The Cis-normativity of Consent in Deceptive Sexual Relations
- Juana de Leon
- Nov 22, 2022
- 42 min read
Updated: Mar 11
1. Introduction
The criminal law continues to grapple with the concept of ‘deceptive sex’ and struggles to draw the appropriate parameters around the provisions on consent contained within the Sexual Offences Act 2003 (henceforth, ‘the SOA’). Particularly notable in this regard have been cases involving ‘gender fraud’, wherein the defendant (D) is alleged to have deceived the complainant (V) as to their gender in order to procure sexual relations. This was found to be the case in R v McNally[1], where the Court of Appeal held that the sexual nature of the acts was different where the complainant was deliberately deceived by the defendant as to her biological sex; V’s freedom to exercise preference over the gender of their sexual partner was removed.[2] V’s consent was therefore vitiated. The language used in this case effectively characterises D’s failure to disclose gender history as a deliberate deception (writing, inter alia, that D ‘had lied to [V] for four years’[3]), and acutely raises this issue of consent: in what circumstances will D’s inaction be elevated to a finding of deception? As a corollary to this, in what circumstances are deceptions are sufficient to vitiate consent for the purposes of sexual offences? These are the questions with which this article seeks to contend.
They will be addressed in several parts. First, it will be found that the conceptual framework deployed by the courts in these cases, namely the distinction between active deception versus non-disclosure, cannot bear the analytical weight imposed upon it by the factual intricacies of the cases that have arisen thus far, and of those that will invariably arise in the future. The inadequacy of this binary is brought to the fore by McNally: the gaps in the court’s reasoning are haphazardly filled with cis-normative prejudices that cannot stand against conceptual scrutiny. It will be argued that the term ‘deception’ (that is, the act of deliberately causing (someone) to believe something that is not true, especially for personal gain) is not only inappropriate when applied to transgender defendants for ontological reasons, but also risks legitimising discrimination towards transgender individuals through the forum of the criminal law. The court’s prejudices are often clouded in repeated references to the need to protect the right to sexual autonomy. It is not disputed that this protection is a valid pursuit, however, the over-prioritisation of V’s sexual autonomy has led to a conflation of two analytically distinct questions, namely: (1) did V consent? and (2) did D possess a reasonable belief in V’s consent? These questions must remain separate such that due weight is given to the competing interests of D in privacy and self-preservation (particularly in cases involving transgender defendants).
Having exposed the inadequacies of the current model, Section 3 investigates a new conceptual framework upon which the law on sexual offences may be built. In this regard, the distinctions made by Matthew Gibson when he distinguishes between ‘principal sexual offences’ and ‘deceptive sexual relations’ prove highly instructive.[4] He observes that the latter are often criminalised under ‘principal sexual offences’, namely rape, sexual or indecent assault etc.[5] In his view, however, this poses a problem for fair labelling as, while deceptive sexual relations are equally harmful to a victim’s right to sexual autonomy as the relations proscribed by the principal sexual offences, they represent a different wrong.[6]He therefore advocates for the creation of separate deceptive sexual offences targeting penetrative and non-penetrative sexual relations.[7] Adopting this bifurcation, the model proposed in this article variegates deceptive sexual relations further into a tripartite taxonomy: relations resulting from an active deception, a passive deception, and a unilateral mistake by V. The courts, having already established that the first of these is sufficient to vitiate consent[8], have left the following task for the present enquiry: distinguishing between a passive deception and a unilateral mistake. It is argued that only the former can vitiate consent, arising either when D knowingly exploits a unilateral mistake by V to procure sexual relations, or when D is under an obligation to disclose certain information but fails to do so. As to the former, D’s knowledge and opportunism elevates V’s unilateral mistake to a passive deception. As to the latter, regarding the circumstances in which such an obligation may be generated, several possibilities are canvassed with a brief discussion about how the law may develop in the future. It is suggested that the materiality of certain facts to V’s consent should remain subjectively determined by V, but any obligation to make V aware of facts that may conflict with this materiality is contingent upon D’s actual knowledge, or a reasonable expectation that D have knowledge, of such materiality. This model departs from the court’s current approach in that it ensures that the expectation of D’s knowledge is conditioned not by cis-normative biases, but instead by an objective assessment of the facts and an introduction of the concept of ‘justifiability’.
