The Crown Prosecution Service (CPS) has today released a statement explaining that it will not be prosecuting undercover police officers for sexual offences having mislead political activists about their identity. This decision is highly inconsistent, given the CPS have previously successfully prosecuted trans folk for what they call identity “deception” when it comes to sexual relations.
The phrasing of today’s release either admits to transphobic prosecution decisions within the CPS (specifically, believing that trans identities are inauthentic) or admits that they believe Lord Leveson’s Court of Appeal judgement criminalising trans folk for sexual relations is incorrect. In his ruling on the McNally case, which was prosecuted by the CPS, Leveson stated that being trans was enough to invalidate consent to sexual acts, but the CPS now say: (Emphasis added)
In order to prove the offence of rape the prosecution must show that the complainant did not consent to sexual intercourse. In this case the Sexual Offences Act 1956 and the case law interpreting that Act is applicable, the effect of which is that consent can be negated if…there has been deception as to the identity of the suspect. The identity of the suspect is relevant to a very limited extent. Section 1(3) of the Act expressly provides that impersonating a woman’s husband may vitiate (negate) consent. This section was later extended by case law to include the impersonation of a person’s partner. The law does not go further and allow the fact that a person does not reveal their true or full identity to be capable of vitiating consent where it is otherwise freely given.
The CPS are hardly unaware of the McNally judgement, given the same release cites it and specifically refers to trans identities as “deception”:
R – v – McNally, where consent was negated on the basis that the victim believed she was having sex with a male partner, where in fact she was having sex with a female who had deceived her. In this case the Court of Appeal said that “depending on the circumstances, deception as to gender can vitiate consent”… but added: “in reality, some deceptions (such as, for example, in relation to wealth) will obviously not be sufficient to vitiate consent.”
No clarification is given as to why they think this case differs from the case of the undercover police officers, even though the CPS now know that the courts have decided that identity does matter.