“We recognise this is a highly sensitive area of law."
The Crown Prosecution Service (CPS) has published updated guidance on when deceiving someone or failing to disclose birth sex could affect consent in rape cases.
The new deception as to sex guidance will assist prosecutors in their decision-making in this complex area of law.
According to the law, there is no difference between the deliberate deception about birth sex and a failure to disclose birth sex.
The guidance is in line with the law on consent. Charges will depend on whether a victim knew about the person’s birth sex and therefore consented to sexual activity by choice.
The suspect must also have reasonably believed consent had been given.
It also explains that a suspect may choose not to disclose their birth sex or transgender identity to a complainant, and there is no obligation for the complainant to verify the defendant’s sex before engaging in sexual activity.
Not every instance where a transgender or non-binary person does not disclose their sex will constitute a criminal offence; each case will be evaluated individually.
Prosecutors receive guidance on the evidential considerations for these cases, including situations involving transgender or non-binary suspects.
The guidance covers relevant case law and explains how failing to disclose one’s sex could impact the issue of consent.
Siobhan Blake, Chief Crown Prosecutor and national lead for rape and serious sexual offences, said:
“We recognise this is a highly sensitive area of law.
“It is important our guidance provides prosecutors with the knowledge they need to make decisions in the rare cases where deception as to sex may have occurred.
“Importantly, this guidance also clarifies the law where suspects are non-trans such as females pretending to be male and vice versa.
“Every prosecutor has a duty to act with impartiality.
“Each case is always assessed on its individual merits, so we make fair and objective decisions”
The updated guidance provides prosecutors with background information on transgender and non-binary individuals to support informed decision-making.
Additionally, the language has been revised to align with current social terminology.
The CPS has also updated the guidance title to clarify that this area of law is based on a person’s sex rather than their gender identity.
This revised guidance is now part of the CPS’s Rape and Sexual Offences prosecution framework.
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