R v McNally (Justine)
Court of Appeal
Citations:  EWCA Crim 1051;  QB 593;  2 WLR 200.
The defendant was biologically female. As a teenager, they began a relationship online with another female teenager, the complainant. The defendant was presenting as a boy called ‘Scott’ online. The complainant, who was heterosexual, did not know that the defendant was biologically female.
When the defendant was 17 and the complainant was 16, they met up in person. The defendant continued to present as male, and during a sexual encounter penetrated the complainant’s vagina with a dildo pretending it was the defendant’s penis. The complainant eventually learned the truth.
The defendant was convicted of assault by penetration under s.2 of the Sexual Offences Act 2003. They appealed the conviction on the grounds that the complainant gave valid consent to the penetration, despite not knowing it was a dildo.
- Does deceit as to the defendant’s sex vitiate consent?
The Court of Appeal upheld the conviction. The complainant had only agreed to have sex with a boy. Since the defendant was not male, the complainant’s consent was invalid.
This Case is Authority For…
Deception as to gender or sex can vitiate a person’s consent.
The Court of Appeal in McNally suggested that the reason the lie in this case vitiated consent was because the complainant’s consent was conditional on the understanding that the defendant was male. This suggests that if the complainant had merely been mistaken as to the defendant’s sex, without any positive contribution on the defendant’s part, the consent would have been valid.
The idea of ‘conditional consent’ has been disapproved of by the Court of Appeal in R v Lawrance  EWCA Crim 971. In that case, the Court argued that the distinction lies in whether the deception relates to the ‘physical performance’ of the sex act or some extraneous matter. Whether the complainant was actively or passively deceived is irrelevant.