The recent case of Gayle Newland has thrown the topic of gender identity fraud back into the limelight, and is the latest in a series of cases in which a person has been criminalised and sent to prison as a sex offender for deceiving a sexual partner over their gender. The facts are unusual; Gayle Newland posed as male, Kye Fortune, in a long term relationship with a female, in which they met over a 100 times and had a sexual encounter around 10 times. The complainant had been persuaded always to wear a blindfold. All was happy until the complainant in one encounter tore off her blindfold and discovered that Kye Fortune was really Gayle Newland. It was a complex, lengthy and sustained deception, and the court found that the complainant had not consented to the sexual activity because although a fully willing participant, her consent and been vitiated by the deception. He was a she.
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. There are other legal presumptions that set out circumstances where there will not or may not be consent, such as where the victim is asleep, subjected to violence or unlawfully detained. Consent will also be vitiated when there is a fraud as to the nature or purpose of the relevant act, although this has generally been held to relate to matters such as fake medical procedures rather than gender identity fraud.
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. Put simply, the female chose to have sex with a male called Kye, not a girl called Gayle.
This is said to be the “common sense” position. It was also 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 sexual act is, “on any commonsense 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 (even if both adults freely chose to do something that is neither respectful nor responsible). 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 rape and sexual assault charges risks inconsistency, uncertainty and injustice.
Partner and Head of The Crime Team at Mowbrays
 S.74 of the Sexual Offences Act 2003
 Such was the decided position in R v McNally  EWCA Crim 1051
 McNally at para.26
 McNally at para.25
 McNally at para.25
 Alex Sharp, Barrister and Professor of Law, Keele University at https://theconversation.com/gayle-newland-and-the-problem-of-equating-ignorance-with-non-consent-80407
 For further discussion see Assange v Swedish Judicial Authority  EWHC 2849 (Admin), p79-91 regarding the failure to use a condom and the apparent difference between silence and deception. See also R v EB  EWCA Crim 2945 in which LJ Latham (Vice President), at p20, opines that a tailor made charge of deception in relation to particular sexual activity, rather than using an offence of rape, should be a matter of proper public debate.