R v McNally

Deception as to gender can vitiate consent to sexual activity.

Citation
[2013] EWCA Crim 1051, [2014] QB 593
Court
Court of Appeal (Criminal Division)
Year
2013
Subject
Criminal Law
Topic
Sexual offences and consent

Facts

McNally, a girl, met another girl online when they were both about 13. For three and a half years, McNally pretended to be a boy called Scott in their online relationship. When they met in person, McNally, still pretending to be a boy, engaged in sexual activity with the other girl, including penetration. When the deception came to light, McNally was charged with sexual assault by penetration and pleaded guilty, and then appealed, arguing that the deception as to gender did not vitiate consent.

Legal principle

The Court of Appeal upheld the convictions. Leveson LJ said that, while in a physical sense the acts of assault by penetration were the same whether performed 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. The complainant had chosen to have sexual encounters with a boy, and her preference was deliberately removed by the deception, so she had not freely agreed under section 74 of the Sexual Offences Act 2003.

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