Does ‘Gender Deception’ Invalidate Sexual Consent in New South Wales?

Between the years of 2012 and 2017, a string of cases in the United Kingdom involved determinations regarding whether a complainant could assert they did not lawfully consent to sexual activity as they were deceived into believing the other participant was of born biological status other than that which they portrayed.

The cases resulted in successful prosecutions of a cross dressing cis woman and trans men for the crime of sexual assault (or related charges) on the basis of “gender deception”.

Terminology

It’s important first to clarify some terminology on the distinction between ‘transgender’ and ‘cisgender’.

‘Cisgender’ (or ‘cis’) is used to describe a person whose gender identity matches the sex they were assigned on a biological basis at birth. For example, someone who was assigned biologically female at birth (AFAB) and identifies as a woman is a cisgender woman. 

On the other hand, an AFAB person who identifies as a man is a ‘transgender’ man, as there is a difference between biological sex assigned at birth and gender identity.

‘Gender deception’ is a term that can describe situations where a person portrays themselves as, and by their acts or omissions, presents themselves to another person as being of a gender that is not consistent with the sex they were assigned at birth.

The cases

In the 2012 case of R v Justine McNally, a Scottish student who was assigned female at birth (McNally) and retained that gender identity, presented as a boy named Scott during online conversations with a girl living in London; ultimately with a view to procuring a lesbian relationship by deceiving the girl into believing she was a boy.

After several years of an online relationship forming, the two met up in London when McNally was 17 and the girl was 16, and the meetings continued thereafter.

Sexual activity occurred between the two, with McNally utilising a dildo to simulate a penis on one encounter. McNally eventually confessed that they were born female, which deeply upset the girl who considered herself heterosexual. When the girl disclosed the betrayal to her school principal, the police became involved and charged McNally.

McNally pled guilty to six counts of assault by penetration and was sentenced to 3 years detention in a young offender institution.  

However, McNally was successful in appealing against the severity of the sentence – which was reduced 9 months in a youth detention centre, suspended for a period of 2 years – and a supervision order for 2 years.

During the appeal hearing, Lord Justice Leveson remarked that:

“ [W]hile, in a physical sense, the acts of assault by penetration of the vagina are the same whether perpetrated by a male or a female, the sexual nature of the acts is, on any common sense view, different where the complainant is deliberately deceived by a defendant into believing that the latter is a male. Assuming the facts to be proved as alleged, M chose to have sexual encounters with a boy and her preference (her freedom to choose whether or not to have a sexual encounter with a girl) was removed by the appellant’s deception.”

McNally is but one of a string of “gender deception” cases in the United Kingdom.

Another 2012 case

Also in 2012, a 19-year-old cis woman named Gemma Barker was convicted of sexual assault and fraud for engaging in sexual relationships with a number of teenage girls whilst posing as a boy. 

Baker had cultivated this persona via conversations with the girls on Facebook. Baker was sentenced to 30 months’ imprisonment.

2013

In 2013 a Scottish trans man named Chris Wilson was successful prosecuted for “’obtaining sexual intimacy by fraud” for actions which occurred in 2008. 

Wilson impersonated a 17-year-old cis man when he was 21 years old and engaged in sexual relationships with two 15-year-old girls. Whilst he could have been charged with engaging in sexual relations with a persons under the age of consent, the case was instead made on the basis he “lied about his gender”. Wilson received a sentence of three months’ probation and a 240 hour community service order.

2015

In another cass, a trans man named Kyran Lee was successfully prosecuted in 2015 for having sex with a woman he met online to which he did not disclose his trans status. Lee would stay fully clothed during sexual encounters and utilise a sex toy. He was given a two-year suspended prison sentence. 

2017

And finally, a cis woman Gayle Newland was convicted in 2017 of three counts of sexual assault by penetration over sexual encounters with a fellow university student in which she posed as her fictional online male persona “Kye Fortune”. 

Newland would have the complainant wear a blindfold during sex and utilise a prosthetic penis to facilitate the deception. 

She was sentenced to six years’ imprisonment.

Applying sexual consent laws in New South Wales

There have been no prosecutions in Australia for sexual offences on the basis that a person has not disclosed their trans status or their sex assigned at both prior to sex. 

As such, the following analysis can only note some of the possible provisions under the Crimes Act 1900 (NSW) that may apply in such circumstances.

Section 61HI(1) of the Act sets out that a person consents to sexual activity if they “freely and voluntarily agree” to the activity. 

Under the Act, consent can be withdrawn at any time and consent to sexual activity on one occasion is not taken as amounting to consent on another. 

New sexual consent laws in New South Wales also introduce the requirement of “affirmative consent”, imposing a positive obligation on participants to take active steps to ensure that consent to each type of ensuing sexual activity is obtained before it occurs.

Engaging in sexual activity without the consent of all parties can give rise to criminal culpability for:

• Sexual assault under section 61I of the Act, which carries a maximum penalty of 14 years in prison,
• Aggravated sexual assault under section 61J, which carries a maximum of 20 years,
• Aggravated sexual assault in company under section 61JA, which carries a maximum of life in prison,
• Sexual touching under section 61KC, which carries a maximum of 5 years,
• Aggravated sexual touching under section 61KD, which carries a maximum of 7 years,
• Sexual act under section 61KE, which carries a maximum of 18 months, and
• Aggravated sexual act under section 61KF, which carries a maximum of 3 years.

Fraudulent inducement negates consent

“Gender deception” in the UK follows a well-established common law doctrine that sexual consent is vitiated (or negated, or does not exist) in circumstances where consent was obtained by a mistaken belief, or induced by fraudulent conduct.

This doctrine has been codified by legislation in the New South Wales Crimes Act, section 61HJ of the Act of which stipulates that a participant’s ostensible consent is negated if the sexual activity occurred because:

• He or she was mistaken about the nature of the sexual activity or the purpose of the sexual activity, including about whether the sexual activity was for health, hygienic or cosmetic purposes [s61HJ(h)].
• He or she was mistaken about the identity of the other person, or that the person was married to the other person [s61HJ(j)].
• Of a fraudulent inducement [s61HJ(k)].

The phrase, “mistaken about the nature of the sexual activity or the purpose of the sexual activity” has traditionally encompassed circumstances where sexual activity was consented to under the belief it was performed for a non-sexual purpose.  

For example, in the early British case of R v Williams, a teenage girl agreed to sexual intercourse with her singing teaching under the mistaken belief that what was occurring was actually a technique to improve her singing. On appeal, the singing teacher’s conviction was upheld on the basis that her mistaken belief about the nature of the act vitiated her consent.

Being “mistaken about the identity of the other person” has tended to involve cases where a person believes they are having sex with one person, but are actually having sex with somebody else (R v Jackson). “Identity” within this provision has not traditionally referred to particular qualities like gender identity or genitalia.

The kinds of “fraudulent inducements” negating consent that have been recognised under Australian case law usually involve an active deception such as giving an empty envelope to a sex worker in exchange for sex (R v Livas) or impersonating a police officer (Michael v Western Australia).

Whether failure to disclose trans status could amount to a “fraudulent inducement” under the Act remains unclear. 

This is similar to the legal ambiguity around disclosure of HIV positive status before sexual intercourse. In their analysis of an older variant the Act related to a mistaken belief “induced by fraudulent means” the HIV/AID Legal Centre in 2009 argued:

“It is conceivable that where a person consents to sexual intercourse and the other person knew that they were HIV positive but did not disclose this fact, such non-disclosure could be held to vitiate the consent given, resulting in a potential charge of sexual assault.”

It is yet to be determined by a New South Wales court of law whether “gender deception” would vitiate consent to sexual activity, and if so, the nature and degree of conduct that would amount to a “fraudulent inducement”; something which, no doubt, would depend on all of the factual circumstances of the case before the court.

Going to court over a sexual allegation?

If you or a loved-one has been accused of a sexual offence, call Sydney Criminal Lawyers anytime on (02) 9261 8881 to arrange a conference with an experienced criminal defence lawyer with specialist knowledge of the laws, practices and procedures relating to these types of offences, including the defences that may be available, and who will provide accurate advice on the law and the best way forward, and fight for the optimal outcome.