R v McNally [2013] EWCA Crim 1051 is a significant decision of the Court of Appeal that examined the question of whether gender deception can vitiate consent under the Sexual Offences Act 2003. The case involved issues surrounding consent, identity, and deception, and became a landmark authority for the proposition that consent obtained through deceit as to gender may not be valid. It also generated considerable academic and public debate about its implications for transgender and gender non-conforming individuals.
This case brief provides a detailed account of the facts, the issues considered, the decision of the court, the principle for which the case is authority, and the criticisms and subsequent developments that followed.
Facts of R v McNally Case
The defendant, Justine McNally, was biologically female. As a teenager, McNally formed an online relationship with another female teenager, referred to in court as M. The relationship began on an internet gaming site and developed over three and a half years. During this time, McNally presented as a boy named “Scott” and used this identity throughout their online interactions.
The complainant, M, was heterosexual and did not know that McNally was biologically female. Their relationship developed into a sexual one online, and later they arranged to meet in person when M turned sixteen. During these meetings, McNally continued to present as male, wearing a prosthetic device and introducing themselves as Scott.
On one occasion, McNally penetrated the complainant’s vagina with a dildo, pretending it was their penis. M later discovered McNally’s true biological sex after her mother intervened, which led to a complaint to the police.
In 2012, McNally pleaded guilty to six counts of sexual assault by penetration under section 2 of the Sexual Offences Act 2003. The court imposed three years of detention on each count, to run concurrently, and issued a three-year restraining order preventing contact with M and her mother.
McNally appealed against both the conviction and the sentence.
Issues Before the Court
The central issue before the Court of Appeal in R v McNally was:
- Does deception as to gender or biological sex vitiate consent under the Sexual Offences Act 2003?
The complainant had only agreed to sexual activity with someone she believed to be male. The question was whether this misrepresentation of gender invalidated her consent to penetration.
Decision of the Court in R v McNally
The Court of Appeal, presided over by Lord Justice Leveson, upheld the convictions but reduced the sentence. The three-year detention term was replaced with a sentence of nine months’ imprisonment, suspended for two years.
The court found that the complainant’s consent was conditional on the belief that she was engaging in sexual activity with a boy. Since McNally was not male, that condition was not met, and therefore the consent given was invalid.
In effect, the Court ruled that deception as to gender was fundamental to the complainant’s decision to consent, and thus the Sexual Offences Act 2003 applied to make the acts unlawful.
Conclusion
R v McNally [2013] EWCA Crim 1051 is a landmark case under the Sexual Offences Act 2003 that dealt with gender deception and consent. The Court of Appeal held that where a complainant consents to sexual activity believing the defendant is of a particular gender, that consent may be invalid if the belief is based on deception.