R v McNally [2013] EWCA Crim 1051

Key point

• Deception as to one’s gender can vitiate consent under s.74 of the Sexual Offences Act (SOA) 2003.

Facts

• The defendant (D) and the victim (V) were in an online relationship.
• D was a girl but V believed D was a boy as D called herself ‘Scott’ and wore men’s clothing.
• When they met in-person, D penetrated V with a dildo on multiple occasions.
• V claimed she would not have consented to this if she knew D’s true gender.
• D was convicted of the offence of assault by penetration under s.2 SOA 2003 at first instance.

Issue

• Had D’s deception as to gender vitiated V’s consent as defined under s.74 SOA 2003?

Held (Court of Appeal)

• Appeal dismissed; D’s conviction was upheld.

Leveson LJ

• D’s deception deprived V of V’s “freedom to choose” because “[V] 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.”: [26]
• Not all deceptions will vitiate consent, such as those relating to one’s wealth: [25]
• Here, though, the deception is relevant because it altered the sexual nature of the act of penetration: [26]

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