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Can gender negate consent?

Omar Madhloom discusses the problems posed for solicitors advising transgender clients Defence solicitors need to take extra measures to effectively advise transgender clients who have been charged with any of the offences contained in sections 1 to 4 of the Sexual Offences Act 2003 (SOA 2003).  The leading authority on the issue of whether gender vitiates consent under section 74 of the SOA 2003 is the case of R v McNally (Justine) [2014]. Section 74 defines consent in these terms: “A person consents if he agrees by choice and has the freedom and capacity to make that choice.” The issues before the Court of Appeal were whether the defendant could properly have been found guilty of assault by penetration, and also whether she had been advised properly in relation to the relevant legal elements when deciding to plead guilty. The appeal against the conviction was dismissed, while the appeal against the sentence was allowed. The defendant, a girl, had engaged in sexual activity with another girl while claiming to be a boy.  Considering consent The court followed Lord Judge CJ’s observation in R (F) v Director of Public Prosecutions [2014] that “the evidence relating to ‘choice’ and the ‘freedom’ to make any particular choice must be approached in a broad common-sense way”. Leaving the issue of ‘choice’ and ‘freedom’ to the jury to determine ‘in a broad common-sense way’ risks creating uncertainty in terms of accurately advising defendants due to the fact that it is a subjective test. Consequently, cases with similar facts may be decided differently by different juries.  The court fails to take into account that ‘choice’ and ‘freedom’ are philosophical concepts that are capable of having a variety of meanings. The circumstances in which gender could vitiate consent under section 74 SOA 2003, were not clarified: according to the court, deceptions as to gender could abate consent ‘depending on the circumstances’.  ‘Active deception’ The court failed to provide legal certainty other than stating that active deception was a requirement in order to vitiate consent. Moreover, the court failed to give guidance on what  is meant by ‘active deception’. Uncertainty is further compounded by the fact that, other than deceptions as to wealth, the court did not give further guidance on the type of deceptions which do not negate consent. This oversight, together with the fact that the court distinguished the case of R v B [2007] on the basis that HIV status can vitiate consent, provided the complainant was positively assured that the defendant was not HIV positive.  The impact of the concept of active deception means that defence solicitors need to ask their clients whether the complainant had asked the relevant question before their consent can be vitiated. According to the court, deceptions as to gender may not always nullify consent, but the statement that they may do so ‘depending on the circumstances’ suggests that the characteristics of both the defendant and the complainant may be relevant factors.  Following the court’s decision, defence solicitors will need to take into account the characteristics of their clients, with regards to how they perceive their gender and any steps they have taken to acquire their new gender (such as their positions in relation to the Gender Recognition Act 2004).  The nature and duration of the relationship may also be relevant because, although the defendant in McNally had not actively deceived the complainant in the strictest sense of the word, she had misled the complainant over an extended period of time. Thus, a complainant could be said not to have consented under section 74 where her supposedly unmarried sexual partner removes his wedding ring when meeting her.  Nature of act The court did not specify whether the complainant’s mistake as to the defendant’s gender negated her consent or whether the defendant had deceived her as to the nature of the act (section 76(2)(a) of the SOA 2003). It is to be conclusively presumed that the complainant did not consent to the relevant act and the defendant did not believe the complainant consented where ‘the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act’ (section 76(2)(a)).    Thus, if section 76(2) was relied on, then the defendant was not properly advised to plead guilty. The physical acts of digital penetration were exactly the acts which were agreed to by the complainant. The issue of gender should fall within the ambit of section 76(2), and the issue of whether the defendant actively deceived the complainant is one for the prosecution to prove beyond reasonable doubt. SJ

17 November 2014

Omar Madhloom is a consultant with Hanson Young Solicitors and a lecturer in law at De
Montfort University

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