Gender identity fraud has become a distinct topic of sexual offending in recent years, and our team has developed a particular interest in the subject, stemming from a wider interest in representing the trans-community in the criminal justice system generally. These cases involve a person being criminalised and sent to prison as a sex offender for deceiving a sexual partner over their gender.
In law, a person consents to sexual activity if he or she agrees by choice, and has the freedom and capacity to make that choice. The legal focus therefore relates to choice and the quality of that choice; that consent must be given by free choice. Matters which vitiate that free choice will thus vitiate consent, and choice based on a deception is not a free choice.
This is said to be the 'common sense' position. It has also been said that some deceptions (such as in relation to wealth) will 'obviously' not be sufficient to vitiate consent. The variety and types of deception in advance of sexual relations will be endless, and it is said that the law can negotiate such issues by “broad common sense”. However, it might be thought far from clear why these distinctions are either common sense or obvious. Indeed, as soon as the law relies on so called ‘common sense’, problems surely lie in wait.
Difficult examples are easy to imagine. Would a lie about religious belief vitiate consent, if a religious fundamentalist said they would never have sex with a Christian? What about a lie relating to fidelity, if a partner would only have sex in a monogamous relationship? Deception as to sexual history throws up a myriad of concerns. Is consent vitiated by a lie about virginity? Or a previous homosexual relationship? Or a previous conviction for sexual offending? Is the consummation of a bigamous marriage a sexual offence if one party is unknowing? What about deceit as to future prospects? The line between silent non-disclosure and deception is often desperately thin.
Is the answer to any of this obvious or common sense? If any of these examples do not vitiate consent, then why not? Indeed, is a person engaging in sexual activity with another free to choose to refuse to be defined by or discriminated against because of their gender, or how another perceives their gender, even if so doing involves what that other perceives as a deception?
Yet the courts have found as recently as 2013 that the nature of the sexual act is, “on any common sense view”, different where the complainant is deliberately deceived by a defendant into believing that the latter is a male. There is a danger that this alleged common sense sounds somewhat heteronormative, and one might wonder whether, for example, the young trans-community who have been disproportionately affected by recent prosecutions would much agree.
The criminalisation of acts that are otherwise consensual because of a deceit by one of the actors is complicated and troubling. The freedom of informed choice may indeed go to the heart of a respectful, responsible sexual encounter. But, as one commentator recently wondered, “is it right to disown our desires because we are retrospectively disappointed?”
On analysis, it might be thought that the common law has come very close to creating a new offence of having sexual activity by deception. In this context, we can see that the only such actionable deceptions are those that ‘common sense’ tells us should be. This hardly has the quality of certainty usually requisite in our criminal law, even if it has the advantage of flexibility, as we grapple with establishing any sort of broad consensus on where the criminal lines should be drawn.
Certainly, the apparent willingness of the state to prosecute young LGBTQ people for gender identity fraud highlights an uncomfortable truth. Whilst we live in a world which broadly tolerates minor deception for sex, untruths about gender, whatever that may mean, will be a step too far. A person’s gender has apparently such a special quality that a deception, even unnoticed during the most intense physical intimacy, turns a private act of loving embrace into a profoundly serious crime, deserving of imprisonment and public shame. The effect on a complainant may be profound and long lasting, but to continue to expand and rely on the concept of the post-coital vitiation of consent in these cases risks inconsistency and uncertainty.