What does the law say about consent and disclosing facts about yourself?
On 25 September 2026, the Divisional Court dismissed a challenge to the Crown Prosecution Service’s
guidance on deception and sexual consent from the pressure group Sex Matters who objected to the CPS guidance that deception as to “gender identity” was not capable of vitiating consent. Sex Matters also argued that the guidance was so unclear that a prosecutor considering it would be misled as to the correct legal position. This case and thus this post are about how deception in respect of sex and/or gender identity might affect whether consent has been properly given. You can read more about the
general law on consent in sexual offence cases in our guide, which explains the wider legal position.
The law
What is the legal test for consent?
Section 74 of the Sexual Offences Act 2003 says a person consents if they agree by choice and have the freedom and capacity to make that choice. There are some things, set out in section 76, that establish conclusive presumptions that there was no consent. These concern situations where there has been deception about the nature or purpose of the act, or impersonation of someone personally known to the complainant. Most contested deception cases do not fall into those boxes and so must be considered under section 74.
What does the CPS guidance say?
The guidance disputed by Sex Matters is found under the heading “Deception as to sex”. It discusses issues relating to gender identity, particularly it makes the point that “sex” is frequently used to mean sex at birth while “gender” is more related to societal norms and expectations. Although it accepts these terms are also used interchangeably. The guidance also discusses the law based on previously decided court cases, which can be summed up thus: “
- For consent to be vitiated by a deception falling within section 74, the deception must be closely connected with the sexual act or the sexual nature of the activity rather than its consequences or the broader circumstances in which the sexual act takes place.
- Any novel circumstances must be considered by reference to the statutory definition, namely whether the alleged victim has agreed by choice and has the freedom and capacity to make that choice.
- Consent can be vitiated by an express deception or by a failure to disclose.
- Therefore, the test to be applied is whether a deception (however that deception is operated) is sufficiently closely connected to the performance of the sexual act that the complainant cannot be said to have made a free choice to participate in it.
” The guidance goes on to give advice as to how prosecutors should deal with cases involving trans people who have been accused of deceiving a sexual partner as to their sex or have failed to disclose their status is a situation where their sexual partner has been misled about the suspect’s sex as a result.
What were the issues in Sex Matters v DPP?
The charity Sex Matters argued that the CPS had gone too far by treating deception about gender identity, as distinct from biological sex, as potentially capable of negating consent. It also said the proposed wording was too unclear to guide prosecutors lawfully. There were too many objections to specific points within the guidance for us to go into now – you can read them in the judgment. The court has helpfully quoted the relevant parts of the guidance and highlighted the offending parts in bold. The personal view of this post’s author is that the intention behind the objections is to create a legal situation where anyone who is not cisgender would have to disclose their gender identity upfront before any sexual contact began in all circumstances to ensure there could be no claim the other person had not consented. That interpretation is supported by the court’s summation of the submissions made by Sex Matters barrister, Sarah Vine KC, “Ms Vine submitted that a person who obscured their sex and presented as the opposite sex was potentially engaging in a form of deception and their motivation for doing so was irrelevant to the question of criminal liability. The more persuasively a person presents as the opposite sex, the greater the imperative for them to be candid about their concealed sex. Ms Vine accepted that the effect of her submissions was that there must be candour about a person’s biological sex when they were proposing to engage in sexual activity; this was the price that the law exacts for consent to be genuinely free in this highly sensitive context.” Sex Matters also argued that the CPS guidance was confusing because it repeatedly appeared to conflate sex and gender by using the words, “sex and/or gender”. Ms Vine went on to argue to Sex Matters that by setting out information about the life experiences of trans and non-binary people the guidance gave the impression that trans or non-binary suspects were less likely to be culpable that other suspects. She argued that the guidance treats trans and non-binary suspects in a “surprisingly and uniquely sympathetic tone, focusing on personal difficulties that trans suspects may have encountered, in a manner that was quite different from the way that suspects are usually referred to in CPS guidance.” The court considered the cases that sit behind the CPS guidance and concluded that the law is correctly stated in that guidance. The court did agree with Sex Matters that the language used was unusually sympathetic noting that, “[t]he effect is that the passage reads as though its subject were a vulnerable person in need of protection, rather than a suspect whose conduct is under scrutiny.” Ultimately though, the court did not believe that the guidance had erred in law. The court therefore rejected both of Sex Matters’ complaints.
The useful lesson from the judgment
The first and most obvious takeaway is that the law is not clear or settled. Sex Matters’ case was built upon the proposition that the law is clear. The court examined the case law and disagreed saying that the past appeal court decisions on deception are difficult to reconcile. They gave an example of court decisions that a deception as to whether a condom will be worn, with its obvious risk of an unplanned pregnancy, is capable of negating consent but a deception as to fertility, entailing a similar risk, is not; in both instances the deception might be thought fundamental to the activity to which the complainant believed she was consenting. They also made the point that there have been no appeal court cases that have considered deception as to gender identity in the context of a Sexual Offences Act allegation. It therefore means that prosecutors faced with a charging decision will have to make a difficult decision based on an incomplete legal landscape and conflicting previously decided case law. There can be few situations in which
strong representations put forward by a defence solicitor to the prosecutor are likely to have more impact than this. Anyone being investigated should seek advice as early as possible. If you need advice about a specific allegation,
contact Chetwode Criminal Defence Solicitors so we can begin working on your case as early as possible and give you the best opportunity of avoiding prosecution and conviction.
