R v McNally
Deception as to gender can vitiate consent to sexual activity.
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.
Related cases on sexual offences and consent
- Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin)
- R (F) v Director of Public Prosecutions [2013] EWHC 945 (Admin), [2014] QB 581
- R v B [2006] EWCA Crim 2945, [2007] 1 WLR 1567
- R v Bree [2007] EWCA Crim 804, [2008] QB 131
- R v Devonald [2008] EWCA Crim 527
- R v H [2005] EWCA Crim 732, [2005] 1 WLR 2005
- R v Jheeta [2007] EWCA Crim 1699, [2008] 1 WLR 2582
- R v Lawrance [2020] EWCA Crim 971, [2020] 1 WLR 5025
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