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Sex, Gender, Identity, and Sexuality in the Law of Sex-by-Deception
Rachel C. Tolley*
I. Introduction[1]
In 2013, the English Court of Appeal held, in R v. McNally, that “deception as to gender” could vitiate consent, even where the complainant was fully cognizant of the physical acts involved.[2] In 2020, it quashed the conviction for rape of Jason Lawrance, who had lied about having had a vasectomy, in order to induce his partner’s agreement to sex without a condom.[3] The facts of Lawrance were distinguished from earlier cases in which it was recognized that deception as to the use of a condom,[4] or a lie about the defendant’s intention to withdraw prior to ejaculation,[5] could not vitiate consent, on the basis that deception as to fertility does not go to the physical performance of the sexual act.[6] In light of that reasoning, the endorsement in Lawrance of the outcome in McNally is surprising. Indeed, the court in Lawrance expanded the scope of the decision in McNally, by rejecting any distinction between deception and mere mistake. The result is the criminalization of transgender and gender non-conforming individuals, simply for failing to disclose their “sex,”[7] under what I will refer to here as the “McNally principle.”
Part II of this article offers a brief overview of English law on deception and consent-validity in the law of sexual offenses, and the scope of the McNally principle. Part III critiques both the rationale of the principle offered in the High Court decision in Monica,[8] and the Court of Appeal’s preferred, alternative, rationale which was later set out in Lawrance. In so doing, I engage in some detail with the work of Michael Foran, who has offered the clearest and most explicit re-articulation of the assumptions and claims left implicit in the judgment in Lawrance.[9] Ultimately, the Foran/Lawrance account rests on a specific understanding of the ontology of sexual acts which cannot withstand critical scrutiny.
In part IV, I turn to Chloë Kennedy’s “identity non-recognition”[10] account of operative deceptions and mistakes, which arguably offers better tools with which to capture the courts’ concerns in these cases.[11] By focusing on the way in which we construct our identities, particularly through sex and intimacy, Kennedy argues that only those cases of deceptive or mistaken sex which undermine, or fail to recognize, the complainant’s identity warrant legal regulation. Her account looks, at first glance, to offer an explanation of the McNally principle which avoids many of the problems associated with an approach grounded in the ontology of sexual acts. However, a rationalization of the McNally principle rooted in Kennedy’s account would commit the courts to treating a broader set of deceptions as legally relevant than they have thus far been willing to do. Moreover, the critique offered in part III casts new light on the way in which the complainant’s experience of identity non-recognition in cases involving transgender defendants is ultimately contingent on the complainant’s non-recognition of the defendant’s identity (as a man/woman). This sets the scene for a richer analysis of the reasons why transgender people ought not be under an obligation to disclose their sex/gender history than one rooted in privacy alone.
II. Deception, Gender, Sex, and Consent to Sex in English Law
The Sexual Offences Act 2003 contains four principal non-consensual sex offenses, distinguished largely by the behavior element of the actus reus: rape (section 1, which requires non-consensual penile penetration of the vagina, anus, or mouth) sexual assault by penetration (section 2, non-consensual penetration, with a body part or anything else, of the vagina or anus), sexual assault (section 3, any non-consensual sexual touching), and causing a person to engage in sexual activity without consent (section 4). Whereas before the 2003 Act, liability for rape required proof of subjective recklessness as to the complainant’s lack of consent, a lack of reasonable belief in consent will now suffice.[12] Furthermore, a statutory definition of consent was provided in section 74: “a person consents if he agrees by choice, and has the freedom and capacity to make that choice.”
Section 76(2) of the Act sets out two circumstances in which both the absence of consent and the absence of a belief in consent will be conclusively presumed: (a) intentional deception as to the “nature or purpose” of the behavioral element of the actus reus; and (b) intentionally inducing “consent” to the behavioral element of the actus reus by “impersonating a person known personally to the complainant.”[13] For present purposes, it is important to note that section 76 largely reflects the pre-existing common law, which recognized only two categories of deception capable of invalidating consent: those going to the nature of the act and those going to the identity of the defendant. Deceptions[14] as to the “nature” of the act were those which lead the complainant to believe either that she is consenting to one act, when an entirely different kind of act is taking place,[15] or that the act to which she is consenting is entirely non-sexual, when the act is indeed sexual.[16] Including deceptions as to “purpose” alongside deceptions as to “nature” within section 76(2)(a) amounts to a modest extension of the law. Where the act to which the complainant is consenting is known by the complainant to be a sexual one, the deceptive concealment of an entirely non-sexual purpose on the defendant’s part will trigger section 76(2)(a).[17]
The restriction of section 76(2)(b) to the impersonation of those known personally to the complainant may well be narrower than its common law analogue. The early authorities recognizing spousal impersonation as consent-invalidating conceptualized these deceptions as going to the nature of the act, based on the perceived moral distinction between marital and non-marital sex.[18] By the mid-to-late 20thcentury, as attitudes to sex outside of marriage changed, and the focus of rape law shifted towards the protection of sexual autonomy,these cases came to be seen as instances of the broader, discrete, category of identity deception.[19] Whilst convictions remained limited only to those who impersonated the sexual partners of the complainant,[20] the reasoning underpinning those convictions was certainly capable of extending to the impersonation of any identifiable (rather than fictitious) individual.[21]
Outside of section 76, deceptions will be relevant to an assessment of consent under section 74 in a very narrow range of cases. Non-disclosure[22] or deception about HIV status or STI transmission risk in general[23] do not invalidate consent to sex. Nor will deception as to an intention to pay a sex worker; or lies about: marital or relationship status; political or religious views; wealth; employment status; or fertility (including risk of pregnancy).[24] Wholesale fabrication of a persona will also not vitiate consent.[25] The principle, as laid down in Lawrance, is that only deceptions which are “closely connected to the nature or purpose of sexual intercourse, rather than the broad circumstances surrounding it,” can invalidate consent.[26] Accordingly, deception about the use of a condom (Assange v. Swedish Prosecution Authority), or the intention to withdraw prior to ejaculation (R(F) v. DPP) will result in liability and deception as to fertility/risk of pregnancy will not. Applying this distinction to D’s false claim to have had a vasectomy, the Court of Appeal in Lawrance held that the complainant had “agreed to sexual intercourse with the appellant without imposing any physical restrictions,” and was instead deceived about the “nature or quality of the ejaculate,” and the “risks or consequences associated with it,” rather than “the physical performance of the sexual act.”[27] Putting aside section 76, if a deception or mistake[28] does not go to the physical performance of the act, consent will be valid.[29] Unless, that is, the complainant has been “deceived” or made a mistake as to the defendant’s sex.[30]
In McNally, the Court of Appeal considered the effect of “deception” as to “gender” on the validity of consent in the context of a relationship between the sixteen-year-old complainant (M) and the seventeen-year-old defendant, Justine McNally. The offending behavior consisted of physical acts (kissing, and the digital and oral penetration of M by McNally) of which M was fully cognizant. However, McNally, who was legally female and had not undergone any gender-affirming medical treatment, presented as a young boy called “Scott.” After M’s mother discovered McNally’s sex, the police became involved, and McNally ultimately pleaded guilty to six counts of sexual assault by penetration. Whilst the absence of any physical difference between the act to which the complainant agreed and the act which in fact took place would later prove to be decisive in Lawrance, for the Court of Appeal in McNally this was no impediment to liability, because “deception as to gender can vitiate consent.”[31]
There is some ambiguity as to the scope of the McNally principle and its application to trans persons, as the Court of Appeal did not explicitly address the gender identity or trans status of the defendant, despite some evidence that McNally did identify as a (transgender) man at the time of the relevant conduct.[32] On the narrowest possible construction of the judgment, McNally was a cis woman pretending to be a man, and not a transgender man failing to disclose or deceiving the complainant about his sex. The ruling that deception as to gender can vitiate consent might therefore be considered irrelevant to transgender individuals.[33] At no point did the court describe McNally as transgender or acknowledge the defendant’s masculine gender presentation as an authentic expression of gender identity, and the characterization of McNally’s conduct as deceptive would be inapt if the defendant was indeed trans.[34] In the face of such ambiguity, and in the absence of a clear statement from an appellate court (or indeed Parliament) that trans individuals are obliged to disclose their sex to their sexual partners, it is arguable that the scope of the rule imposing criminal liability ought to be construed more narrowly, capturing only those who engage in deception as to their gender, or perhaps both their gender and their sex, rather than simply their sex alone.
However, given the evidence of the defendant’s likely trans identity at the relevant time, it is hard to argue that the decision does not apply at least to trans persons in an analogous position to McNally.[35] That said, the court’s framing of the principle as involving deception as to gender is deeply problematic, not least as it evinces little understanding of transgender identities. As Sharpe notes, “transgender men present as the men they are.”[36] In reality, the complainant in McNally held a false belief about McNally’s sex, (or, as Sharpe prefers, gender history[37]) rather than McNally’s gender. Indeed, McNally has been widely interpreted as addressing deceptions as to sex alone,[38] sometimes on the basis that, where sex and gender are used interchangeably in law, primacy is given to the former. Setting aside the merits of this interpretive approach, there have been a numberof prosecutions, both before and after McNally, which are only consistent with this broader interpretation of McNally.[39] What’s more, the apparent de facto obligation to disclose sex imposed by this broader interpretation of McNally[40] looks now to have become de jure, following the rejection in Lawrance of any distinction between legally relevant deceptions and legally relevant mistakes.[41] As such, I will treat the McNally principle as concerned with the non-disclosure of sex, rather than deception about sex.[42]
The implications of such a wide-ranging obligation, which applies to all forms of sexual activity, from penetrative sex to a light kiss, are truly perilous for transgender individuals, who must make minimally-informed decisions about whether or not disclosure would matter to a sexual partner, with sometimes little-to-no information about their partner’s general views regarding trans people.[43] Disclosure may, of course, turn out to be unnecessary (if the information was not important to the complainant). In any event, it can also result in an irreversible loss of privacy, as well as a range of other associated harms (discrimination; harassment; physical and psychological harm).[44] In the context of an objective mens rea requirement,[45] liability in cases of non-disclosure will rest on the jury’s view as to whether it was reasonable for the defendant to believe that the information would not have made a difference to the complainant’s consent. In many cases, this will presumably be determined by the specific jury’s collective opinion on whether trans people ought to disclose their trans status, as a general rule. That opinion will no doubt arise from their personal views about engaging in sexual activity with someone they did not know to be trans.[46]
On what basis can such liability be justified, especially where there are significant limitations on the kind of information that is legally relevant to consent validity? The conceptual apparatus with which the McNally principle has been rationalized is unstable. This is a point worth ventilating in some detail: the criminalization of trans defendants is not, generally speaking, a jurisdiction-specific phenomenon,[47] and there is real potential for the flawed English approach to be echoed in the large numbers of jurisdictions which regard deceptions as to the nature of the act or identity of the defendant as relevant to consent-validity.
III. Rationalizing the McNally Principle
In light of the focus on deceptions related to the physical performance of the act in Lawrance, it is puzzling that the McNally principle has been endorsed without any hesitation. Two main rationalizations of the principle emerge from the authorities and subsequent academic work. The first is that McNally involved impersonation/identity deception.[48] The second rests on an ontological difference between the act to which the complainant consented and the act which in fact took place, and its status as a difference in the sexual nature of the two acts.[49] In substance, each argument seeks to bring the McNally principle within—or at least very close to—the common law categories of legally relevant deceptions[50] and, in so doing, limit the number of legally relevant deceptions to a very small subset, which includes the McNally principle. Neither approach succeeds.
A. Gender, Identity and Impersonation
Prior to his judgment in Lawrance, Lord Burnett CJ gave the judgment of the High Court in Monica, denying judicial review of the decision not to prosecute Andrew Boyling for rape (and other offenses). Boyling was an undercover police officer and, under an entirely fabricated identity, engaged in a long-term sexual relationship with “Monica,” whilst conducting surveillance on her and her friends. In denying the application, the court sought to rationalize and distinguish McNally, agreeing with a prosecuting lawyer’s description of that case as involving a deception which “strike[s] at the heart of the complainant’s sexuality” and goes to “the fundamental identity of the perpetrator” and was thus “an identity or impersonation case, given the centrality of an individual’s sexuality to her or his identity.”[51] Later in the judgment, the “deception” in McNally was described as “intrinsically so fundamental, owing to [its close connection to the performance of the sexual act] that [it] can be treated as . . . impersonation.”[52]
There was no evidence of deception or non-disclosure regarding McNally’s sexuality. This was not the basis of McNally’s plea, and the sexuality of a transgender person is neither the same as their sex or gender identity, nor necessarily implied by either. The reference in Monica to the individual whose sexual identity is central to their identity could, accordingly, refer only to the complainant. This leaves the “impersonation/identity” rationale for the McNally principle premised on three facts: (1) the complainant identifies as heterosexual or homosexual; (2) that she (incorrectly) believed she was engaging in sexual activity with a member of a particular sex and (3) that the complainant’s sexuality is central to her identity. From these premises it is taken to follow that the defendant’s “deception” is akin to impersonation. Implicit within this reasoning is that the defendant’s “deception” is inconsistent with, challenges or threatens the complainant’s sexuality and that is what makes the defendant’s “deception” tantamount to impersonation.
This reasoning is flawed. Firstly, itsuggests that if the complainant identified as bisexual then liability would not be imposed, yet this would produce highly problematic outcomes. If the defendant (a cis woman) pretends to be a fictitious man to induce her friend, C, who would not knowingly consent to engaging in sexual activity with the defendant,[53] the defendant’s liability should not turn on whether the complainant is bisexual or not. To suggest otherwise risks invoking the rape myth that consent to one woman (where the complainant is bisexual) entails or makes consent to another (D) more likely. Secondly, whilst this rationale was clearly intended to provide a strict limitation on liability, it fails to exclude precisely those cases—wholesale identity fabrication and deception as to marital status[54]—that the court in Monica sought to exclude. It is odd to describe McNallyas having engaged in deception as to identity, but not a man whose entire persona was a façade designed to win the trust of the complainant (the defendant in Monica). More difficult still is the marital status distinction drawn by the court: where the complainant views extra-marital sex as a sin, and is not prepared to engage in sexual intercourse outside of marriage, it seems equally plausible to claim that the defendant’s deception strikes at the heart of the complainant’s faith, and involved deception as to the fundamental identity of the perpetrator (as her spouse). Why, then, cannot this too be analyzed as an impersonation case, given the centrality of the complainant’s faith to her identity? There is no obviously satisfactory reason to draw a distinction between faith and sexuality, especially where the aspect of the complainant’s faith which has been “struck” by the deception relates to sexual ethics.
Ultimately, the identity/impersonation argument leaves a significant gap between recognizing that the complainant’s sexuality is important to her identity, to viewing the deception or non-disclosure as going directly to the defendant’s identity. The courts do not provide a plausible explanation of how this gap might be bridged. It is unsurprising, therefore, that a different rationale was later adopted in Lawrance.
B. Sexuality and the Nature of Sex
Instead of relying on an identity/impersonation argument, the decision in Lawrance offers a “difference in sexual nature” account of McNally, although the judgment itself offers little by way of explanation as to why or how the sexual nature of an act is “different” simply in virtue of a mistake made as to the defendant’s sex.[55] This rationale has been articulated in more detail by Michael Foran, who claims that the difference in sexual nature is the difference between a “homosexual” sexual act and a “heterosexual” one.[56] In cases where the defendant does not disclose[57] their “biological” (or rather, birth-assigned)[58] sex,the complainant “think[s] that they were engaged in acts of one sexual nature (heterosexual/homosexual) when they were in fact [engaged in acts] of another sexual nature (homosexual/heterosexual).”[59] This, for Foran, is particularly problematic for those whose sexual orientation is monosexual—that is, directed exclusively towards men or women (in other words, lesbians, gay men, and heterosexuals),[60] because non-disclosure or deception of the defendant’s sex in such cases undermines the sexual orientation of the complainant and, as such, fails to respect their identity.[61] Although far more impressive than the courts’ explanations of such cases, Foran’s view leads to highly counterintuitive implications.
Foran makes explicit the assumptions that the Court of Appeal in McNally and Lawrance leave implicit: that whether sex is “homosexual” or “heterosexual” is determined necessarily by the birth-assigned sex of the complainant and that this difference is an ontological one (in the sexual nature of the acts). Yet whilst some might take the view (for example) that sex between a cis woman and transgender women is not “lesbian sex,” there is no evidence to suggest that this view is universally held. At least some monosexuals include trans people within the group to whom they may experience attraction, whilst maintaining their heterosexual/homosexual/gay/lesbian[62] sexual orientation.[63] Putting aside whether it is even possible to define sex acts as either “gay” or “straight,” “homosexual” or “heterosexual,” there are different ways in which people can and do define distinct sexual orientations (and, insofar as they may do so, categorize sexual acts). In light of this plurality of possible understandings of what it means both to be monosexual, and engage in gay/straight/lesbian sex, the privileging of one conceptualization over another requires justification, especially where this runs counter to the way that the individuals involved understand both their own sexuality and the act in which they are engaged. Even if the approach favored by Foran and the courts represents the majority view, it is unclear why we should simply default to it.[64]
It is even more odd to adopt a sex-based view of sexual acts which is linked to birth-assigned sex, as it necessitates[65] describing penile-vaginal penetration as gay sex, where a trans man penetrates his female partner with a surgically constructed penis, or where a trans woman with a surgically constructed vagina is penetrated by her partner’s penis. Similarly, one must describe penile penetration of the anus of a cisgender man by a trans man with his surgically constructed penis as straight sex, and the digital penetration by a cisgender woman of her trans partner’s surgically constructed vagina as heterosexual sex. Without taking a view on how such acts should be categorized,[66] it is deeply counter-intuitive to describe them thus.
One difficulty with a narrow, sex-based view of sexual orientation is that the reality of attraction or desire might diverge from a sex-based theory, precisely because incongruence between gender and sex is not always apparent. In other words, it is possible that someone (P) with a sex-based view of their own sexuality (or the concept of sexual orientations in general) might nevertheless find themselves attracted to a woman (W), desire to engage in sexual activity with her, and in fact engage in pleasurable sexual contact, all without ever finding out that she is a trans woman. To describe the sexual engagement between these parties as somehow failing to reflect, express, or respect P’s sexuality is unsuitable, because it was precisely P’s recognition of W as a woman that in part generated (or perhaps facilitated) P’s sexual interest in her.[67]
Of course, in a case where a cisgender man, M, nevertheless pretends to be a woman in order to induce the consent of P2, who wouldn’t have consented otherwise (because P2 is not attracted to men), one might also argue that P2’s attraction is in part generated by her recognition of M as a woman.[68] There is, however, a difference between these cases: M’s presentation is not an authentic reflection of an internally-held sense of self, whereas W presents as a woman because she is one.[69] To deny the relevance of this distinction is to deny that a trans woman is entitled to call herself a woman, and to place her in the same category as the cis person who engages in a dual deception as to both sex and gender. In other words, the “difference in sexual nature” analysis offered by both Foran and the English courts relies on the denial that trans women are entitled to call themselves women and that trans men are entitled to call themselves men. On the “difference in sexual nature” account, trans women are really men and trans men are really women, and that is why sex with them is really homosexual/heterosexual rather than heterosexual/homosexual.
At the very least, it is inappropriate for the Court of Appeal to smuggle in a position on such a hotly contested political and moral issue in the guise of a simple ontological distinction between different “kinds” of sexual activity. Not only does such intellectual sleight of hand obscure from defendants the real basis of their liability, it also amounts to a significant extension of the law without any indication that, in defining consent as requiring the freedom and capacity to choose in section 74 the Sexual Offences Act 2003, Parliament intended to take a position on the ontology of gender. The “difference in sexual nature” account is in any case conceptually flawed. One problem with the argument is the way it presupposes that trans men are not men and trans women are not women, which denies the dignity, self-knowledge, and lived experience of trans people.[70] Whilst space precludes any direct defense of this contested position here, the converse claim that trans women are not women (etc.) leads to highly counterintuitive implications when embedded within the “difference in sexual nature” argument.
The first problem arising from the “difference in sexual nature argument” is one of over-inclusivity. The argument rests on the claim that there is an ontological difference between Act X (heterosexual sex) and Act Y (homosexual sex), and in virtue of that ontological difference between the two, consent to X does not entail consent to Y.[71] It follows from this that the complainant’s attitude towards that ontological difference and the information which underpins it is irrelevant. The complainant’s consent to “heterosexual sexual activity” with a boy cannot be “transformed into a choice to engage in homosexual sexual activity with a girl”[72] in cases where the complainant would have been quite willing to consent to sex with a girl, had she known that the defendant “really” was one, any more than it can be so transformed in cases where the difference is a “dealbreaker”[73] for her. The result is that sex between the complainant and the defendant amounts to a serious criminal offense whenever the complainant is ignorant of the defendant’s birth-assigned sex, even if this information is irrelevant to the complainant, and even if the defendant knows the information to be irrelevant to the complainant. Any belief on the defendant’s part—reasonable or otherwise—that the information would have been unimportant to the complainant cannot be exculpatory, as it would not amount to a reasonable belief in consent.[74] That such acts would nevertheless constitute serious moral wrongs (in virtue of the absence of consent) is sufficiently counter-intuitive to cast serious doubt on the argument even if prosecution in such cases is unlikely.[75]
One can avoid the over-inclusivity issue only if the “sexual nature” of the act is sensitive to the complainant’s subjective understanding of the activity in question. This might allow one to distinguish between a complainant who regards sex between a cis and trans man as heterosexual and one who regards the same act as homosexual. But it also raises the possibility of disagreement between parties to the same act, i.e., the complainant (a cis man) regards it as heterosexual and the defendant (a trans man) as homosexual. One cannot (at least, if one wishes to adopt a “nature of the act” argument) simply treat each person as the authority of their own experience, because this would accept that there are two equally valid ways to describe the same act, which denies the ontological relevance of the designation “homosexual” or “heterosexual.”[76] If a choice between the two must be made, it isn’t clear why the complainant’s perspective should be privileged over the defendant’s: simply stating that “the defendant deceived the complainant” begs the question, and the McNally principle applies to cases of non-disclosure in any event.
It is notable that the argument adopted by Foran and the courts rests on the assumption that the defendant is in some way fundamentally mistaken about the defendant’s own identity: the sex is not homosexual/heterosexual, because the defendant is “really a woman/man.” Both Foran and the courts see this as particularly problematic when the complainant is monosexual. Yet there is another way to view these cases. If the defendant is, in fact, “really a woman,” and the complainant was sexually attracted to her (and, arguendo) engaged in pleasurable sexual activity with the complainant, before discovering “the truth,” why does that not instead call into question the accuracy of the complainant’s self-declared sexual orientation? On this account, it would be hard to see how the defendant’s deception would “attack” or “undermine” the complainant’s monosexual sexual orientation, rather than reveal new information which requires the complainant to reflect further on the accuracy of past self-understanding? It seems inappropriate for the law to treat the complainant as “really bisexual,” against his own self-identification. But the “difference in sexual nature” argument rests on denying the defendant that same self-authority to define their own gender (even in cases where that gender presentation has been recognized by the complainant, at least to the degree that they were perceived as someone whose birth-assigned sex corresponded to that gender). Of course, there may be something about gender, as distinct from sexual orientation, that explains why only the latter is sensitive to self-identification, but it behooves those who seek to criminalize trans defendants on that basis to explain what that might be. The courts have not come close to doing so.[77]
A more straightforward way of explaining these cases, which I describe as the “trans status counterfactual,” is simply to recognize that the complainant would not have engaged in sexual activity with the defendant, had the complainant known the defendant to be a trans man/woman.[78] Yet it is not clear why this counterfactual relating to sex should be relevant to consent validity while a whole host of others (including those relating to marital status; wealth; fertility; STI transmission risk, etc.) are not.[79] When the “difference in sexual nature” is abandoned, any plausible symmetry between (i) deception/non-disclosure as to sex and (ii) deception/non-disclosure about matters going to the physical performance of the act[80] is lost. We are left wondering what distinguishes McNally from other cases—real or hypothetical—in which the complainant might regard the information about which she was unaware as important because of the way it impacts on her identity or sexuality; or where the defendant’s conduct might also lead to significant distress. In other words, the “trans status counterfactual” secures conceptual plausibility at the expense of legal certainty and one of the key outcomes the court in Lawrance was seeking to achieve (that is, coherently excluding information about other attributes or characteristics from the scope of liability).[81]
IV. From Identity Non-Recognition to Sexual Nature and Back Again
Chloë Kennedy proposes a different resolution to the line-drawing dilemma centered around those deceptions which result in “identity non-recognition.”[82] She observes that “sex and intimate relationships are generally important to how people form their identities in contemporary societies,” and argues that that failing to respect someone’s identity by “withholding information that is crucial to it” is both wrongful and, “insofar as it can cause negative effects on a person’s self-sentiments,” or even lead to a change in their identity which may not “cohere with that person’s desired life narrative,”[83] it is also harmful. Because sex or intimacy is a site of identity construction, and we have a strong collective interest in respect for that process, the state has good reason to regulate deceptions or non-disclosures which disrespect or fail to recognize the complainant’s identity as it is constructed through sex.[84] In principle, anything could be relevant to an individual’s identity, but Kennedy advocates drawing up a list of matters which are “generally-speaking important to people in self-constructing terms,” in order to shift focus from the complainant’s subjective response to the defendant’s conduct and manage rule of law concerns.[85] To guard against under-inclusivity, Kennedy would supplement the list with a further catch-all category where the complainant explicitly makes consent conditional on any matter at all.[86] To guard against over-inclusivity, Kennedy accepts that exceptions may need to be made in relation to some categories of information which do meet the criteria for inclusion on the list.[87]
One potential advantage of Kennedy’s account, at least for those sympathetic to the McNally principle, is that it offers a rationalization which retains the insight that what ought to concern us in these cases is the negative impact of the defendant’s conduct upon the complainant’s self-identity and understanding of her own sexuality, but which does not posit an ontological distinction between the “sexual nature” of homosexual and heterosexual sex, nor draw implausible analogies to impersonation. It also provides an explanation for some plausible limitations on liability, unlike the bare “trans status counterfactual.” Accordingly, at least if countervailing reasons against criminalizing trans defendants[88] are rejected as unpersuasive, Kennedy’s framework arguably provides the best explanation for the McNally principle to date. That said, the adoption of Kennedy’s framework would commit proponents to a broader range of legally relevant deceptions and mistakes than the courts have currently countenanced. On Kennedy’s view, wholesale identity fabrications (like that in Monica) would certainly result in liability and, if deception or non-disclosure as to sex resulted in liability, it would be difficult to distinguish deception or non-disclosure as to the risk of pregnancy or acquiring a chronic disease (like HIV or genital herpes).[89] This is a relatively modest extension of the law as it stands but, in arguing that the list of those specified matters which are generally relevant to identity construction should be supplemented by provision for establishing liability whenever consent is made explicitly conditional on a particular matter, however idiosyncratic, Kennedy’s analysis ultimately breaks with the existing law to a significant degree.[90]
One point emerging from this analysis is that the weight given to countervailing reasons against liability will be just as important, in determining the ultimate scope of liability under Kennedy’s formula, as the detailed working out of what matters to us, generally speaking, when we construct our identities through sex. In addition to her concerns about privacy,[91] Kennedy also suggests that the state may lack standing to blame trans defendants, if their deception/non-disclosure “can be explained by reference to the disadvantage they face [as a marginalized group, and] the state is partially responsible for generating that disadvantage,” provided the “defendant’s offending conduct took place on the same ‘plane’ as the state’s failures.”[92] Foran is unpersuaded on both counts. Against the argument from the state’s standing to blame, Foran claims that the failure to prosecute trans people in such cases would amount to the state failing to recognize the complainant’s identity and, faced with a choice, the interests of the complainant should be prioritized because only the complainant “has been induced into sexual activity by an operative deception that undermines their sexual boundaries.”[93] This puts the point too strongly: refraining from criminalizing the defendant does not necessarily entail the denial of, or failure to recognize, the complainant’s sexual orientation. Furthermore, Foran’s recourse to deception understates the scope of the McNally principle, and his reference to “operative deception” seems to beg the very question we seek to answer.[94] However, if the standing to blame argument is insufficient (or perhaps unworkable), and the privacy argument requires further support,[95] it is helpful to articulate how Kennedy’s framework offers a more compelling reason for restraint in these cases than either Kennedy or Foran has yet realized.
Recalling the analysis in part III, we can see how non-disclosure or deception as to sex has a negative impact on the complainant’s identity-formation (that is, her understanding of her own sexuality) through a particular process. The issue is not a general unwillingness to engage in sexual activity with a trans person per se, but rather the complainant’s conceptualization of the act either a) as homosexual rather than heterosexual in nature (or vice versa), or b) as otherwise inconsistent with her sexual orientation. Either way, this perspective is made possible only if the complainant regards the defendant as “really” a man/woman rather than a (trans)woman/(trans)man. In other words, the complainant’s experience of identity non-recognition as a result of the defendant’s conduct is contingent on the complainant’s non-recognition of the defendant’s identity.[96]
This sets the stage for a reconsideration of the normative landscape between the defendant and the complainant. The defendant’s non-disclosure or deception can now be seen as a (sometimes pre-emptive) protective mechanism against the complainant’s wrongful and harmful non-recognition of the defendant’s identity (or the possibility of it). Crucially, the defendant’s experience of identity non-recognition is sited within sex and intimacy, not just their gender identity, because a trans man/woman’s sexual autonomy to engage in sexual activity both as a man/woman and also consistently with their sexual orientation (at least for any trans people who identify as monosexual) is also at stake.[97] Space precludes proper consideration of the implications of these insights here, but it opens the door to viewing non-disclosure or even deception as to sex or gender history through the lens of a defense-based rationale (whether justificatory or excusatory) both independently to, and as supplementing, the privacy-based arguments which may be led in favor of an exception.
V. Conclusion
The McNally principle is anomalous, controversial and over-inclusive. The judicial endorsement of that principle is premised on a peculiar ontology of sexual acts which lacks empirical, conceptual or legal justification. One might wonder whether the inability of the courts to offer a convincing rationale for subjecting trans persons to a uniquely onerous obligation to disclose often deeply sensitive personal information in order to obtain valid consent whilst simultaneously treating a swathe of highly culpable deceptions as legally irrelevant, indicates the presence of an explanatory elephant in the room.[98] That said, Kennedy’s identity non-recognition framework may provide analytical tools to courts or commentators who seek to rehabilitate McNally on more principled grounds. However, this would probably entail a significant expansion of the current legal position and would certainly require consideration of the symmetrical wrongdoing that cases exhibit.[99] In addition to the privacy- and state standing-based reasons for excluding trans defendants canvassed in the broader debate thus far, those seeking to impose liability on identity non-recognition grounds must explain why the defendant’s conduct cannot be exculpated on the grounds that it is as a proportionate pre-emptive response to the complainant’s failure to recognize the defendant’s identity. Without such an explanation, a convincing case cannot be made for the continued existence of the McNally principle.
* John Collier Fellow and College Associate Professor in Law, Trinity Hall, The University of Cambridge. My thanks to Joe Fischel, Lena Holzer, Shyane Siriwardena, and Findlay Stark for written comments, and to Michael Foran and Chloë Kennedy for helpful clarifications. All errors and infelicities remain my own.
[1] This article was written before the decision in R v. BVA, [2025] EWCA Crim 1359, which is now the leading authority on the question of deception and the validity of consent to sex in English law. The main text of the article has not been updated, but a brief explanation of why the arguments presented here remain unaffected by the decision is set out at note 29 below.
[2] R v. McNally, [2013] EWCA Crim 1051. The decision probably concerns deception as to sex. See infra text accompanying notes 30-40; on the meaning of “sex” in this context, see infra note 6.
[3] R v. Lawrance, [2020] EWCA Crim 971.
[4] Assange v. Swedish Prosecution Authority, [2011] EWHC 2849 (Admin), (2011) 108(44) LSG 17.
[5] R(F) v. DPP, [2013] EWHC 945 (Admin), [2014] Q.B. 581.
[6] Lawrance, [2020] EWCA Crim at [37].
[7] Unless a contrary meaning is stated or implied by context, my use of the term “sex” in this article refers only to the sex category to which an individual was assigned at birth. This clarification is important, as the term “sex” is ambiguous and its meaning contested. It might be used to describe either birth-assigned sex or legal sex. These are—at least in the UK—binary (male or female) and the former determines the latter, unless one has obtained a gender recognition certificate to change one’s legal sex, see Gender Recognition Act 2004, ch. 7 § 9. It is often used to refer to “biological sex,” a term itself ambiguous and oversimplistic. It is unclear whether “biological sex” should be determined by chromosomes, gonads, hormone levels, external appearance (especially of the genitals) at the time of birth or at some other point in time. These distinct aspects of human physiology and genetics may not all point in the same direction. Indeed, it seems clear that biological sex—whatever that might mean—is not binary in humans, see Claire Ainsworth, Sex Redefined, 518 Nature 288 (2015), nor in animals, see J.F. McLaughlin et al., Multivariate Models of Animal Sex: Breaking Binaries Leads to a Better Understanding of Ecology and Evolution, 63 Integrative & Compar. Biology 891 (2023). Furthermore, in light of advances in gender-affirming care, sex may or may not be immutable, depending on how it is defined. See, e.g., Matilda Carter, Trans Women Are (or Are Becoming) Female: Disputing the Endogeneity Constraint, 37 Hypatia 384 (2022). Finally, treating sex as something entirely “objective” and “scientific” risks obscuring the political and social relations which give scientifically observable features purpose and/or meaning. See Katrina Karkazis, The Misuses of “Biological Sex,” 394 The Lancet 1898 (2019); Anne Fausto-Sterling, Sexing the Body: Gender Politics and the Construction of Sexuality (2000).
[8] R (on the application of Monica) v. DPP (ex parte Boyling), [2018] EWHC 3508 (Admin), [2019] QB 1019.
[9] Michael Foran, Sex by Deception 7 (July 1, 2025) (https://dx.doi.org/10.2139/ssrn.5333213).
[10] Chloë Kennedy, Inducing Intimacy: Deception, Consent and the Law 213-19 (2024) [hereinafter Kennedy, Inducing Intimacy] & Chloë Kennedy, Criminalising Deceptive Sex: Sex, Identity and Recognition, 41 Legal Stud. (2021) [hereinafter, Kennedy, Criminalising Deceptive Sex].
[11] Though Kennedy herself expresses hesitation about the criminalization of trans defendants: Kennedy, Inducing Intimacy, supra note 10, at 217; Kennedy, Criminalising Deceptive Sex, supra note 10, at 103-05.
[12] Sexual Offences Act 2003, ch. 42 §§ 1-4.
[13] This phrasing accounts for the impact of Sexual Offences Act 2003 § 77 on the criteria set out within § 76(2)(a) and (b), respectively.
[14] At common law, a mistake as to the nature of the act or, as addressed below, the identity of the defendant, would negate consent, see R v. Richardson (Diane), [1999] QB 444, 450 (CA). The point has not been tested, but presumably any ostensible consent given on the basis of such a mistake would also be invalid under § 74 of the Sexual Offences Act 2003.
[15] E.g., penetration with a speculum rather than a penis, see People v. Minkowski, 204 Cal. App. 2d 832, 840, 23 Cal. Rptr. 92, 96 (1962).
[16] E.g., R v. Flattery, (1877) 2 QBD 410; R v. Williams, [1923] 1 KB 340; R v. Green, [2002] EWCA Crim 1501.
[17] See R v. Devonald, [2008] EWCA Crim 527. In cases where the complainant is aware that one of the defendant’s purposes was the pursuit of sexual gratification, § 76 does not apply: R v. Bingham, [2013] EWCA Crim 823, [2003] 2 Cr App R 29. In part, this can be explained by a desire to limit the scope of such a draconian position to only the most egregious cases: R v. Jheeta, [2007] EWCA Crim 1699, [2008] 1 WLR 2582 [23]. Additionally, if the complainant understands that an act is sexual for reasons other than the purposes of the parties involved, then a concealed sexual purpose on the defendant’s part will preclude consent under § 76, even if it would not have done so at common law. This arguably explains the decision in Boro v. Superior Ct., 163 Cal. App. 3d 1224, 1230, 210 Cal. Rptr. 122, 126 (1985), where the complainant consented to sexual intercourse with D after he convinced her this would cure her (fictitious) life-threatening disease.
[18] See discussion in Kennedy, Inducing Intimacy, supra note 10, at 170-74.
[19] Papadimitropoulos v. R, (1957) 98 CLR 249 (Austl.); Richardson, [1999] QB at 448-49; R v. Linekar, [1995] QB 250, 259; R v. Tabassum, [2000] 2 Cr App R 328, 336; see also Kennedy, Inducing Intimacy, supra note 10, at 173-75. In anticipation of the analysis in part III below, it is worth noting that Michael Foran’s claim that any denial of a difference in sexual nature between “heterosexual” and “homosexual” acts would undermine the basis on which the impersonation of a spouse or someone known to the complainant invalidates consent overlooks this shift. See Foran, supra note 9, at 7.
[20] See R v. Elbekkay, [1995] Crim LR 163.
[21] See Lord McCowan in id. (“[t]he vital point about rape is that it involves the absence of consent [which is] equally crucial whether the woman believes that the man she is having sexual intercourse with is her husband or another ” (emphasis added)); see also Moreland J in Linekar, [1995] QB 250 at 255 (describing the victim in Elbekkay as not having “consent[ed] to sexual intercourse with the particular man who penetrated her” (emphasis added)) & 257 (observing that the spousal impersonation cases involve no “consensus quoad hanc personam”); cf. Kennedy, Inducing Intimacy, supra note 10, at 174-75.
[22] R v. EB, [2006] EWCA Crim 2945, [2007] 1 WLR 1567.
[23] R v. Lawrance, [2020] EWCA Crim at [38]-[41].
[24] Id. [38].
[25] See Monica, [2018] EWHC at 3508.
[26] Lawrance, [2020] EWCA Crim at [35]. The Court of Appeal in Lawrance did not affirm the characterization of McNally’s “deception” offered, obiter, in Monica (see Monica, [2018] EWHC at [77], [80]) as being akin to impersonation, nor the claim that such deceptions are relevant to consent validity. As the “identity/impersonation” rationale for the McNally principle is fundamentally unworkable (see infra part III.A), I take this omission to be legally salient and advisable.
[27] Id. [37] (emphasis added).
[28] In Lawrance, the Court rejected (albeit obiter) the distinction between deception and mistake, see id. [40]-[41].
[29] The Court of Appeal decision in R v. BVA, [2025] EWCA Crim 1359, in which it was held that the surreptitious filming of an otherwise consensual sexual encounter was sufficiently closely connected to the sexual acts so filmed as to vitiate the complainant’s consent, expanded the categories of deceptions and non-disclosures capable of vitiating consent, to include those which are closely connected to the “nature” or “purpose” of the act as well as its physical performance. The full implications of this decision remain unclear. However, it is important to note that the Court explicitly rationalized McNally as a case involving deception as to the “sexual nature” of the act (id. at [40]) and did not expand the scope of liability to cases involving deception or non-disclosure about personal attributes in general. As such, however modest or significant this extension of the law proves to be, it does not undermine the arguments offered here against a “sexual nature” rationale for the McNally principle.
[30] See supra note 7 on the meaning of “sex.”
[31] At least where this information matters to the complainant. McNally, [2013] EWCA Crim at [27].
[32] Id. [10], [47]. That McNally identified as a woman at home and at school at the time of the activity in question, and also at the time of the trial, should not be taken as strong evidence against transgender identity. See Alex Sharpe, Sexual Intimacy and Gender Identity “Fraud”: Reframing the Legal and Ethical Debate 94-95, 123-25 (2018) & Mitchell Travis, The Vulnerability of Heterosexuality: Consent, Gender Deception and Embodiment 303 Soc. & Leg. Stud. (2019).
[33] See Alex Sharpe, Deception as to Gender: A Review of Proposed Revisions to CPS Legal Guidance on Rape and Serious Sexual Offences, 89 J. Crim. L. 29, 33 (2025).
[34] See Sharpe, supra note 32, both generally and at 128.
[35] At which point, it arguably becomes difficult to draw both normatively sound and practically workable distinctions between trans persons who have undergone some degree of gender-affirming treatment and/or sought to obtain a Gender Recognition Certificate, though space precludes full argument of the point here. This is even more so the case if the law extends to non-disclosure, rather than just active deception (see infra text accompanying note 39).
[36] See supra note 34.
[37] See Alex Sharpe, Deceptive Sex: Re-thinking Consent from the Gender Margins, 88 Mod. L. Rev. 689 (2025). However, notwithstanding the complexity associated with defining “sex” (supra note 7), there will surely be at least some cases in which the argument adopted by Foran, supra note 9, that the defendant’s non-disclosure or deception goes to a present fact (sex) and not merely a historical one (gender history), will be fair. Whether this distinction should be legally salient is another matter, of course.
[38] See Foran, supra note 9. The Crown Prosecution Service also interpret the decision as referring to deception or non-disclosure as to “birth sex” in their published guidance on the prosecution of sexual offenses in England and Wales: Crown Prosecution Service, Rape and Sexual Offences—Chapter 6: Consent (Dec. 13, 2024) (https://perma.cc/QA4M-G2L3) (on file with author), and in substance treat the decision as applying to trans individuals, notwithstanding their view that the defendant in McNally was not trans.
[39] R v. Kyran Lee (Mason) (Lincoln Crown Court, Dec. 16, 2015) (unreported); R v. Staines, [2016] EWCA Crim 1969; R v. Tarjit Singh, [2024] EWCA Crim 815; R v. Ciara Watkin (Teesside Crown Court, Aug. 22, 2025) (unreported).
[40] Through the willingness to treat trans persons’ gender expression as inherently deceptive. See Alex Sharpe, Expanding Liability for Sexual Fraud Through the Concept of “Active Deception,” 80 J. Crim. L. (2016).
[41] Lawrance, [2020] EWCA Crim at [40]-[41].
[42] As such, the application of the deception/non-disclosure distinction in these cases is not relevant to my argument. That said, I regard it as entirely inappropriate to describe transgender individuals as engaging in deception as to either their gender or their sex simply by moving through the world and engaging in behavior which in some way expresses their gender identity. Accordingly the claim that McNally’s conduct was deceptive is highly problematic. See id.; cf. Foran, supra note 9, at 8, 15.
[43] Whilst the implications for individuals with variations in sex characteristics/intersex persons have not been tested, it is not unreasonable to worry that they too might be inappropriately subject to obligations of disclosure under the McNally principle.
[44] See Alex Sharpe, European Human Rights Law and the Legality of Sex Offence Prosecutions Based on Deception as to Gender History, 44 Legal Stud. 631, 644-45 (2024).
[45] See supra part I.
[46] Hardly a recipe for predictability. For brief discussion, see Rachel C. Tolley, Deception, Mistake and Difficult Decisions, in Reforming the Relationship between Sexual Consent, Deception and Mistake 96 (Criminal Law Reform Now 2023).
[47] Transgender defendants have been convicted of sexual offenses on the basis of deception or non-disclosure in Scotland (see R v. Chris Wilson (Edinburgh Crown Court, Mar. 6, 2015) (unreported); R v. Carlos Delacruz (Edinburgh Sheriff Court, Sept. 4, 2018) (unreported)) and Israel (see Israel v. Alkobi, [2003] IsrDC 3341(3) (Haifa District Court, Israel) & Aeyal Gross, Gender Outlaws Before the Law: The Courts of the Borderland, 32 Harv. J.L. & Gender 165 (2009)). Whilst I’m not aware of any convictions of trans defendants in Canada, and it has been argued that convictions would not, in any case, be possible under Canadian law (see Talia Mae Bettcher, Evil Deceivers and Make-Believers: On Transphobic Violence and the Politics of Illusion, 22 Hypatia 43 (2007)), I am aware of at least one case, R v. Sfeir, [2025] ONSC 2912 (Can. Ont. Sup. Ct. J.), in which a (cisgender) defendant who pretended to be a woman and performed fellatio upon the complainant through a sheet was convicted of a sexual assault.
[48] Monica, [2018] EWHC at 3508.
[49] Lawrance, [2020] EWCA Crim at [32]; McNally, [2013] EWCA Crim at [26]; Foran, supra note 9, at 8.
[50] Without relying on the conclusive presumptions in the Sexual Offences Act 2003 § 76.
[51] Monica, [2018] EWHC at [77].
[52] Id. at [80].
[53] See R v. Gayle Newland (Chester Crown Court, Sept. 15, 2015) (unreported) & Simon Hattenstone, I Was Pretending to Be a Boy for a Variety of Reasons: The Strange Case of Gayle Newland, The Guardian (July 15, 2015) (https://perma.cc/8SP7-4J2V) (on file with author).
[54] Monica, [2018] EWHC at [83]; Lawrance, [2020] EWCA Crim at [34].
[55] Lawrance, [2020] EWCA Crim at [32], drawing on reasoning originally provided in McNally (“[T]he nature of the sexual act was ‘on any common-sense view, different where the complainant is deliberately deceived by the defendant into believing that the latter is male.’ The complainant ‘chose to have sexual encounters with a boy and her preference (her freedom whether or not to have a sexual encounter with a girl) was removed by the appellant’s deception.’”) (quoting McNally, [2013] EWCA Crim at [26]). This is not the same sense of “nature” which was relevant at common law, or which gives rise to a presumption under § 76, because the complainant knew the act was a sexual act, and was also cognizant of the physical nature of that act. See supra part I.
[56] Although Foran’s argument may be taken as an explanation and interpretation of existing law, rather than a theoretical justification of liability in these cases, the success of the interpretation nevertheless rests on the conceptual plausibility of the ontological distinction it posits.
[57] Whilst Foran’s analysis is framed in terms of deception, the law extends to cases of non-disclosure. See supra part II.
[58] Foran uses “biological” and “natal” interchangeably in his piece and implies that medical intervention cannot change biological sex and so there is no distinction on his account between “biological” and birth-assigned sex.
[59] Foran supra note 9, at 5.
[60] I note that Foran does not expressly limit his argument to those who are attracted only to men or women, but it is hard to see how non-disclosure of sex could undermine the sexual orientation of the complainant otherwise. That is not to say that consent would be valid under Foran’s framework, a point I address below.
[61] Foran draws on Kennedy’s work on identity non-recognition as a basis for identifying cases of sex-by-deception that warrant a legal response but, as I will outline in part IV below, his argument departs from Kennedy’s in significant ways.
[62] Here, I treat heterosexual as interchangeable with straight and homosexual as interchangeable with gay/lesbian. Nothing in Foran’s analysis implies any distinction between these terms, nor can I see any basis for insisting upon one or, if there is a distinction relevant to the argument, for treating only the homo/heterosexual classification as going to the “sexual nature of the act.”
[63] Presumably those monosexuals surveyed by Blair and Hoskin who did indicate a willingness to “date” trans men/women as well as cis men/women do include trans people within the class to whom they experience sexual attraction. See Karen L. Blair & Rhea Ashley Hoskin, Transgender Exclusion from the World of Dating: Patterns of Acceptance and Rejection of Hypothetical Trans Dating Partners as a Function of Sexual and Gender Identity, 36 J. Soc. & Pers. Relationships 2074 (2018). Indeed, some cis heterosexual men privilege trans women as sexual partners (my thanks to Joe Fischel for this point). See Brandon Andrew Robinson, Transamorous Misogyny: Masculinity, Heterosexuality, and Cis Men’s Sexist Desires for Trans Women, 26 Men & Masculinities 356 (2022).
[64] I cannot find any strong evidence to support the empirical claim. Whilst only a small minority of monosexual respondents to the Blair and Hoskin survey, supra note 63, expressed a willingness to date trans men/women as well as cis men/women, there may be factors affecting “willingness to date” which do not affect the general inclusion of trans men/women within the class of persons to whom one might experience sexual attraction (fear of social exclusion, stigma or discrimination; for some heterosexuals, concerns around fertility). A conceptual claim that sexual orientation is grounded in sex is also controversial. See Lisa M. Diamond, What Is a Sexual Orientation, in The Routledge Handbook of Philosophy of Sex and Sexuality 81 (Brian Earp et al. eds., 2022); Robin Dembroff, What Is Sexual Orientation, 16 Philosophers’ Imprint 1 (2016); Sari M. Van Anders, Beyond Sexual Orientation: Integrating Gender/Sex and Diverse Sexualities via Sexual Configurations Theory, 44 Archives Sexual Behav. 1177 (2015); Charlotte Chucky Tate & Mercedes D. Pearson, Toward an Inclusive Model of Lesbian Identity Development: Outlining a Common and Nuanced Model for Cis and Trans Women, 20 J. Lesbian Stud. 97 (2016); cf. Kathleen Stock, XIV—Sexual Orientation: What Is It?, 119 Proc. Aristotelian Soc’y, 295, 300-07 (2019).
[65] Whilst Foran does not explicitly take these positions, they are the logical conclusion of his argument, as presented.
[66] I do not propose an alternative taxonomy of sexual acts, though I am obviously skeptical as to the value of an ontological taxonomy of sex acts grounded in sexual orientation. I suspect that categories of human sexuality and, insofar as they may follow, categories of sex acts, are unstable, shifting, relational, subjective, and fluid. As such, questions about these concepts may be as incapable of a legally in/correct answer as the question “are you a man?,” on which, see Joseph J. Fischel, Screw Consent: A Better Politics of Sexual Justice 104-27 (2019). However, nothing here rests on this point; my argument is limited to an explanation of why the particular taxonomy underpinning (implicitly) McNally, Lawrance, and (explicitly) Foran’s analysis is unworkable.
[67] A separate challenge to the argument that these cases involve a “difference in sexual nature” or necessarily undermine the sexual orientation of the defendant may be presented by straight-identified men who privilege and pursue trans women as sexual partners, but space precludes detailed consideration of this point here. My thanks to Joe Fischel for pointing this out.
[68] See, e.g., the case against Gayle Newland, supra note 53.
[69] See supra note 34.
[70] See generally Sharpe, supra note 32.
[71] See Foran, supra note 9, at 7 (“[I]n McNally, the victim chose to engage in heterosexual sexual activity with a boy. That choice cannot be transformed into a choice to engage in homosexual sexual activity with a girl just because both forms of activity [involved the same physical act].” (emphasis added)).
[72] Id.
[73] A term coined by Tom Dougherty, Sex, Lies and Consent, 123 Ethics 717 (2013).
[74] The only mental state that would be exculpatory is a reasonable belief that the complainant was aware of the defendant’s birth assigned sex (i.e., a reasonable belief that the complainant was consenting to the sexual act as it was “in reality”).
[75] It is also worth noting that in these cases there is no clear basis for claiming that the defendant’s conduct attacks or disregards the sexual orientation of the complainant. Of course, one could simply stipulate a further legal requirement that the information matter to the complainant because the complainant is monosexual (because if the notion that the non-disclosure attacks or undermines the complainant’s sexual orientation is to do some of the justificatory work, here, then liability ought only to extend to those cases where the information matters to the complainant for that reason) but some further justification for this requirement would be needed, outside of the “nature of the act” analysis.
[76] This would also strip the argument of its explanatory power, in isolating deception/non-disclosure as to sex from any other personal characteristic. See infra text accompanying notes 76-79.
[77] Including in the Supreme Court’s decision in For Women Scotland Ltd v. The Scottish Ministers, [2025] UKSC 16. See id. [2].
[78] Perhaps because the complainant is monosexual and does not personally regard trans men/women as men/women (and hence the sexual activity which took place becomes particularly distressing because it undermines their sexual orientation), as these factors appear significant to the rationales offered both in Lawrance and Monica.
[79] See supra notes 22-25.
[80] Where it can also be argued that there was no agreement to engage in the act which took place, see Jonathan Rogers, R v Lawrance—The Right Outcome, 8 Archbold Rev. 4 (2020).
[81] Particularly marital status, see supra note 54.
[82] Kennedy, Inducing Intimacy, supra note 10, at 3, 213-19. The foregoing analysis does not present a general response (either in defense or critique) of Kennedy’s view. I will assume for the sake of argument that transgender defendants do engage in wrongful identity non-recognition here, although I am skeptical that this is indeed the case, especially without any clear deception as to sex/trans status.
[83] Id.
[84] Kennedy, Inducing Intimacy, supra note 10, ch. 8.
[85] There would be no requirement for the prosecution to show that the information did matter to the particular complainant, though a reasonable belief that the information was not important would be exculpatory. Kennedy, Criminalising Deceptive Sex, supra note 10, at 213-19.
[86] Which indicates that the list functions as a regulatory device principally to meet rule of law concerns, rather than reflecting an internal limitation on the kinds of deceptions which might affect identity recognition.
[87] Kennedy, Inducing Intimacy, supra note 10, at 216-17.
[88] Supra note 11.
[89] Kennedy leaves room for the possibility of countervailing reasons, including those relating to public health policy and privacy concerns, against criminal liability in cases relating to HIV transmission, and pregnancy risk (see Kennedy, Inducing Intimacy, supra note 10, at 217). However, it is hard to see why these arguments should succeed where analogous arguments against imposing liability upon transgender individuals (see id.) should fail.
[90] Though, for Kennedy, this is an in-principle view, and “subject to a full consideration of countervailing concerns, such as privacy,” see Kennedy, Criminalising Deceptive Sex, supra note 10, at 95. For proponents of the McNally principle, any attempt to exclude deceptions on the basis of countervailing reasons against criminalization raises the same concern about the basis on which reasons against criminalizing trans defendants might be dismissed.
[91] See supra note 89 and, for more detailed discussion, Sharpe, supra note 44.
[92] As she regards both the state and the defendant as engaging in identity non-recognition, this is satisfied. See Kennedy, Criminalising Deceptive Sex, supra note 10, at 104.
[93] Foran, supra note 9, at 8-9.
[94] That is (in cases where there really is deception involved): should this deception be operative (i.e., legally relevant)?
[95] Space precludes meaningful engagement with this debate here, though I find the privacy concerns to be particularly compelling and considered them in some detail in Rachel Clement, Deception, Mistake, Privacy and Consent: A Conceptual Framework for Resolving the “Line-Drawing” Prohibition in Sex-by-Deception and Mistaken Sex (2018) (D.Phil. thesis, Univ. of Oxford 2018) (on file with author).
[96] Whilst, in principle, one might argue that the law can take cognizance of harm done to the complainant without elevating to the status of legal truth the complainant’s perspective on the defendant’s identity (and/or the nature of the sexual act which took place), this would require a departure from the identity non-recognition rationale, and a move towards the simple “trans status counterfactual.” Without the identity non-recognition rationale (in light of the problems with existing alternatives, canvassed in part III) we lack a plausible basis for distinguishing sex/gender history from any other personal attribute. The identification of a non-arbitrary way of distinguishing at least some other matters which might induce agreement to consent, especially those (like marital status) which cause particular concern for the courts, must be central to any plausible defense of the McNally principle.
[97] See Fischel, supra note 66, at 115.
[98] The argument that McNally is grounded in transphobia is set out in Sharpe, supra note 32.
[99] Insofar as wrongdoing on the defendant’s part is involved, on which see supra note 82.
Suggested Citation: Rachel C. Tolley, Sex, Gender, Identity, and Sexuality in the Law of Sex-by-Deception, 2 Mod. Crim. L. Rev. 207 (2026).