Crown Prosecution Service
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CPS seeks public’s views on draft 'Deception as to Gender' legal guidance

public consultation on updated legal guidance regarding deception as to gender in rape and serious sexual assault cases has been launched by the Crown Prosecution Service today.

The draft guidance reflects the case law on deception as to gender and whether it could affect consent and addresses the issue where a suspect’s gender identity differs from the sex they were assigned at birth.

Siobhan Blake, CPS lead for rape and serious sexual assault said:

“Cases where the issue of deception as to gender is a factor are rare, but they involve complex and sensitive decision-making. It is important that our prosecutors have access to the latest case law when considering whether the threshold for criminal charges has been met. While every case must be decided on its own specific facts, we want to be transparent in setting out the factors that should be considered.

“Our draft guidance has already benefited from the input of a number of interested groups, but we want the final product to be informed by as wide a range of views as possible. We are inviting comments to make sure that it strikes the right balance, so we can meet our obligations to be fair to both victims and suspects.”

When finalised, the draft guidance will update one chapter of the guidance for prosecutors on rape and sexual offences, which was comprehensively revised last year.

It sets out relevant information that must be considered when weighing up evidential and public interest factors. Prosecutors are asked to consider the evidence and circumstances of the alleged assault to determine whether the complainant has been deceived, using a three-stage approach:

  1. Has there been active or deliberate deception by the suspect?
  2. Was the complainant deceived and therefore did not consent?
  3. Did the suspect reasonably believe the complainant consented?

Prosecutors are asked to consider issues such as how the suspect perceived their gender at the time of the offence and assess whether there has been an active or deliberate deception. This involves looking at the actions of suspect before, during and after the incident to fully understand the circumstances and context of the alleged attack.

The updated guidance also provides greater clarity on the Gender Recognition Act 2004 which allows individuals to have their affirmed gender recognised in law, whilst making it clear that a person’s gender identity is not dependent on them doing so.

The public consultation sets out eight questions, including:

whether any evidential considerations and public interest factors should be added, removed or amended; and
whether the language is appropriate.

The 12-week consultation begins on 26 October and will end on 19 December.

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