CPS’s proposed revision undermines informed consent

A public consultation by the CPS on a proposed revision to its legal guidance on Rape and Serious Sexual Offences (RASSO), Chapter 6: Consent, the section on Deception as to Gender closed on 18 December.

The stated aim of the guidance is to provide ‘predictability, transparency and consistency of decision making across the CPS’.

It is our view, however, that by conflating ‘sex’ and ‘gender identity’ and through the use of confused ideological language throughout, the guidance has the effect of promoting sex by deception and undermines the concept of informed consent.

This is Merched Cymru’s response to the consultation:

Question 1: Do you think that the language used is appropriate and sensitive to the issues addressed? If not, please identify concerns and share how it can be improved.

No. In your introduction, you state that ‘…in everyday use, sex and gender are often used interchangeably.’ We argue that this usage is erroneous. Sex is an objective, verifiable material reality. ‘Gender’ is a contested concept with no stable definition – certainly no definition that doesn’t rest on outdated sexist stereotypes. The CPS should not seek to compound this lack of clarity by cementing ‘gender’ or ‘gender identity’ as concepts in law.

The issue here is ‘sex by deception’. A person’s sense of gender identity, however strongly felt, makes no difference to their biological sex. A trans-identifying person will always be aware of their biological sex – the only reason for not being honest with a prospective sexual partner is a fear that they would then not consent to sex. There is a particular danger for same sex attracted women and girls for whom sex by deception exposes them to the risk of rape (penetration with a penis without consent) and pregnancy.

Question 2: When considering the factors that are relevant to prove deception and lack of consent, does the guidance strike the right balance between recognising the rights of trans persons to live fully in their new gender identity and the need not to put an undue onus on complainants to discover or confirm the gender status of the suspect?

No. No-one has a right to conceal their biological sex from a prospective partner. It flies in the face of the principles of personal boundaries and consent freely given. Gender identity is a widely contested concept and irrelevant to a person’s physical, sexed body. The guidance prioritises a trans person’s subjective sense of identity above the right of people to know the sex of prospective partners.

Question 3: Do you agree with the evidential considerations that prosecutors must consider? If not, please identify what should be added, removed, or amended.

No. How can a person’s belief in their gender identity be proved to be sufficiently genuine? A subjective sense of gender makes no difference to the material reality of a person’s biological sex.

Question 4: Do you agree with the three stages that should be considered when prosecutors are considering the question of deception as to gender?

The issue here is not the three stages, but the terminology and explanations included regarding gender identity, which are unverifiable. ‘How the suspect perceived their gender at the time of the offence…’ is irrelevant – their sex is a constant, immutable fact.

Ultimately, if a trans person has not told a sexual partner about their sex, then this can only be active and deliberate deception. A trans person’s right to privacy in most other areas of life should not extend to overriding the rights of others to make an informed choice about who they sleep with.

Question 5: Do you agree with the public interest factors that are listed?

The guidance on age and maturity should be in line with all other laws on the age of criminal responsibility.

Question 6: Are there any further factors in favour of prosecution that should be included?

The key issue regarding sex offences is the appallingly low reporting and conviction rates. Making the case for a suspect’s ‘gender identity’ to be seen as a possible mitigating factor in cases of rape and sexual assault can only further reduce reporting rates.

Question 7: Are there any further factors tending against prosecution that should be included?


Question 8: Do you have any other feedback you wish to share around how the revised guidance could be improved?

The conflation of the terms ‘sex’ and ‘gender’ makes this guidance incoherent and obscures the reality that it is sex by deception, not deception as to gender identity. We question your use of the ideological, scientifically inaccurate term ‘sex assigned at birth.’ Sex is observed – usually in utero – and recorded at birth. The use of this language derives from a distinct political stance and should be avoided by a public service.

We believe this guidance is confused and not fit for purpose and that it should be withdrawn.

Responses from the following organisations are also worth reading.