Consultation on CPS guidance on Deception as to (Gender) Sex - Summary of Responses

[IwantToRetire]

This is a summary of responses to the public consultation undertaken by the Crown Prosecution Service (CPS) on revisions to the guidance on Deception as to gender (now titled “Deception as to sex”), which is contained in chapter 6 (Consent) of the CPS guidance on Rape and Sexual Offences (RASSO).

The proposed revisions were published on 26 September 2022 and consulted on for a period of twelve weeks, ending 8 December 2022.

We received 409 responses in total. These included responses from:

• Organisations and interested stakeholders representing the diverse views of, for example, trans and non-binary persons, gender critical stakeholders, women’s rights groups and lesbian and gay persons
• Academics
• Police organisations
• Healthcare professionals

All of these responses have been analysed, including any received after the consultation closed.

In addition, we have considered the points raised by the think tank Policy Exchange, in its paper The Crown Prosecution Service’s approach to transgenderism: legally inaccurate and ideologically captured, dated 5/11/23.

We received a number of suggestions that we consider to be out of scope of the consultation and guidance. In the main, this is because they are not relevant to the purpose of the guidance, which is to highlight some of the complexities around gender identity and to assist prosecutors to make charging decisions in cases involving deception as to sex.

Examples of issues raised that we consider to be out of scope are:

• Amendment to primary legislation in order to clarify the case law.
• A formal evidence-based review and consultation which considers issues of harm to victims arising from all forms of deception as to sex, to consider what forms of deception should amount to a criminal act.
• Suggestions as to other forms of conditional consent that should vitiate consent. For instance, where a complainant discloses a latex allergy and agrees to sex on the condition that the suspect does not use a latex condom.
• Concerns relating to the volume of prosecutions for rape and the rates of conviction for rape and other sexual offences.
• The perceived lack of accurate data in the Criminal Justice System on individuals’ sex and gender identity.
• Female-only spaces and female prisons.

This is a very long article which needs to be read in full. (I will need the weekend to take it all in) So I have just posted the intro more as a reminder about this as the process started 2 years ago!

https://www.cps.gov.uk/publication/consultation-cps-guidance-deception-gender-summary-responses

It's a lot better than I thought it would be given the draft guidelines the CPS originally put forward.

Have you read it in full already?!

Please summarise for us slow readers...

I skim read it 😂 I was concerned with the original draft guidelines that they weren't just obfuscatory but giving primacy to the idea that "gender" should be paramount in all considerations. They seem to have understood now that this is about deceiving someone about your sex.

@IwantToRetire Apologies I started a duplicate thread so have asked mumsnet to delete mine, which said:

Following public objections, the CPS announced yesterday they have changed the proposed legal guidance on Rape and Serious Sexual Offences (RASSO), specifically the guidance on “Deception as to gender”, which can be found in Chapter 6 Consent, to 'Deception as to sex'. Rape and Sexual Offences - Chapter 6: Consent | The Crown Prosecution Service.
The outcome of the consultation is available here: Consultation on the Deception as to Gender section in the Rape and Serious Sexual Offences (RASSO) legal guidance | The Crown Prosecution Service.

summary of consultation responses here: Consultation on CPS guidance on Deception as to Gender - Summary of Responses | The Crown Prosecution Service.
There are ongoing problems re ideological capture by trans lobbyists and misogyny within the CPS so thanks to all who contributed to the changes they have reluctantly introduced.

Well, agree it is good they have now started using the word sex again (saying gender and sex were used interchangeably is not in fact true - only a more recent devlopment post growth of queer politics in universities).

Otherwise they seem to be saying that in terms of case law it is all a bit vague in relation to trans identity. ie that until a case happens they law doesn't really offer guidelines? So it will be up to Judges to create these guidelines? Which could then be Judicially reviewed?

Summary of changes to the guidance

The key revisions that have been made to the guidance are:

• The guidance, including the title, refers to “deception as to sex” instead of “deception as to gender”.
• It is made clear that the principles in the guidance apply to all cases of deception as to sex, whether the suspect is non-trans, trans or non-binary.
• There are a number of revisions to the language used in the guidance, including some explanations of words and concepts, such as “gender identity”, “gender dysphoria” and “birth sex”.
• More background information on trans and non-binary persons is provided, to assist prosecutors to make more informed decisions.
• The section on the Gender Recognition Certificate explains that since many trans persons do not obtain a GRC, and non-binary persons and those under 18 years old are not eligible for a GRC, possession of a GRC is unlikely to be of relevance in most cases.
• There is a new, extensive section on McNally and the case law on conditional consent. This section clarifies that consent may be vitiated by an express deception or by a failure to disclose; it explains the application of McNally to trans and non-binary suspects; and it sets out the test to be applied in cases of deception as to sex, including cases involving trans or non-binary suspects.
• There are extensive revisions to the section on Evidential considerations. These include:
• Examples of the types of issues that may arise in cases.
• The three stages regarding the question of deception have been modified and the first stage has been amended so that it focuses on the condition of the complainant’s choice.
• Examples are provided to help explain possible conditions of the complainant’s choice and whether a condition may be sufficiently closely connected with the sexual nature of the relevant act to be capable of depriving the complainant of freedom to choose.
• We have clarified that there is no onus or responsibility on a complainant to confirm or discover the sex or gender identity of the suspect, and we have made extensive revisions to the factors to consider in relation to whether the complainant was deceived (stage 2).
• The section on Public interest considerations has been revised to focus on the key public interest questions at paragraph 4.14 of the Code.

background information on trans and non-binary persons is provided, to assist prosecutors
be interested to see what this says

consent may be vitiated by an express deception or by a failure to disclose;
I think this is good (?)

NB The guidance does not represent a change in the law.

I am not sure why they took into account this analysis after the closing date but seems good!

https://policyexchange.org.uk/publication/the-crown-prosecution-services-approach-to-transgenderism/

It was written by Maureen O’Hara - a senior lecturer in law and a former solicitor. She has a particular interest in law and policy relating to violence against women and to child afeguarding.

Maureen is the author of the Policy Exchange publication Transgenderism and policy capture in the criminal justice system: Why criminal justice policy needs to prioritise sex over ‘gender identity’

As @Chariothorses says, they have made these changes reluctantly. The draft guidelines they consulted on were pretty awful. See the recent thread where a TRA explains at length why "trans people" shouldn't be covered by this law, also see all the lobbying from TRA law professor Alex Sharp etc.

Yes, given recent posts in FWR on this topic I’m glad that there has been some (positive) movement on the consultation in this area of law.

Thanks for posting OP, I’ll have a wee look at it over the week.

Just posting this again, as although this thread existed another one was started, buth then as happens too often on FWR had got hijacked by the usual suspects to be about, anything other than whether this change (or is it) will be positive, for those supporting sex based rights.

Are the new guidelines strong enough for someone to be able to claim via a legal route that they were deceived about someone's sex.

Or at the least is it a statement that in an understated way is saying that sex and gender are not the same, and no one should try to pretend otherwise in terms of sexual relations. And of course everything else!

This article in the Telegraph is nearly as confusing as the CPS Guidance!

Transgender people who hide biological sex from partners may not be committing crime, CPS says
https://www.telegraph.co.uk/news/2024/12/25/transgender-people-hide-biological-sex-partners/
Can be read in full at https://archive.is/MJkBk

(Funny that the Telegraph only chose to publish examples of where women have been charged with sex by deception.)

The only cases I've read about involve women committing sex by deception.

Daily Mail has taken the same tack:

Prosecutors accused of giving predators 'get-out-of-jail-free card' https://www.dailymail.co.uk/news/article-14226371/Prosecutors-predators-jail-free-card-cases-sex-deception.html?ito=native_share_article-nativemenubutton

It happens:

https://www.bbc.co.uk/news/uk-england-beds-bucks-herts-66730689

And what about the Scottish butcher who deceived his child victim?

Andrew Miller/Amy George wasn't prosecuted with 'sex by deception'. I'm sure it may happen, just that I hadn't seen court cases involving males/men.

I think that case - Wayne Rogers - is the first time I've seen a man tried & convicted for that offense.

I think in terms of the main stream media that is true.

And I think there is a difference between some man online pretending to be a female, particularly a young girl, to try and trick an actual young girl into posting images the man can later exploit.

So wonder whether in terms of a potential intimate act between a trans woman and a man, whether men would not want to make it public that they had been deceived.

And had forgotten about the Wayne Rogers case, but that was clearly about sexual assualt.

I thought the law, and the attempt to clarify it, was about people who think they are going to have sexual relations with someone of one sex, because they have been convinced by the deception only to find out later they weren't that sex.

Wayne Rogers - is the first time I've seen a man tried & convicted for that offense.

So was one of the charges sex by deception. I hadn't realised that, as it was clearly about a premeditated sexual assault on someone who was drunk.

ie rather than say having chatted someone up in a bar, and later suggesting they have sex, without revealing their biological sex.

I assume this: 'Mr Rogers was convicted of assault by penetration, two offences of sexual assault and two offences of causing a person to engage in sexual activity without consent' may refer to sex by deception, although its not spelled out.

How can "assault by penetration" amount to deception?"

You may wish to read the newspaper links upthread. Or, given that they ain't pretty reading, accept that it has happened.

Mr Rogers seems to have made a habit of going out dressed as a woman so he could persuade men to let him give them a bj - but wasn't above out and out assault if the target was drunk enough.

I meant to put it bluntly a penis is a penis.

That cant be said to be deception. The law relates to people who willing have sex with someone they are convinced they are one sex but then turn out to be the other.

A male, even dressed as a woman, is not decieving anyone once his penis is evident.

I am not trying to minimise what happen to the victim, I just dont think the law about sex by deception is about unknown sexual predators,

But then the wording of the new guidance is so permeable to any number of understandings, who knows.

Maybe this is how it is relevant:

This section clarifies that consent may be vitiated by an express deception or by a failure to disclose; it explains the application of McNally to trans and non-binary suspects; and it sets out the test to be applied in cases of deception as to sex, including cases involving trans or non-binary suspects.

I suppose in my mind it is because I thought it was about where there appeared to be mutual consent, not where one person was intent on committing a sexual assault.

Penetration doesn't necessarily involve a penis.

Penetration doesn't necessarily involve a penis.

But I thought it was in this case, though quite honestly I dont want to think about this pervert any longer.

I am still trying to get my head round the new guidelines.

And am further confused if it is about more than when what was apparently a mutally agreed sexual encounter, turns out to be sex by deception, that it somehow also relates to those whose sole purpose is sexual assault. Which isn't in any way deception, it an act of violence.