R v McNally [2013] EWCA Crim 1051

Facts

  • Justine McNally, presenting as male, engaged in sexual activity with a female partner who believed McNally was biologically male.
  • The partner’s consent to sexual acts was given under the assumption of McNally’s male gender.
  • McNally concealed her biological sex during the relationship, resulting in criminal charges when the deception was uncovered.
  • The legal proceedings focused on whether the deception about gender identity negated the victim’s consent.

Issues

  1. Whether lying about one's gender identity is sufficiently significant to vitiate consent under the Sexual Offences Act 2003.
  2. Whether deception about a fundamental characteristic, such as gender, can render otherwise consensual sexual activity criminal.

Decision

  • The Court of Appeal upheld McNally’s conviction, finding that deception regarding gender identity could remove a partner’s consent for sexual activity.
  • It was determined that consent must be informed and based on the truth concerning key personal characteristics.
  • The court emphasized that the complainant’s freedom to choose was undermined by McNally’s deception.
  • The judgment referenced the Sexual Offences Act 2003, affirming that valid consent requires awareness of the true nature and circumstances of the act.

Legal Principles

  • Consent in the context of sexual offences requires both truthfulness and a genuine freedom of choice.
  • Deception concerning a fundamental characteristic, such as biological sex, can vitiate consent under the Sexual Offences Act 2003.
  • The ruling clarified that not all deceptions are sufficient to vitiate consent, but those affecting critical personal characteristics may do so.
  • The case established that the law’s protection focuses on safeguarding the autonomy and informed agreement of participants in sexual relationships.
  • Precedent and statutory interpretation highlight the necessity of honesty for lawfully obtained consent.

Conclusion

The Court of Appeal in R v McNally established that deception as to gender identity can vitiate consent under the Sexual Offences Act 2003, making sexual activity unlawful even where there was apparent physical agreement. The case marks a significant legal development concerning consent, deception, and the protection of individual autonomy in sexual relations.

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