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R v McNally [2013]

Facts

  • The defendant, born a female, pretended to be a boy and became sexually acquainted with ‘his’ girlfriend
  • This gender deception was later discovered

Issue

  • Was consent to sexual acts carried out by the defendant vitiated by the gender deception?

Decision

  • Yes

Reasoning

  • Section 76 was not invoked, but gender deception did vitiate consent on the facts
  • Appeal as to legal advice dismissed, but lesser and suspended sentence substituted
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