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