception as to sex’ instead of ‘Deception as to gender’. The guidance also now uses the term ‘sex’ to refer to birth sex and ‘gender’ to refer to gender identity.
Although much of this guidance contains information on trans and non-binary suspects, this is because questions of deception and consent may involve more complex issues where the suspect is trans or non-binary. However, the guidance does not intend to suggest that most such offences are committed by trans or non-binary persons, nor that trans and non-binary people are pre-dispositioned to be deceptive. In many cases, the suspect will be non-trans i.e. a woman purporting to be a man or vice versa.
In line with the law on consent, charges will depend on whether the victim was aware of the person’s birth sex and therefore consented to sexual activity by choice. The suspect must also have reasonably believed consent had been given.
It also clarifies that a suspect may deceive a complainant as to their birth sex if they choose not to disclose their sex or trans identity. Furthermore, there is no expectation for a complainant to confirm the sex of the defendant prior to sexual activity.
Not every situation where a trans or non-binary person fails to disclose their sex will involve a criminal offence – each will be assessed on a case-by-case basis.

Evidential considerations

The principles in the guidance apply to all cases of deception as to sex, whether the suspect is non-trans, trans or non-binary. The issues in a case involving an allegation of deception as to sex may vary. For example:

A female non-trans suspect, who is alleged to have impersonated a male, may claim that the complainant was a lesbian who consented to have sex with her, knowing the suspect was female.
A trans suspect may claim that they disclosed their gender identity and / or sex to the complainant, who disputes it.
A non-trans or trans suspect may accept that there was no express disclosure but claim that the complainant must have known the suspect’s gender identity and / or sex, due to the suspect’s appearance and / or the nature of their relationship and communications.
A non-trans or trans suspect may claim they reasonably believed that the complainant consented because the complainant attached no importance to the gender identity and / or sex of their sexual partners.

The guidance suggests that it may assist prosecutors to consider the question of deception in three stages, even though these may overlap to various degrees, depending on the issues in the case. Those stages are set out as questions below:

1. Was there a condition of the complainant’s choice or consent sufficiently closely connected with the sexual nature of the relevant act to be capable of depriving the complainant of their freedom to choose? If so, consider the second question.

The condition

Freedom of choice will involve the ability of the complainant to agree to sexual encounters based on what they see as important. Therefore, prosecutors will need to ascertain whether the suspect’s sex and / or gender identity was a matter of importance to the complainant i.e. was it a condition of the complainant’s choice or consent? This may be expressly stated or inferred from all the facts.

Closely connected with the sexual nature of the relevant act

The condition of importance to the complainant needs to be sufficiently closely connected with the sexual nature of the relevant act to be capable of depriving them of their freedom to choose.

For example, if the complainant chose to have sexual relations with a person whose sex is male and gender identity is male i.e. a non-trans male, it is likely that this condition is sufficiently closely connected with the sexual nature of the relevant act.

If the complainant asserts that they were prepared to have sexual relations with a trans person but only if they possessed a Gender Recognition Certificate, it is doubtful that such a condition is sufficiently closely connected with the sexual nature of the relevant act to be capable of depriving the complainant of their freedom to choose, as it more likely relates to the broad circumstances surrounding it.

2. Was the complainant deceived in relation to this condition and deprived of their freedom to choose, and therefore did not consent? If so, consider the third question.

The deception (whether by way of a lie, false assertion or failure to disclose) needs to relate to the condition of the complainant’s choice or consent.

The following factors may be relevant to the issues of deception and freedom to choose, together with any others identified on the facts of the case. We have reproduced a selection of these factors below; the full list may be found in the guidance. Some factors clearly relate only to trans and non-binary suspects, but most can be applied to all suspects:

Whether the suspect targeted, manipulated or exploited the complainant, or exerted control or coercion during their relationship.
The complainant’s particular characteristics and life experiences.
The degree to which the sex, or trans or non-binary identity of the suspect is apparent or otherwise.
The attitude of the suspect to revealing their sex, including concerns over any potential adverse impacts.
Use of a prosthetic device without the complainant being aware.
The nature and power balance of the relationship.
The length of the relationship.
The nature of and the circumstances in which the sexual act took place.
Evidence that the complainant expressed doubts, asked questions, or made assertions relating to the suspect’s sex and / or gender identity.

3. Did the suspect reasonably believe the complainant consented?

If a complainant is deceived and did not consent, the next stage is to consider whether the suspect reasonably believed that they consented to sexual activity.

Prosecutors should examine the facts and circumstances of the suspect’s claim and consider what steps the suspect has taken to satisfy themselves that the complainant was aware of their gender identity and / or sex and that they consented to the sexual act.

When addressing this question, the (non-exhaustive) list of factors below should be considered, together with any others relevant to the facts of the case:

Many of the factors listed above at stage 2 may be relevant. For instance, even though the suspect fails to disclose their sex and / or gender identity they may reasonably believe the complainant consented due to the degree to which the sex, trans or non-binary identity of the suspect is apparent or the nature of and the circumstances in which the sexual act took place.
Where there is evidence of coercion, manipulation, or exploitation of the complainant, it is less likely that the suspect held a reasonable belief.
There may be circumstances where the suspect deceives the complainant initially but, because of the long passage of time between the initial deception and the sexual activity, during which for instance, the suspect and complainant meet and interact on numerous occasions, the suspect reasonably believes that the deception no longer operates on the complainant. Such circumstances may also be relevant where several sexual offences are alleged over a period of time.

Public interest considerations

A prosecution will not automatically take place once the evidential stage is met. However, a prosecution will usually take place unless the prosecutor is satisfied that there are public interest factors tending against prosecution, which outweigh those tending in favour.

When considering the public interest stage of the Full Code Test, prosecutors must consider the questions set out at paragraph 4.14 of the Code for Crown Prosecutors.

Some considerations which may be relevant include:

Seriousness: Sexual offending is by its nature serious. The prosecutor will assess seriousness on the specific facts of the case.
Culpability: This will require an assessment of the suspect’s culpable acts and omissions and may consider whether the conduct was planned or involved exploitation, manipulation or grooming.
Circumstances of and harm to the victim: This will consider relevant matters such as whether there was an abuse of trust, and the relationship in general between suspect and victim.
Suspect’s age and maturity: Prosecutors should consider the CPS guidance Children as Suspects and Defendants and Chapter 13 (Sexual Offences and Youths) of the CPS Rape and Sexual Offences guidance.

A final word

CPS guidance aims to support prosecutors to make effective decisions which are compliant with the Code for Crown Prosecutors in all cases, thereby helping to ensure the delivery of justice. It will also be essential for the police, who apply the Code when exercising the important discretion as to whether to bring a case to the attention of the Crown Prosecutors for a charging decision. The above updated guidance hopes to ensure a fair and consistent approach to these difficult and sensitive cases.

Want more of this type of content? Check out our range of legal articles here.

For quick and easy access in the future, click the pin icon from the top right of any document to save it to 'My Documents'.

Consent - Deception as to Sex in Rape and Sexual Offences

Written by: Zoe McDonald, PNLD Legal Adviser

The Law

CPS guidance

Evidential considerations

Public interest considerations

A final word

Consent - Deception as to Sex in Rape and Sexual Offences

Written by: Zoe McDonald, PNLD Legal Adviser

The Law

CPS guidance

Evidential considerations

Public interest considerations

A final word

Not found