CPS consultation on guidance re sex by deception.

[Imnobody4]

www.cps.gov.uk/cps/news/cps-seeks-publics-views-draft-deception-gender-legal-guidance

They don't seem to be using the terms sex and gender correctly which is par for the course.
A public consultation on updated legal guidance regarding deception as to gender in rape and serious sexual assault cases has been launched by the Crown Prosecution Service today.

The draft guidance reflects the case law on deception as to gender and whether it could affect consent and addresses the issue where a suspect’s gender identity differs from the sex they were assigned at birth

Our draft guidance has already benefited from the input of a number of interested groups, but we want the final product to be informed by as wide a range of views as possible. We are inviting comments to make sure that it strikes the right balance, so we can meet our obligations to be fair to both victims and suspects.

I think we can guess which groups they've consulted.

Primarily lesbians who don't want to have sex with biological males?

www.cps.gov.uk/consultation/consultation-deception-gender-section-rape-and-serious-sexual-offences-rasso-legal

Question 1: Do you think that the language used is appropriate and sensitive to the issues addressed? If not, please identify concerns and share how it can be improved.

Proposed first test for bringing a prosecution:
www.cps.gov.uk/publication/deception-gender-proposed-revision-cps-legal-guidance-rape-and-serious-sexual-offences

1: Has there been active or deliberate deception?

If 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.

The following type of evidence may assist to establish how the suspect perceived their identity:

The steps the suspect has taken to live consistent with their gender identity.

The steps the suspect has taken to acquire a new legal or administrative gender recognition.

So the consultation document is proposing that gender deception would invalidate sexual consent, but sex deception alone would not.

Sorry what now 🤨

It is important to note that not every case will amount to rape where a condom is not worn even though there was a prior agreement to use one. Prosecutors must consider the overall context in which the offence is alleged to have taken place and the extent to which the actions of the defendant negate the freedom to choose of the complainant or their sexual autonomy. Similarly, every instance where the suspect ejaculates inside the vagina contrary to the wishes of the complainant will not necessarily vitiate consent.

I hope this is really really widely shared. I would like to hear the British public's views on how they feel about 'sex by deception'. I would also like to hear Stonewall's position - as I think they used to have the abolition of this law as one of their organisational aims, but seem to have sort of shuffled it under the carpet, somehow.

every instance where the suspect ejaculates inside the vagina contrary to the wishes of the complainant will not necessarily vitiate consent.

JFC.

The steps the suspect has taken to live consistent with their gender identity.

How does someone live 'consistent with their gender identity'?

Is someone playing the game of putting forward a proposal that's so outrageous it's bound to be rejected and something reasonable accepted instread?

I would also like to hear Stonewall's position - as I think they used to have the abolition of this law as one of their organisational aims, but seem to have sort of shuffled it under the carpet, somehow.

Now that the proposal is to criminalise only "gender deception" (not sex deception), Stonewall may be happy with the proposed rules on sex by deception.

I'd be interested to hear how Stonewall thinks anyone will ever be prosecuted for sex by deception if deception can only mean lying about gender (and not sex). The only step Stonewall thinks is required for someone to "live consistent with their gender identity" is to identify that way, so presumably telling the victim that you have a particular gender is all the proof anyone could ask for that this is in fact your gender. Brilliant!

If I were running Stonewall I'd keep quiet for now, but if anyone is ever prosecuted on the basis that they did not "live consistent with their [claimed] gender identity" (a high bar which can be expected to deter most detectives and CPS solicitors), Stonewall might well be called upon by the defence to explain that the accused certainly was living their gender identity - they even stated their gender identity to the complainant....

From the proposed revision:

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.

There are rules on consultations, and a ban on proposing garbage law or something thats illegal should be one of them.

Is someone playing the game of putting forward a proposal that's so outrageous it's bound to be rejected and something reasonable accepted instread?

I think someone is playing the game of "let's nobble this quietly from inside so that we get what we want without any public debate on it". Where have we heard that before? This needs to be splashed all over the papers.

Incidentally, the current (2021) guidance is already more permissive on this than many here may be aware.
Current rules: www.cps.gov.uk/legal-guidance/rape-and-sexual-offences-chapter-6-consent
Proposed new version: www.cps.gov.uk/publication/deception-gender-proposed-revision-cps-legal-guidance-rape-and-serious-sexual-offences

I would think the people most likely to be impacted by the proposals are heterosexual women. Isn't it the case that all those who have been prosecuted for the offence of sex by deception in recent years have been biological women presenting as male?

Just as lesbian women usually have an aversion to the thought of intimacy with a biological male, heterosexual women usually have an aversion to the thought of intimacy with a biological female. It is easier for a transman to pass than it is for a transwoman and with the lights switched off and the possiblility of using prosthetic devices, I can see how young, inexperienced females could be hoodwinked. I would however think it would be incredibly traumatising if and when they realise as it would be such an attack on that persons sense of 'self'

WTAF?!

@Thingybob no argument from me! I went down the route of obvious groups to protect and there's of course the group which has endured the most attacks!

Happy to have either of these groups consulted... eventually...

What in the ever-loving [screams expletives loudy and at length]???!!!!!

every instance where the suspect ejaculates inside the vagina contrary to the wishes of the complainant will not necessarily vitiate consent

How do we define rape if it is not ejaculating inside a woman's vagina contrary to her wishes. Surely 'contrary to her wishes' and 'consent' have the same meaning in practice as in - against her will.

I would have thought it would be defined as penetration using a penis contrary to her wishes, irrespective of ejaculation?

I do not know what the law says on the matter of ejaculation. As the law currently stands is it rape if a man promises to use the withdrawal method and then fails to do so successfully?

If it's contrary to the woman's wishes then she has not consented.

Dear God, the endless wangling to make using women sound ok and all right and to fiddle those boundaries gently away, wtf is going on? What do you have to be sniffing to write a sentence like that and not think wtaf am I involved in?

If you are referring to me I am not trying to do that. I am not talking about consent per se, I am talking about rape law in the UK. Obviously I would hope that (one day, as soon as possible) rape law in the UK does a good job of protecting women whose lack of consent is ignored.

If a woman says "I consent to penetrative sex but not ejaculation. You must withdraw" and the man ejaculates inside her, is this something that could be prosecuted as rape under UK law? I believe that you are saying "yes", and having googled it would appear to be the case that you are right. Given the appallingly low conviction rates for rape I would imagine that a woman in this circumstance would be incredibly lucky to see her complaint to the police became a conviction.

And at the risk of being petty, "If it's contrary to the woman's wishes then she has not consented" seems a little simplistic. A woman who wants to get pregnant might consent to sex on the condition that the man doesn't use a condom and ejaculates inside her. Could she accuse him of rape if he used the withdrawal method? (I suspect not, but maybe I am wrong).

No, not talking to you or criticising you in any way, sorry - just so frustrated and fed up with all this.

However I still maintain that 'this is contrary to my wishes' cannot be seen to mean 'I consent to this'.

Yes, that's 'stealthing' and is usually considered rape. At least, I thought it was.

'conditional consent' - there is no such thing as 'unconditional consent', I'd have said:

www.kingsleynapley.co.uk/insights/blogs/criminal-law-blog/stealthing-conviction-brings-conditional-consent-out-in-the-open

www.cps.gov.uk/legal-guidance/rape-and-sexual-offences-chapter-6-consent

'Ostensible consent can be vitiated by deceptions that are closely connected to the nature or purpose of sexual intercourse.'