I had a look at the current text and where imo it displays bias and re-edited it to try remove it.
The author keeps putting gender first and ignoring the act is a suspect tricking someone over the sex of the suspects body.
https://www.legislation.gov.uk/ukpga/2003/42/section/74
74 “Consent”
For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.
Top of page
Reasonable belief in consent
Deciding whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A [ the suspect ] has taken to ascertain whether B [ the complainant ] consents (subsection (2) of sections 1 - 4). It is likely that this will include a suspect’s attributes, such as disability or extreme youth, but not if (s)he has any particular fetishes.
Adjustment and comments
Deception as to [ birth ] sex [ of the suspect ]
All cases involving deception as to sex [ of the suspect ] must be referred to the CCP for prior approval of a decision to charge or NFA and consultation on subsequent decisions which terminate proceedings or substantially alter the charge.
As with all cases, prosecutors must approach cases involving an alleged deception as to sex [ of the suspect ] on the basis of the specific evidence and circumstances revealed by the police investigation.
However, t [ T]he following information may assist by way of background for prosecutors to understand the context of such a case.
[ This is benchmarking. The CPS is setting the language (words and terms) so the CPS's staff is using the same meanings for words and therefore can apply an agreed metric to the decision making process ie two staff with the same evidence should examine and test it using the same process such that they both reach the same prosecution outcome and that the two written report would have consistent language usage ]
Birth sex
Birth sex refers to the sex that is recorded or registered at the time of birth [ (sometimes referred to as “sex assigned at birth”) ] . This is identified by observation of the infant by a midwife¹, nurse¹ or doctor¹ or, in some instances, by clinical tests, before being recorded².
[ this is a benchmark question, was a victim tricked into sexual activity with a person who is of the sex they would not otherwise have had sex with. So sex needs to be established before gender ]
[ ¹not relevant for recording or registration as this is a wide legal duty under section 1 Births and Deaths Registration Act 1953 ]
[ ²the CPS could also have to investigate themselves (if this was not properly recorded), as in have a medic confirm that body parts and/or modifications were there/missing (its foolish to go to court and have the suspect prove the obvious). ]
[ Gender Identity ]
[Gender Identity refers to social or cultural differences or the way in which someone is perceived or experiences themselves. ]
[[[ this is not the primary benchmark question rather it is:
• classification issue: was a victim tricked into sexual activity by a person using GI as a tool to gain sexual access which would otherwise be refused or
• if the Birth Sex was known this is relevant to consent (or lack) for specific sexual conduct. ]]]
Although the words “sex” and “gender” may be used interchangeably, to refer to the state of being male or female, sex tends to refer to birth sex (sometimes referred to as “sex assigned at birth”) or legal recognition, while gender is commonly used to refer to social or cultural differences or the way in which someone is perceived or experiences themselves (commonly known as “gender identity”).
[ Terms used in this Guidance ]
This guidance uses the term “sex” to refer to birth sex and “gender” to refer to gender identity.
A person’s gender identity might be the same as their birth sex [ birth sex might be the same as their gender identity ] (sometimes referred to as “cisgender” but for clarity referred to in this guidance as “non-trans” [ . ]
) or
[ A person’s birth sex might be ] different to their birth sex [ gender identity ] (transgender / trans or non-binary). [ for clarity referred to in this guidance as “trans”. ]
[ aim is to create clear groups with classification and clear /consistent terms where birth sex is the focus (as people do not have sex with gender identities) ]
Deception as to birth sex [ of the suspect ] may be relevant to the issue of whether consent to sexual activity was vitiated (negated). Cases in which deception as to birth sex [ of the suspect ] is a live issue may involve either a suspect who is non-trans [ engaged in deception as to their sex against a person who is either trans or non-trans, ] or a suspect who is trans or non-binary.[ engaged in deception as to their sex against a person who is either trans or non-trans. ]
Although much of this guidance contains information on trans and non-binary suspects, this is because questions of deception and consent may involve more complex issues where the suspect is trans or non-binary.
However, the guidance does not intend to suggest that most such offences are committed by trans or non-binary persons nor that trans and non-binary people are pre-dispositioned to be deceptive. In many cases, the suspect will be non-trans
i.e. a woman purporting to be a man or vice versa.
[[[ Yep women are convicted of what % of sex crimes? but this will be the theme as there is actual case law involving a "non-trans" female offender so it gets a pass grade.
(& PIV rape is easier to prove in court)
Note Bias theme when sex or gender is listed
• male/female V
• female/male....
• trans and non-trans V
• non-trans and trans..... ]]]
Birth sex
Birth sex refers to the sex that is recorded or registered at the time of birth. This is identified by observation of the infant by a midwife, nurse or doctor or, in some instances, by clinical tests, before being recorded.
[ moved up ]
[ Variations in Sex Characteristics ]
[ specific paragraphs around biological issues of a physical/medical condition ]
Intersex, or v [ V]ariations in sex characteristics (VSC) [ (sometimes referred to as "intersex")¹ ] , are individuals born with any of several sex characteristics that do not fit typical binary notions of
[ no whimsical ideas needed here ]
male or female bodies [ . ]
but are assigned² male or female sex at birth.
[ ¹there is not third sex and the term usage is discouraged in the medical sphere but its explaining a term ]
[ ²UK medics dont assign sex anymore but there may be an actual error due to lack of medical testing etc ]
°°°°°°°°°°°°[New paragraph break needed ]
Their Intersex / VSC condition may present itself [ not be detected ] at birth or [ and ] may only become apparent later in life, for example during puberty, depending on the condition.
°°°°°°°°°°°°°[New paragraph break needed ]
[so the legal requirements in this area are??? : eg]
[ Birth sex registered at the time of birth may ..... ]
°°°°°°°°°°°°°[New paragraph break needed ]
Intersex p [ P ]eople [with a VSC condition ] may or may not see themselves as having a trans or non-binary gender identity.
[ Variations in Sex Characteristics and prosecution decision factors ]
[ The decision on whether to prosecute a person with a VSC must be based on the evidence in each individual case, but the following information is provided for background context, as it may assist prosecutors to make more informed decisions:
• Intersex / VSC persons may have particular difficulties in communicating their sex to potential sexual partners, as their gender/sex [ sex/gender ] presentation is inherently [ may be ] complex. The language required may not be readily understood unless explained in detail, which they may consider inappropriate.¹ ]
[ ¹The one person is about to engage in sexual activity with another person, what words are inappropriate when saying one has and what can or can not go where? ]
Gender incongruence and gender dysphoria
“Gender incongruence” refers to an incongruence or incompatibility between a person’s gender identity and their birth sex [ sex and gender ].
°°°°°°°°°°°°°[New paragraph break needed ]
“Gender dysphoria” is a medical diagnosis recognised by the NHS, where a person experiences discomfort or distress, which is related to the incongruity between their birth sex and their gender identity (this is not to suggest that every trans person experiences discomfort or distress). The NHS offers treatment to alleviate the distress, such as counselling, hormone therapy or [ gender reassignment ] surgery. Although gender dysphoria is not a mental illness [ it is classed as a mental health condition ].
[ thats rather important to make clear as mental health conditions comes with Duties ]
the sense of unease or dissatisfaction associated with gender dysphoria may be so intense it can lead to depression and anxiety and have a harmful impact on daily life
[ not relevant and advocating as staff are not quailfied medics so must get professional medical opinions if needing to decide MH issues are present and should be relevant to charging ]
°°°°°°°°°°°°°[New paragraph break needed ]
Where there is evidence that a suspect or defendant is suffering from a mental health condition or disorder, prosecutors should refer to the CPS guidance on Mental Health: Suspects and Defendants.
[[[ see why its rather important as Mental Health issues come with Legal Duties
Link starta off
Mental Health : Principles
This guidance identifies the principles relevant to the decision to prosecute,....etc. ]]]
[ Non-Trans ]
[ this is a catch-all term which the CPS will use were it is clear the only objective of the deception as to the sex of the suspect was to engage in sexual contact with a victim. In real terms the CPS can only establish this if the suspect rejects the belief that their birth sex differs from their gender identity ]
[ A person’s sex might be the same as their gender for clarity referred to in this guidance as “non-trans”. ]
[ This is sometimes referred to as “cisgender” ] ......
[ Non-trans is not the same as sexual orientation; non-trans people may consider themselves to be heterosexual, gay, lesbian, or bisexual. They may also use terms such as pansexual, asexual or aromantic, amongst others to describe their sexual orientation.
[ the UK only recognises 3 SO ]
[ Non-trans and prosecution decision factors ]
[ How a non-trans person experiences and expresses their gender can be a complex issue. The decision on whether to prosecute must be based on the evidence in each individual case, but the following information is provided for background context, as it may assist prosecutors to make more informed decisions: ]
[[[ What's good for the goose is good for the gander so what is applicable.
And as the lead case claims a non-trans offender why that classification decision was made should be explained here? ]]]
Trans and non-binary persons – identities sub-groups
We
[[[ personalised first party communicating to second party in a group that is a form of advocating plus the "apology" line included below.
And imo written by someone who could not replicate the construct of the original text so copy and paste and/or something else? ]]]
are aware that terminology and language used in relation to the recognition of people’s identity may depend on the context of its use. Some people may define some terms differently to us. We have tried to use terminology that is generally accepted. No offence or omission is intended.
[[[ NB HERE the CPS is setting the language words and terms so the CPS's staff is using the same meanings for words and putting the suspects in the right group to apply an agreed metric.
The term used is not too "important" it more a question has the person covered by the term a reasonable /rational story as to why they had or normally presents as the other sex or not.
That is not directly about consent its about intent of the suspect while trying to pass as the other sex. ]]]
[ A person’s sex might be different to their gender for clarity referred to in this guidance as “trans” ]
Transgender or trans is an overarching term used to describe people who have a gender identity that is different to their sex [ sex is different to their gender ] For example, a trans man is someone whose sex was recorded as female at birth but lives and identifies as a man; and a trans woman is someone whose sex was recorded as male at birth but lives and identifies as a woman.
Trans people may describe themselves using one or more of a wide variety of terms, including transgender, transsexual (even though many now consider this an outdated¹ term),
[[[ ¹this is stupid and unprofessional advocating by staff.
Its a LEGAL term with Legal Duties under the EA2010
^https://www.legislation.gov.uk/ukpga/2010/15/section/7^
7 Gender reassignment
(1)A person has the protected to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.
(2)A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.
(3)In relation to the protected characteristic of gender reassignment—
(a)a reference to a person who has a particular protected characteristic is a reference to a transsexual person;
(b)a reference to persons who share a protected characteristic is a reference to transsexual persons.]]]
agender (without gender), gender fluid (fluctuating between genders or not having a fixed gender) and genderqueer (often associated with a rejection or subversion of conventional gender categories).
Non-binary¹ people do not identify as a man or a woman but as both or neither. They may or may not consider themselves to be trans[ gender ].
[ ¹is only relevant when/if the person had changed gender "persentation". ]
[ Plus now the CPS can slot any other sub-group or term used when describing how birth sex may not be not know before any sexual contact happened ]
Gender identity is not the same as sexual orientation; trans people may consider themselves to be heterosexual, gay, lesbian, [ or ] bisexual, [ . ] They may also use terms such as pansexual, asexual or aromantic, amongst other[s to describe their ] sexual orientations.
[ the UK only recognises 3 SO ]
Trans and non-binary persons - experiences and prosecution decision factors
How a trans or non-binary person experiences and expresses their gender can be a complex issue. The decision on whether to prosecute must be based on the evidence in each individual case, but the following information is provided for background context, as it may assist prosecutors to make more informed decisions:
• Many people [ Some trans persons ] who have transitioned may not regard themselves as trans, but simply as a man or a woman.
• Gender identity can be fluid and/or emergent for some persons, particularly for young persons, who may be exploring the nature of their identity and/or sexuality, or for non-binary people, [ some persons, ] who may identify as a man and a women or neither.
• A person whose gender identity isn’t the same as their sex [ sex isn't the same as their gender ] may express their gender through their speech, dress, gestures, mannerisms etc, without this being a fabrication, a performance or a deception. (It is important to recognise that non-trans people may also have a multitude of ways to express themselves, even if their gender identity is the same as their sex [ sex is the same as their gender ] .)
• To acquire a Gender Recognition Certificate (see below), a person is required to live in the acquired gender for 2 years. To meet this condition, some may think it necessary to conceal their sex.
• Some trans people [ persons ] may be wary of revealing their birth sex due to social stigma, transphobia or safety considerations, which may produce high levels of anxiety.
[ advocating as staff are not quailfied medics and anxiety or not the person still needs to obtain consent ]
• Other [ Some ] trans persons may not openly identify as trans in everyday life, such as at home, at school or in the workplace [ . ] , for fear of a family or relationship breakdown, losing employment, or exclusion from a close-knit community or a place of worship
[ advocating as staff should be investigating if there is a reason or if the person should be classed as non-trans and the person still needs to obtain consent and same process as their sexual orientation this is "outing" themselves in that process ]
• Intersex / VSC persons may have particular difficulties in communicating their sex to potential sexual partners, as their gender/sex presentation is inherently complex. The language required may not be readily understood unless explained in detail, which they may consider inappropriate.
[ moved up to VCS section ]
Gender Recognition Certificate Act
The Gender Recognition Act 2004 (GRA) provides individuals with the opportunity to be legally recognised in their affirmed gender identity by obtaining a Gender Recognition Certificate (GRC).
Although [ However ] possession of a GRC is therefore unlikely to be relevant in most cases, where it may be a relevant evidential consideration, prosecutors should request information from the police. ]
[ this is the very important bit so should not be buried in the middle of the text. ]
Gender Recognition Certificate
Under section 9 GRA, where a GRC is issued, if the acquired gender identity is that of a man the individual is legally male and, if it is that of a woman, the individual is legally female i.e. their legal sex is changed to that of their acquired gender for all purposes, except for a number of circumstances¹ set out in the Act.
[[[ ¹lets see. yep, sex offences get a whole section
20 Gender-specific offences
(1)Where (apart from this subsection) a relevant gender-specific offence could be committed or attempted only if the gender of a person to whom a full gender recognition certificate has been issued were not the acquired gender, the fact that the person’s gender has become the acquired gender does not prevent the offence being committed or attempted.
(2)An offence is a “relevant gender-specific offence” if—
(a)either or both of the conditions in subsection (3) are satisfied, and
(b)the commission of the offence involves the accused engaging in sexual activity.
(3)The conditions are—
(a)that the offence may be committed only by a person of a particular gender, and
(b)that the offence may be committed only on, or in relation to, a person of a particular gender,
and the references to a particular gender include a gender identified by reference to the gender of the other person involved. ]]]
Many t [ T]rans people do [ may ] not obtain a GRC for various reasons, for example: persons under 18 and persons with gender identities outside the gender binary, including non-binary, are not eligible for a GRC; and some persons may not wish to obtain a medical diagnosis of gender dysphoria, a precondition for a GRC.
For these reasons, a [ A ] trans or non-binary person’s gender identity should not be considered inauthentic if they have not obtained a certificate.
Although possession of a GRC is therefore unlikely to be relevant in most cases, where it may be a relevant evidential consideration, prosecutors should request information from the police.
[ moved up ]
[ Gender Reassignment surgery ]
[ VSC were included so they need to cover persons who had gender reassignment surgery ( who may or may not be trans) to create body modifications so what sex acts were expected/discussed etc. plus its referenced below too. ]
Prohibition on disclosure of information and a Gender Recognition Certificate
Prosecutors should be aware that section 22 [ (1) ] of the GRA makes it an offence for a person who has obtained “protected information” in an official capacity to disclose that information to any other person [ without a lawful reason ] without the individual’s consent.
[[[ this is not just incorrect it is misleading there are other exceptions or CPS could not bring charges.
If one is quoting /referencing an Act's section number quote / apply them properly ]]]
Protected information [ per section 22 (2) ] is information about a person’s application for legal recognition of their affirmed gender or, if they have legal recognition, their history of transition.
°°°°°°°°°°°°°[New paragraph break needed ]
There are a number of exceptions to section 22 [ (1) ] and prosecutors should ensure the information is used only in these contexts, where applicable:
• [ S.22 (4)(b): that person has agreed to the disclosure of the information ]
• S.22 (4)(d): the disclosure is in accordance with an order of a court or tribunal
• S.22 (4)(e): the disclosure is for the purpose of instituting, or otherwise for the purposes of, proceedings before a court or tribunal
• S.22(4)(f): the disclosure is for the purpose of preventing or investigating crime.
Addressing trans persons - terminology
In accordance with the CPS Trans Equality Statement prosecutors should address trans [ complainants¹, ] victims, witnesses, suspects and defendants according to their affirmed gender and name, using that gender and related pronouns in all documentation and in the courtroom.
[ ¹the language will be specific and should read across paragraphs here McNally has a proven victim ]
However, as recognised in chapter 12 of the Equal Treatment Bench Book, there may be occasions where a person’s sex or their history of transition is relevant to the particular legal proceedings and so may be disclosed. There will also be situations where it is appropriate for a witness (for example, a victim of sexual violence or assault by a trans person) to refer to a trans person by pronouns matching their birth sex. In cases where deception as to sex is a live issue such disclosure will clearly be necessary.
[ Case law ]
R v McNally
The Court of Appeal in McNally v R [2013] EWCA Crim 1051 determined that “depending on the circumstances, deception as to gender can vitiate consent” [27]. McNally was a teenage girl who impersonated a teenage boy when engaging in various forms of penetrative activity with the complainant, during four separate meetings.
Under section 74 Sexual Offences Act 2003 a person consents to the relevant sexual activity if they agree by choice, and have the freedom and capacity to make that choice. In McNally, the complainant’s [ victim's¹ (??) ] consent was vitiated because she chose to have sexual encounters with a boy and her preference (her freedom to choose whether or not to have a sexual encounter with a girl) was removed by the appellant's deception [26].
[ ¹the language will be specific and should read across paragraphs here McNally has a proven victim ]
Application of McNally to trans and non-binary suspects
The defendant in McNally was not [ did not identify as ] trans or non-binary; she was female but presented as male. To date, there have been no cases considered by the appellate courts involving a trans or non-binary defendant that address this issue.
Although the court in McNally used the word “gender” with regard to the deception in question, it was probably referring to a deception as to sex, as there was no issue of “gender identity” in the case. However, as noted in R (Monica) v DPP (Boyling) [2018] EWHC 3508 (Admin) (see below), McNally could be analysed as an identity or impersonation case.
McNally is therefore authority for the proposition that a deliberate deception as to the defendant’s sex is so connected to the nature of the sexual activity that, depending on the circumstances, it is capable of vitiating consent.
It is arguable that McNally and the other authorities do not conclusively address the position in relation to trans and non-binary suspects. The question remains whether the sexual nature of the act is different where the complainant is deceived into believing that the defendant is not trans or non-binary; and, if so, whether different considerations apply.
Although impersonation / deception as to identity is a potential separate line of authority, this guidance necessarily focuses on deception as to sex [ of the suspect ], on which McNally provides a clear line of authority, pending any further clarification from the appellate courts.
[ i assume paragraph this is along the lines of person A consents to Person B and tricked int believing person C is person B, so person A never agreed to sexual activity with person C ??
Other case law
In Monica the Divisional Court conducted an extensive review of the existing case law. In a judgement handed down by Burnett LCJ, the Court accepted that there was no defined list of circumstances which were capable of vitiating consent for the purposes of section 74. The correct approach was derived from the following cases:
• Assange v Sweden [2011] EWHC 2849 (Admin): “What may be derived from Assange is that deception which is closely connected with ‘the nature or purpose of the act’, because it relates to sexual intercourse itself rather than the broad circumstances surrounding it, is capable of negating a complainant's free exercise of choice for the purposes of section 74 of the 2003 Act” [72].
• In R (F) v DPP [2013] EWHC 945 (Admin) Judge LCJ stated that “What Assange underlines is that “choice” is crucial to the issue of “consent” ... The evidence relating to “choice” and the “freedom” to make any particular choice must be approached in a broad common-sense way” [26]. In respect of R (F) Burnett LCJ commented, “Although there was no deception as to the nature and purpose of the sexual act, the deception was closely connected with it.”
• McNally: Burnett LCJ commented, “it is clear that the court was holding that the deception … did relate to the sexual nature of this activity.” He also agreed that McNally could be analysed as an identity or impersonation case, “given the centrality of an individual’s sexuality to her or his identity” [77].
The subsequent case of R v Lawrance [2020] EWCA Crim 971 qualified McNally in relation to the type of deception that is capable of vitiating consent.
The court in McNally characterised the appellant’s actions as a deliberate deception [26], having noted a distinction in case law between a failure to disclose and deliberate deception, in particular in R v B [2006] EWCA Crim 2945 (where a failure to disclose HIV status did not vitiate consent).
However, in Lawrance (where it was held that deception as to fertility did not vitiate consent), in giving judgment Burnett LCJ stated: “it makes no difference to the issue of consent whether, as in this case, there was an express deception or, as in the case of R v B, a failure to disclose” [41]. The court also observed that: “deceit and deception are very slippery concepts which, at one end of the spectrum, may result from a clear short lie, through more obscure utterances, obfuscation or evasion, to conduct designed to convey an unspoken false impression. In this area it is difficult to draw clear principled lines which could distinguish a deceit resulting from one course from another” [40].
From these authorities, the following principles emerge:
• For consent to be vitiated by a deception falling within section 74, the deception must be closely connected with the sexual act or the sexual nature of the activity rather than its consequences or the broader circumstances in which the sexual act takes place.
• Any novel circumstances must be considered by reference to the statutory definition, namely whether the alleged victim has agreed by choice and has the freedom and capacity to make that choice.
• Consent can be vitiated by an express deception or by a failure to disclose.
• Therefore, the test to be applied is whether a deception (however that deception is operated) is sufficiently closely connected to the performance of the sexual act that the complainant cannot be said to have made a free choice to participate in it.
Accordingly, the current principles to be applied in cases involving trans or non-binary suspects are:
• Depending upon the circumstances of the case, a trans or non-binary person (including those who have a GRC and / or have had gender reassignment) may deceive a complainant as to their sex if they choose not to disclose that they are trans / non-binary, or if they make a deliberate false assertion or lie in respect of their sex and / or gender identity.
[ bodies not identity have sex ]
• By reference to section 74, the test to be applied is whether the non-disclosure or representation is so closely connected with the sexual nature of the relevant act that it deprived the complainant of their freedom to choose whether to have sexual relations with the suspect.
Evidential considerations
The principles set out in this section apply to all cases, whether the suspect is non-trans, trans or non-binary.
The issues in a case involving an allegation of deception as to sex may vary. For example:
• A female non-trans suspect, who is alleged to have impersonated a male, may claim that the [ female ] complainant was a lesbian who consented to have sex with her, knowing the suspect [ she ] was female [ , complainant disputes it ] .
• A trans [ or non-trans ] suspect may claim that they [ he / she ] disclosed their [ his / her ] gender identity [ sex ] and / or sex [ gender ] to the complainant, who disputes it.
[ see how the rewording said the exact same thing? ]
• A non-trans or trans suspect may accept that there was no express disclosure but claim that the complainant must have known the suspect’s* *gender identity and / or sex, due to the suspect’s appearance and / or the nature of their relationship and communications.
• A non-trans or trans suspect may claim they reasonably believed that the complainant consented because the complainant attached no importance to the gender identity and / or sex of their sexual partners.
It may assist to consider the question of deception in three stages, even though these may overlap to various degrees, depending on the issues in the case:
- Was there a condition of the complainant’s choice or consent sufficiently closely connected with the sexual nature of the relevant act to be capable of depriving the complainant of freedom to choose? If so, consider the second question.
- Was the complainant deceived in relation to this condition and deprived of their freedom to choose, and therefore did not consent? If so, consider the third question.
- Did the suspect reasonably believe the complainant consented?
1. Was there a condition of the complainant’s choice or consent sufficiently closely connected with the sexual nature of the relevant act?
The condition
Freedom of choice will involve the ability of the complainant to agree to sexual encounters based on what they see as important. Therefore, prosecutors will need to ascertain whether the suspect’s sex and / or gender identity was a matter of importance to the complainant i.e. was it a condition of the complainant’s choice or consent? This may be expressly stated or inferred from all the facts.
For instance, a female complainant may choose to have sexual relations with only one of the following persons, or a combination of any of them (this list is not exhaustive):
• A person whose sex is male and gender identity is male (a non-trans man).
• A person whose sex is female and gender identity is female (a non-trans woman).
• A person whose sex is male but lives and identifies as female [ and gender is female ] (a trans woman).
• A person whose sex is female but lives and identifies as male [ and gender is male ] (a trans man).
• [ A person whose sex is male and gender is female and has had an operation to create female genitalia (a trans woman who has had gender reassignment surgery). ]
[ goose meet gander ]
• A person whose sex is female but lives and identifies as male [ and gender is male ] and has had an operation to create male genitalia (a trans man who has had gender reassignment surgery).
Closely connected with the sexual nature of the relevant act
The condition of importance to the complainant needs to be sufficiently closely connected with the sexual nature of the relevant act to be capable of depriving them of freedom to choose.
For instance, depending on the circumstances:
• If the complainant chose to have sexual relations with a person whose sex is male and gender identity is male i.e. a non-trans male, it is likely that this condition is sufficiently closely connected with the sexual nature of the relevant act.
• If the complainant asserts that they were prepared to have sexual relations with a trans person but only if they possessed a GRC, it is doubtful that such a condition is sufficiently closely connected with the sexual nature of the relevant act to be capable of depriving the complainant of freedom to choose, as it more likely relates to the broad circumstances surrounding it.
2. Was the complainant deceived in relation to this condition and deprived of their freedom to choose, and therefore did not consent?
Prosecutors should look for evidence relating to the complainant’s freedom of choice, and whether this was undermined.
Evidence that the suspect failed to disclose their sex and / or gender identity may be sufficient, depending on the circumstances of the case. But other evidence may be necessary.
The deception (whether by way of a lie, false assertion or failure to disclose) needs to relate to the condition of the complainant’s choice or consent. For example, if the complainant chose to have sexual relations with a trans man on condition that they had undergone gender reassignment, there may be a relevant deception if the trans man falsely asserts that he has had gender reassignment (or fails to disclose that he has not). Use of a prosthetic device of which the complainant is unaware would be further evidence of deceit of this nature.
There is no onus or responsibility on a complainant to confirm or discover the sex or gender identity of the suspect. What is relevant is the complainant’s actual knowledge or belief (or lack thereof) of the suspect’s sex and / or gender identity at the time of the alleged offending, rather than what the complainant might have discovered if they had made certain enquiries.
Even though there may be no disclosure or a false assertion or denial by the suspect, the complainant may nonetheless become aware of the sex and / or gender identity of the suspect, whether by way of shared experiences, communications, physical appearance and speech, or a combination of such factors.
The following factors may be relevant to these issues of deception and freedom to choose, together with any others identified on the facts of the case. Some factors clearly relate only to trans and non-binary suspects but most can be applied to all suspects:
• Whether the suspect targeted, manipulated or exploited the complainant, or exerted control or coercion during their relationship. This may result in the complainant being afraid to question or contradict the suspect, too willing to accept false assertions or denials, or fearful of losing love or affection. Where there is evidence of this nature, it is more likely that the suspect has deceived the complainant.
• The complainant’s particular characteristics and life experiences, and how these may have impacted on their relationship with the suspect and their understanding of the suspect’s gender identity or sex. For instance, a complainant who is young, immature, vulnerable, suffering from learning difficulties or neurological differences including autism, or inexperienced in sexual relationships, may more easily be deceived, especially where there is a disparity in age or maturity between the suspect and the complainant.
• An express false assertion or lie. This would include, for instance: a false assertion or lie relating to the suspect’s sex or history of transition; or a denial that the suspect is a trans man or a trans woman.
• Whether the suspect’s gender identity was different to their sex [ sex was different to their gender ] at the time of the alleged offence.
• Whether there has been gender reassignment treatment.
• The degree to which the sex or trans or non-binary identity [ gender ] of the suspect is apparent or otherwise.
• The attitude of the suspect to revealing their sex, includ