Source: Crown Prosecution Service (CPS) published on this website Monday 16 December 2024 by Jill Powell
UPDATED prosecution guidance, which clarifies the law on when deceiving someone or failing to disclose birth sex could affect consent in rape cases, has been published 16 December by the Crown Prosecution Service.
The new deception as to sex guidance has been updated to assist prosecutors in their decision making in this complex area of law.
The law, which the guidance reflects, states there is no difference between a deliberate deception about birth sex and a failure to disclose birth sex.
Central to the update, the guidance makes clear:
- In line with the law on consent – charges will depend on whether a 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. It also clarifies 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.
Prosecutors are given guidance on the evidential considerations to be applied in these cases, including where the suspect is trans or non-binary, as well as relevant case law and an explanation of how a failure to disclose sex could remove consent.
Siobhan Blake, Chief Crown Prosecutor and national lead for rape and serious sexual offences, said:
“We recognise this is a highly sensitive area of law – it is important our guidance provides prosecutors with the knowledge they need to make decisions in the rare cases where deception as to sex may have occurred. Importantly, this guidance also clarifies the law where suspects are non-trans such as females pretending to be male and vice versa. Every prosecutor has a duty to act with impartiality, each case is always assessed on its individual merits, so we make fair and objective decisions”
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 CPS has updated the title of the guidance to more accurately reflect that this part of the law is based on a person’s sex, rather than gender identity.
The new guidance forms part of the Rape and Sexual Offences prosecution guidance.
