Can a trans person be arrested for rape if they don’t disclose their medical history first?

Transgender women are far more likely to go to prison or jail than people in general. Pat Sullivan, AP

Sophie Cook, a UK trans activist, recently warned that under current law, transgender people could face rape charges and jail time for not disclosing their medical history to their sexual partners.

According to Section 2 of the Sexual Offences Act 2003, a sexual offense is committed if a person intentionally penetrates the anus or vagina of an non-consenting partner, and section 74 adds that “a person consents for the purposes of this Act if he agrees by choice and has the freedom and capacity to make that choice.”

As the law as written, however, the non-disclosure that someone is transgender could be viewed as deceptive, and would challenge the “freedom and capacity” of a partner who doesn’t otherwise know they are in sexual contact with a trans person.

In a worst-case scenario under the law, kissing and hugging could be seen as sexual assault, while penetrative sexual contact would be considered rape, provided the partner of the trans person claimed they did not know their partner was transgender.

Cook is concerned about the effect this has on transgender people in the United Kingdom.

“By forcing transgender people to disclose their history to prospective partners the law is not only infringing their human rights it’s also reinforcing the bigoted idea that trans people are in some way abhorrent and something that people need to be warned about,” said Cook at a recent conference held in London.

She continued, “At what point should the disclosure be made? As you’re snuggling up in bed? And run the risk of a transphobic assault and potentially worse? Perhaps we should just be forced to tell everyone we meet at first introduction, just in case we end up in bed together.”

While the Crown Prosecution Service (CPS) has said they have guidelines in place to prevent abuse of these rules, including guidelines to ensure transgender equality management, activists like Cook fear that the lack of clarity in the laws leave it open to abuse.

There has already been one case, in November of 2015, which highlights the issue. In that, Gayle Newland was jailed for eight years after not disclosing to her partner than they were not male, including after they had sexual intercourse. The case is pending appeal.

Cook also fears that the law’s ambiguity could be taken even farther, suggesting the issue of deception could ensnare people who have had cosmetic surgery, married people having affairs, or even those who have had previous partners who their current partner are not accepting of.

“Surely a racist could complain to a judge that he felt used after realising that the woman he slept with had previously had a black partner, or the homophobe object when discovering that his girlfriend had ‘experimented’ with other women at Uni.”

While Cook, who was the first transgender news reporter on European television, has no concerns surrounding her own status as a transgender woman with her partners, she is concerned how this law affects all transgender people, particularly those who not desire to live as “out” a life as she.

“My passport says female, my driving license says female, why should I present myself as anything other,” said Cook. “I am out and proud that I’m transgender and don’t have a problem with my history but not all trans people feel comfortable or safe disclosing those years when they were someone else and they have a right to that privacy and to have that choice respected by the law.”

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