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August 15, 2022 7:51 pm

CPS Updates Guidance on Sex By Deception

The CPS guidance on consent and deception now reflects recent court decisions.

The CPS guidance on consent and deception now reflects recent court decisions.

Following recent controversial decisions regarding consent in rape and other sexual offence cases, an update of the Crown Prosecution Service’s Legal Guidance on section 74 of the Sexual Offences Act 2003 was inevitable. The new guidance takes into account the courts’ decisions in several cases, primary amongst them Assange and McNally.

The new guidance on “Conditional Consent” (the legal rule whereby a person has consented to sexual activity only where specific conditions are met, e.g. when a condom is used) requires that “all proposed decisions in conditional consent cases whether to charge or not – must be referred to the PLA for authorisation”. The PLA is the Principal Legal Advisor, essentially the head office of the CPS.

The new guidance does not alter the position of the CPS regarding prosecutions in cases where the gender identity of a trans* person is at the centre of the case. Indeed, the guidance follows the court’s decision in the McNally case to the letter, quoting the court verbatim:

Assuming the facts to be proved as alleged, M 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 appellants deception.

Views on whether the McNally decision has opened trans* people up to prosecution for having sex without fully disclosing their gender history to their partner (and thus potentially opening themselves up to violence and abuse) have varied.

Lib Dem activist and blogger Zoe O’Connell regarded the case as setting a precedent that allows the police to prosecute trans* people who have sex, stating “…if you’re trans and out yourself to someone prior to any sort of sexual act – even touching – then it would be best if you can prove it…”. Meanwhile, Conservative activist and T-Vox founder Zoe Kirk-Robinson took the view that “There’s nothing here that backs up a claim of that sort – but you can be sure that if the courts ever did lay down a decision like that, I would not be defending them.”

The new CPS guidance is available in full from the CPS website.

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