Gay Men's Network response to CPS Rape by deception consultation

[DennisNoelKavanaghOffTwitter]

Hope it's ok to start a thread here, just wanted to bring some prominence to our response which is now publicly available:

The Gay Men's Network has responded to the CPS consultation on sex crimes involving deceptions as to biological sex. In it, we warn of Institutional ideological capture, victim blaming and inequality before the law

Read our full response here (first link in letters and responses)

We include in our response a draft email for anyone who wants to write in supporting our submission at pages 34-35. If you wish to adapt the law or arguments in the response please feel completely free to do so.

Details on how to respond to the consultation are available at the CPS website here - it closes 19th December 2022.

If you support our work advocating for the interests of homosexual males, please consider donating, our work requires infrastructure and with more donations we can make more of a difference.

Stay tuned for the GMN response to the NHS Interim Service Specs consultation and a public communication on the Equal Treatment Benchbook among our other projects

It speaks volumes that CPS are throwing around phrases about being ‘blind to the obvious’ to discredit victims - to the extent that they will write them into policy and put it out for public consultation.

Also a very unfortunate echo there of the case of the female convicted for posing as a male, who blindfolded her victim.

www.independent.co.uk/news/uk/crime/gayle-newland-guilty-latest-sexual-assault-trial-woman-poses-man-trick-friend-sex-prosthetic-penis-a7814771.html

Thank you for this @DennisNoelKavanaghOffTwitter - brilliant timing too as I have some time on my hands tomorrow so to submit a response.

I appreciate your time on this, it's really useful.

I think that's really good - fingers crossed it has the desired impact

I cannot access it either...I keep getting an error message whether I try from the link or via Google search.

Does anyone have another link, please?

It might be the parental controls on your router. I could access it when I switched to mobile data.

i suspect it’s the actual subject matter of the consultation ‘sex by deception’ and rape that was triggering my parental controls. Rather than just the gay men factor - although it sounds like GMN have had wider issues with that.

That is a very valuable piece of work , and a welcome voice.

Thank you!

Absolutely blistering response @DennisNoelKavanaghOffTwitter .

Can anyone explain non-disclosure vs deception? Could non-disclosure mean the person didn’t consent? Why was this case blog.6kbw.com/posts/r-monica-v-dpp-2018-ewhc-3508-qb-comment. - undercover police officer not found in favour of victim as it was regarded only as ‘non-disclosure’?

It all seems really confusing to me - this case the defendant was found not guilty (told the complainant he’d had a vasectomy but lied) yet removing a condom is sex by deception. And having no intention of paying a prostitute isn’t sex by deception either. The law makes no sense to me

I forgot to add the link edenlegalservices

www.edenlegalservices.co.uk/sexual-offences-and-the-issue-of-consent/

Wow - at both the proposals (which are outrageous!) and the response (which is fantastic!)
I've only skim-read and am not familiar with the McNally case but you pinpoint the issues very well.

Couple of typo things - p4 under 'Our approach to this response' is a bit garbled, looks like a c&p error.
Para 34 references para 34 above but this looks like it should be ''para 31 above".

Some of the CPS stuff is - in my learned opinion - batshit. E.g. (as you correctly highlight)
"Has the complainant closed their eyes to the obvious or wilfully ignored aspects of the suspect’s gender? For instance, did the complainant have an opportunity to discover or confirm the gender of the suspect but chose not to avail themselves of the opportunity?"

"Is there any evidence that the complainant was exploring their own sexuality at
the time of the alleged offending?"

The consultation asks for name and address etc in responses - are these mandatory/ can we use placeholders, or will the response be ignored?

As it looks like the CPS wants to treat people with one set of beliefs differently from people with others, I'd rather not run the risk of it!

I don’t see what the value is in distinguishing between non-disclosure and deception.

we are talking about sex here. In both senses of the word. it’s got nothing to do with ‘gender’ or ‘gender identity’. We are in the realm of biological sex and sexual preference. Entirely.

If you are presenting yourself as the opposite sex to a potential
sexual partner, then you KNOW that you are deceiving them by not disclosing that fact. Otherwise it would be a matter of clear understanding between the pair of you that you were, in fact, a biological man not a woman or vice versa).

If you haven’t obtained explicit, enthusiastic consent for any sexual activity with full awareness of your underlying biology, then that is never OK. Trans people know they are trans. They know that they will always need to be sure that any sexual partner is aware of their anatomy (and totally fine with that). They will also know that it is likely to considerably narrow the pool of people who might be interested in being their sexual partner.

There’s simply no way for ‘non disclosure’ to be anything other than ‘sex by deception’.

No amount of dressing things up in the language of gender identity and transgender rights of privacy and non disclosure of their trans status can change that. This isn’t an interview for a job in a bank, or booking a table in a restaurant or joining a mixed sex running club or any other situation where the biological facts will really not be relevant; it’s sex. Actual sexual intercourse. An activity in which you use your genitals.

For most people, the biology and the anatomy matter in consenting to sex. I’d even hazard a guess that most bisexual people would want to know in advance. Very few people will want to be surprised by their sexual partner’s genitalia.

There really should be no circumstances in which someone is surprised by what they find in a new sexual partner’s pants.

Some of the CPS stuff is - in my learned opinion - batshit. E.g. (as you correctly highlight)
"Has the complainant closed their eyes to the obvious or wilfully ignored aspects of the suspect’s gender? For instance, did the complainant have an opportunity to discover or confirm the gender of the suspect but chose not to avail themselves of the opportunity?"
"Is there any evidence that the complainant was exploring their own sexuality at the time of the alleged offending?"

I totally agree. This is such bullshit. And I’m
glad GMN have taken the time to respond in depth.

This consultation overtly aims to shift the responsibility for confirming the biological sex into the victim. They shouldn’t have to ‘avail themselves’ of the opportunity to check that someone is, in fact, an actual man.

The responsibility must always lie with a transgender person to inform a new partner of their biological sex. Regardless how they personally feel about it. Or whether they feel they must have a right to be treated as if they were the other sex.

Similarly, regardless of whether someone is questioning their sexuality - or even if they are very openly bisexual - they have a right to pertinent information about the biological sex of a potential partner so that they can consent to sex at all. The fact that someone is sometimes willing to have sex with women doesn’t mean they have nothing to complain about if the partner they thought was a man turns out to be female.

The CPS proposals really are the gender identity equivalent of ‘she was asking for it because she was wearing a shirt skirt’.

It’s 2022 and this is where gender ideology has led us. It’s incredibly depressing.

If you are presenting yourself as the opposite sex to a potential
sexual partner, then you KNOW that you are deceiving them by not disclosing that fact. Otherwise it would be a matter of clear understanding between the pair of you that you were, in fact, a biological man not a woman or vice versa).
If you haven’t obtained explicit, enthusiastic consent for any sexual activity with full awareness of your underlying biology, then that is never OK.....There’s simply no way for ‘non disclosure’ to be anything other than ‘sex by deception’.

That nails it very neatly.

As the GMN response says: this is creating a privileged group of offenders who can claim a special right to deceive others, and a second class citizen group of victims, who may not protest being deceived and used/abused if this has been done to them by a special offender.

It's incompatible with equality and justice: all people being equal in law.

Just reached the end of the "Comments on the framing of the consultation" section - very powerful stuff! As PPs have said above, many thanks for your excellent response to an unbelievably shoddy draft guidance. The CPS should be ashamed.

Finished reading the consultation response now - very impressive. As is the letter to the new chair of trustees at Stonewall. I'd be interested to know how he responds.

Doing my best at a rough and ready summary of the law here....

The Court of Appeal says there is a difference between deceits which "vitiate" (cancel) consent and differences which do not. The line they draw is whether a deception is closely and intimately associated with the sexual act itself.

This means (following Assange) that the use of a condom is sufficiently closely connected that it does vitiate consent where there is a deception. Same for Biological sex (McNally) and the COA say it could vitiate consent to not disclose your positive HIV status where the other party had consented on a false basis that the Defendant was not HIV positive.

On the other side of the line you have the "wider circumstances" deceptions - so, a Defendant who refuses to pay a prostitute has deceived, but the deception is not as to the intimate act, rather the contractural arrangements around it. See also - a person who is a police officer but pretends (deceptively of course) to be an eco protestor.

That means you get a line of caselaw that can sometimes appear inconsistent but is based in the language of s.74 of the Sexual Offences Act 2003 so the question the court asks is "Did the alleged victim have the freedom and capacity to choose or was the choice taken from them?" (I paraphrase)

In McNally Lord Justice Leveson essentially said - V had her freedom to choose to sleep with a male taken from her by the deception of D and therefore consent was vitiated in law.

Another complicating factor is that spy cops (and the individuals they recruit to act as spies/agent provocateurs) are permitted to commit crimes, with no recourse for victims.

The line they draw is whether a deception is closely and intimately associated with the sexual act itself.

And somehow the CPS want to use the gender identity squirrel to distract from the fact that these cases are always, absolutely about the biology - the actual anatomical features that are used in the sex act.

It’s ridiculous that there’s any mention of gender identity in this at all. The issue is absolutely about deception in relation to biological sex.

If you know that you are an adult female human then it is your responsibility to ensure that any potential sexual partner is fully aware of this.

When I was about 12, I had short hair and looked a lot like a boy. A girl came up to me to tell me she liked me and to ask me out. My response was to tell her that I was a girl. I knew the likelihood was that she thought I was a boy, and that the invitation was made on that basis. And I was right. She wasn’t interested in going out with a girl.

The fact that I am straight and wouldn’t have been interested in going out with her on that basis (or that sex wouldn’t even have been a consideration at that point in my life) is not really the point. I had a responsibility to correct her misconception so that she could make properly informed choices about her relationships.

If I was able to recognise this - absolutely implicitly - at 12, then there’s no way that a trans person who has gone to significant lengths to present themselves as the opposite sex doesn’t realise they need to tell people the truth about their biology if they want to have sex.

Are the CPS attempting to pretend it's not about biological sex? To illustrate the nonsense of their ideology that sex is determined by choice, would a man who identified as a woman but led a straight woman to think he was a man but she later found out he identified as a woman have a case of saying this was deception? By the founding principles of their ideology, yes she would. Because they believe sex is something other than biological sex.

@OldGardinia I have no idea what that would mean for e.g. trans widows, who find out they've been sleeping with a woman, not the man they thought.

But I'm not sure that's the argument.

Having heard speakers on this, one of whom has been steering and driving this for a very long time as a target, the belief is that nothing should ever interrupt absolute respect and validation of a TQ person's chosen identified sex.

Therefore if they wish to have sex with another person it is framed as reasonable to manipulate the other person into a belief of sex, and to expect whatever happens that the TQ person's chosen sex is never met with unwanted facts or challenge, and that their privacy and feelings are the sole consideration.

One of the reasons given by this powerful manipulator is that if a person discovers they have been deceived into sex they would not have consented to if they had known the biological sex of their partner:

1. the person is being transphobic to react negatively. This effectively puts them into the 'sub human depersonalised' box where they or anything they say or anything that happens to them should no longer matter to any righteous person.

2. the deceived person should not be permitted to seek redress via the police or to report it because in doing so they are 'outing' the TQ person.

That in this view of things not only has the TQ person has set out to use another non consenting person for their own agenda, and is achieving this by deception and manipulation, but the TQ person should be protected from any consequences from their actions by their victim being prevented from fairness or justice for having been so assaulted.

It's at this point you have to seriously start wondering about the pathology and psychology of those who can believe this is in any way ok.

Thank you @DennisNoelKavanaghOffTwitter and other posters for explaining it so clearly.