WPUK evidence to the CPS Consultation: Gender deception, Rape & Serious Sexual Offences
WPUK evidence to the CPS Consultation: Gender deception, Rape & Serious Sexual Offences (RASSO), submitted December 2022.
The CPS consultation refers to a proposed revision to its legal guidance on Rape and Serious Sexual Offences (RASSO), specifically Chapter 6: Consent, the section on Deception as to Gender. The proposed revision is intended to provide guidance to prosecutors when dealing with cases in which deception as to gender is a live issue.
Since submitting our evidence the CPS states:
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Since submitting our evidence, jurors found Blade Silvano guilty of two counts of assault by penetration. Silvano concealed her sex. Her victim stated: “I believe that I was having a sexual relationship with a man I have now found out to be female, which I have not consented to.’ We welcome this ruling.
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.
1 The WPUK evidence to the CPS is that the language used is ideologically driven. For example, ‘sex’ is not ‘assigned’ at birth – it is observed and recorded [1]. We believe that this language is used to imply that sex is incidental or frequently inaccurate. In reality sex is hugely important in law, impacts hugely on criminal behaviour and victim profile.
2 The language used is legally unclear. A legal test can not be confidently or consistently applied when terms are broad and subjective. For example:
“Trans” is an umbrella term to describe people whose gender is not the same as, or does not sit comfortably with, the sex they were assigned at birth. Trans people may describe themselves using one or more of a wide variety of terms, including (but not limited to) transgender, agender, gender fluid, non-binary and genderqueer.
According to this extract, a person who rejects sexist stereotypes could be included under this nebulous category.
3 Sex and gender should not be conflated in law [2] [3]. ‘Gender’ is understood as a subjective notion with no clear definition, whereas ‘sex’ is clear, objective, commonly understood and measurable. A person’s sex is a key indicator in the likelihood of perpetrating sexual offences (male) [4] and a key indicator in the likelihood of being subjected to a sexual offence (female) [5]. It is also key in the definition of ‘rape’ itself [6].
4 Conviction rates for rape and sexual offences are vanishingly low [7]. It is our belief that confusing language and legislation will create additional barriers to victims reporting assault. A lack of legal clarity may also impact advice given by support services and the police.
5 Confusing and vague language will inevitably impact on the number of cases identified as meeting the legal threshold by the CPS for prosecution.
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
6 The WPUK evidence to the CPS is that the guidance on consent is at odds with the sexual offences Act 2003, section 74 [8], “if he agrees by choice, and has the freedom and capacity to make that choice”.
Prosecutors should consider this in two stages. They are:
(i) Whether a complainant had the capacity (i.e. the age and understanding) to make a choice about whether or not to take part in the sexual activity at the time in question.
(ii) Whether he or she was in a position to make that choice freely, and was not constrained in any way.
Assuming that the complainant had both the freedom and capacity to consent, the crucial question is whether the complainant agrees to the activity by choice.
A victim can not give informed consent when they are not informed of a person’s sex, or when that person has actively misrepresented their sex.
If an offender has obscured the information that would enable the victim to make a choice in whether or not to take part in consensual sexual activity– that is a lie and a deception. The consent issue is and should always be vitiated [9].
7 It strikes entirely the wrong tone and is the wrong direction of travel. When victim/survivor advocates are promoting consent to be actively strengthened in law (affirmative consent), this guidance is effectively weakening the need for consent. Adding broad legal scenarios where full consent is not legally required it places the protection of the offender ahead of the victim.
8 In addition, given that the majority of sexual offenders are male, and the majority of victim/survivors are female, it is likely that such legal changes would be discriminatory on the basis of sex.
9 Furthermore a likely scenario would be males expressing a transgender identity concealing their sex from lesbian women. Research by Get The L Out shows that lesbians are routinely being coerced into sexual relations with males identifying as transwomen [10].
10 Rape/sexual assault is a human rights violation [11]. The law must prioritise protecting women and men from rape/sexual assault, rather than promote a notion of ‘right to have sex’. No one has the right to have sex at the expense of another’s right to live free of sexual violation. In this respect there is no ‘balance’ to be achieved.
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.
11 The guidance places legal weight to the subjective tests on the behaviour of offenders identifying as transgender. Both men and women have the right in law to express themselves through performing stereotypes associated with the opposite sex. This is quite right. But this does not, and can not extend to the right to have sexual relationships when concealing their true sex. A GRC in itself is a ‘legal fiction’, so therefore completely at odds with legal and social notions of informed consent in relation to sexual activity. This undermines the ability for the criminal justice system to advocate and prosecute against sex offenders by embedding active deception into a legal defence. For example, the section regarding deception states:
How the suspect perceived their gender at the time of the offence can be a complex issue. The following matters should be borne in mind
Gender identity can be fluid and/or emergent for some persons, particularly young persons, who may explore the nature of their identity and/or sexuality.
A person whose gender identity isn’t the same as their sex assigned at birth may express their gender through their speech, dress, gestures, mannerisms etc, without regarding this as a fabrication, a performance or a deception.
Some trans people may not always be living in their true gender identity due to safety considerations.
A person who presents as a particular gender at the time of the alleged offence may subsequently revert to their sex assigned at birth when an allegation is made against them. Any apparent reversion may be for numerous reasons including, but not limited to, pressure to conform to social norms.
12 Most concerning is this last statement:
A person who presents as a particular gender at the time of the alleged offence may subsequently revert to their sex assigned at birth when an allegation is made against them. Any apparent reversion may be for numerous reasons including, but not limited to, pressure to conform to social norms.
This seems to suggest that a survivor/victim reporting their rape could harm a trans person’s status. This is a bizarre approach that is perpetrator centred as opposed to victim centred. It also removes the ability of the CPS/ victims/ authorities to challenge an offender if they express a trans identity during trial/ incarceration [12] but in no other aspect of their lives. In effect, this element of the guidance extends the definition of trans to those who are by all understanding, living as their own sex.
13 The guidance pays no due regard to how the revised guidance on sex by deception could be used as a defence by sexual offenders, purposefully using this guidance as a legal shelter in order to perpetrate against victims. We know that sexual offenders are manipulative and obscure justice far too often, this guidance enables a new avenue for them to evade prosecution.
14 The guidance is victim-blaming and contradicts recent anti-victim blaming guidance published by the CPS [13]. It states that victims would be denied justice if the following can be tested:
Is there any evidence that the complainant was exploring their own sexuality at the time of the alleged offending?
This is victim blaming and a regressive notion that a victim/survivor is responsible for the crime of sexual assault/rape against them. The only important legal test is consent. If a person’s sex has been hidden or actively misrepresented then consent has not, by definition been obtained.
15 This advice is also discriminatory on the basis of sexual orientation, meaning that gay men and lesbians could be denied legal protection on the basis of their orientation. It gives ‘gender identity’ precedence over sexual orientation.
16 This also conflates sex and gender. Being lesbian, gay, or bisexual is related to the sex of their chosen partner. It is not related to gender identity.
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 question of deception can be considered in three stages:
Firstly, has there been active or deliberate deception by the suspect? If not, the deception will not fall within the scope of s74 of the Act and consent will not be vitiated. However, if there is a deliberate deception, consider the second question.
17 Lying about or not disclosing to a victim the knowledge of your biological sex is both an active and deliberate deception. For sex to be consensual the suspect must not rely on assumption to gain full informed consent to sex/sexual activity. This should be the legal bar for ALL sexual activity. There should be no exceptions.
Secondly, has the complainant deceived and therefore did not consent? If so, consider the third question.
18 See answer 17.
Thirdly, did the suspect reasonably believe the complainant consented?
19 If the suspect has knowingly omitted or misrepresented their sex then clearly they can not belive that the victim was able to consent. Consent should not be assumed.
20 The guidance goes on to explain the test for reasonable belief that the victim consented includes:
Where there is evidence of coercion, manipulation, or exploitation of the complainant, it is less likely that the suspect held a reasonable belief.
Not disclosing the full details of your observed sex is deception in itself. Any consensual partner has the right to understand who they are intimate with. Any deception inherently involves coercion, manipulation and exploitation.
21 The guidance goes on to state:
However, there may be very limited circumstances where, despite the suspect deceiving the complainant, the defendant reasonably believes the complainant consents to the activity. For instance, the suspect may believe that the complainant is initially deceived as to the suspect’s gender but, because of the long passage of time between the initial deception and the sexual activity, during which the suspect and complainant meet and interact on numerous occasions, by the time the sexual activity takes place the suspect reasonably believes that the deception no longer operates on the complainant.
Offenders will often form long-term relationships with their victims before they perpetrate sexual violence. This is the nature and definition of grooming. A process that reduces the capacity and autonomy of victim’s choices. The guidance here undermines all progress that has been made on identifying and prosecuting those engaging in child or adult grooming [14]. It enables offenders to take a longer course of manipulation and grooming tactics and then claim defence for it.
This extract undermines public interest. Eg:
A prosecution will usually be in the public interest where:
(i) The suspect exploits, coerces, threatens, manipulates or grooms the victim.
(ii) There is an abuse of trust.
Question 5: Do you agree with the public interest factors that are listed?
No
22 The steps the suspect has taken to live consistent with their gender identity, including whether they have obtained or taken steps to obtain a GRC, depending on eligibility and context.
The guidance does not make the case as to why this is relevant.
23 What is the nature and level of the relevant sexual activity?
Rape or sexual assault is not defined by nature or level.
24 What is the nature and duration of any relationship between the suspect and complainant? The longer the deception practiced on the victim, the more serious the offending.
This contradicts earlier guidance. See our point 19.
25 What are the relative ages and maturity of the suspect and complainant i.e. is there a significant disparity in age or maturity?
Victims and suspects span all ages. It is in the public interest to prosecute offenders of any age, even if that is exactly the same age as the victim. We ask for the law re age of consent to be upheld.
Question 6: Are there any further factors in favour of prosecution that should be included?
26 We object to this question. The case has already been made in law as to why rape and sexual assault are considered crimes and why they fall under the remit of the criminal justice system. In the context of unacceptably low prosecutions you should not be advocating for effectively downgrading or even decriminalising sexual offences because the perpetrator self describes as having a trans identity.
Question 7: Are there any further factors tending against prosecution that should be included?
No
Question 8: Do you have any other feedback you wish to share around how the revised guidance could be improved?
27 In summary it is the evidence of WPUK that this guidance is not fit for purpose. It erases the victim, embeds rape myths and victim blaming and creates legal vagaries which we believe perpetrators will exploit.
28 It is disappointing that the CPS is dedicating time and resources drafting proposals that will weaken legislation, add confusion around grooming and consent and consequently impact CPS prosecutions. The failure of the CPS to adequately prosecute sexual offences is well documented [15][16] and these guidelines will only compound this.
29 As previously stated, the CPS is aware that sexual perpetrators are overwhelmingly male and and victims of sexual crime are overwhelmingly female. As such it is important that the sex of offenders and victims are accurately recorded [17][18]. We would recommend that both gender identity and sex are recorded to enable accurate data. Women may be charged with rape as accessories, but this is extremely rare. Only a very small proportion of offenders directly charged with rape or attempted rape would therefore need to be recorded as female to have a substantial and misleading effect on the understanding of female offending. It is important this data is collected to ensure future policy proposals by the CPS are effective.
30 The CPS should be reminded of the findings by Dame Vera Baird, Victim’s Commissioner for England and Wales and the instructions stemming from the Government’s ‘End to end review report on findings and actions’ [19] to increase their prosecutions to pre 2016 levels. A commitment not yet fulfilled and will become only more elusive if these proposals are adopted.
31 Referring to the significant drop in prosecutions for rape and sexual offences Dame Vera Baird states:
“We are once more provided with yet further evidence – as if any more was needed – that the root of the problem lies at the door of the CPS. It also further brings into question when and how the government will exercise some accountability over the CPS, an organisation that has rightly been publicly pilloried again and again for betraying victims of this heinous crime.”
Dame Vera Baird
The WPUK evidence to CPS: we hope that the CPS does not continue in their betrayal of victims by adopting these or similar guidelines.v
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About Woman’s Place UK
Winner of the Emma Humphreys Memorial Group Prize 2018.
WPUK is a grassroots feminist campaign, formed by a group of women in the labour and trade union movement to uphold women’s sex-based rights under the Equality Act 2010.
Woman’s Place UK has organised 31 public meetings, 11 webinars and two conferences. These events have been hugely popular with over 15,000 tickets booked across the UK and globally.
[2] The Political Erasure of Sex Exec Summary
[3] The Political Erasure of Sex Full Report
[4] Nature of sexual assault by rape or penetration, England and Wales: year ending March 2020
[5] Nature of sexual assault by rape or penetration, England and Wales: year ending March 2020
[6] Rape – Sexual Offences Act 2003
[8] Sexual Offences Act 2003, Section 74
[9] What is Consent? | The Crown Prosecution Service
[10] Get The L Out: Lesbians at ground zero report
[12] Trans prisoners ‘switch gender again’ once freed from women’s units | Scotland | The Sunday Times
[14] Met police advice grooming and exploitation
[15] EVAW launches legal action against CPS for failure to prosecute rape
[16] CPS accused of betraying rape victims as prosecutions hit record low
[17] UK police record male rapists as female under self-ID policy
[18] PE1876: Accurately record the sex of people charged or convicted of rape or attempted rape
[19] The end-to-end rape review report on findings and actions
[20] CPS accused of betraying rape victims as prosecutions hit record low
We believe that it is important to share a range of viewpoints on women’s rights and advancement from different perspectives. WPUK does not necessarily agree or endorse all the views that we share.