Stonewall's Duplicity Problem

Why the controversial charity's attempt to rewrite the law of rape risks making lesbians and gay men second class victims

In a less than challenging interview in the Guardian on 28th March 2025, Stonewall’s new CEO, Simon Blake, made a pitch for a “reset” in how the embattled charity is perceived and chose as his vehicle the forthcoming Government ban on “conversion practices”. He relied on a series of a statistics said to support such a ban including a striking claim that 12% of those surveyed had “experienced “corrective rape” or sexual assault, all in an attempt to change their sexuality or gender identity”. The basis for these statistics has not been published, and the sample group is apparently composed of “LGBTQ+ Britons” with all the attendant problems that brings in terms of cohort specificity.

Strikingly, the report continued, (emphasis added), “While some of these are already illegal, campaigners hope that drawing them together under a blanket ban on conversion practices would strengthen recourse for victims as well as acting as a deterrent.” Any criminal lawyer reading that sentence would immediately be concerned, I certainly was. The reason for that concern is “drawing them together” implies that a criminal act can at once be the offence of rape and also Stonewall’s new offence of a conversion practice. For reasons I will outline below, duplicating criminal liability in the case of rape could have disastrous consequences.

Problems with overlapping criminal liability

If I punch a man and fracture his jaw, I could be charged with any number of offences. The CPS could prosecute me for “section 18 inflicting Grievous Bodily Harm” if they thought I intended really serious harm (where the maximum sentence is life and prison sentences almost always follow). If they thought the fracture was because my punch was reckless they could opt for the lesser offences of “section 20 Grievous Bodily Harm without intent” or “section 47 assault occasioning actual bodily harm”, both of which carry a maximum sentence of 5 years. If their witness refused to cooperate and they were stuck with a trial heading for a disaster, they might even accept a plea deal if I offered them a plea to “common assault” where the maximum sentence is 6 months. You can see here, the choice of charges dictates the maximum sentence and says something about how seriously the crime is prosecuted and recorded. In some areas, overlapping criminal liability makes sense.

Let us now consider the offence rape. In general terms the CPS and successive Home Secretaries take the view that rape must be prosecuted seriously and that it should called what it is. I can say from years of criminal practice you do not tend to see plea deals in rape where the defence offer a “section 3 sexual assault” and bargain the matter down. I have never seen such a deal. Rape tends to be regarded as so serious that it should be prosecuted as such and that victims have at the very least a prosecution based on the fact the Crown say the Defendant is a rapist (whether they secure a conviction or not).

This will all change if Stonewall are correct and the new conversion offence really does “draw together” offences including rape. Serious unintended consequences will follow. For the first time in criminal law there will be an alternative to rape but only in cases where the victims are lesbians or gay men. It is hard to reconcile that with the seriousness the CPS and Governments bring to this area of prosecution. For the first time in criminal law a rapist could be called simply a “person guilty of conversion practices” and prosecuted on that basis. Many would argue that sends out entirely the wrong signal and that rapists should be called what they are and prosecuted for that offence. It could also be said that doing this generally for the offence of rape is bad enough, but introducing a two tier victim status in the case of lesbians and gay men is a particularly strange thing for a trans focused charity to do.

Implications for charging standards

When the CPS bring proceedings, the defendant is charged according to national charging standards which are intended to promote consistency and fairness. To take the GBH example above, a prosecutor would consult the “offences against the person” charging standard and decide whether a section 18, section 20, ABH or common assault was the best reflection of the alleged criminality. They would do this by looking closely at the facts of the case, considering wider evidence and consulting with the victim where appropriate. I question how a charging standard works on the new Stonewall approach to “drawing together” the offence of rape and a conversion practice.

Where do the CPS draw the line here? When is something a rape of a lesbian or gay man and when is it a conversion practice? I have not seen the new government draft bill for conversion practices, but every draft of such legislation up till now has had a lower maximum sentence than the life sentence available in the case of rape. It we assume that this remains the case (which seems to me likely), how could it ever be proper or conscionable to say to a victim “because this was corrective rape, your rapist will face a lower possible maximum sentence and he will not be called a rapist in law or on his criminal record, rather he will be an offender guilty of a conversion practice”.

Implications for challenging rape prosecutions

Overlapping criminal liability can cause all sorts of issues at the “decision to prosecute” stage. In principle, a defendant charged with rape could seek a judicial review of that decision and argue they ought to have been charged with a conversion practice. Now, I wouldn’t fancy their chances winning that argument ultimately in the High Court, but that is very different to imagining some rapists wouldn’t frankly try it on as a way of wearing down a victim. I can equally see defence lobbying in the case of rape to try to get the crown to accept a conversion practice alternative. That could be letters, raising the matter in court informally or even arguing that the rape prosecution is an “abuse of process” (which is a type of application aimed at stopping a prosecution). Now, like the judicial review, I wouldn’t fancy the chances of the defence here where the Crown are committed, stalwart and have a willing witness committed to seeing things through. But not every case is like that.

We have a court system beset with backlogs. We have real world cases where many victims, quite understandably, might say to the CPS they would rather a guilty plea to anything if it saved them seeing their rapist again and facing cross examination in court. Plea discussions are a reality in our system, cases of rape often have evidential issues and any one word against the other case is never a guaranteed win for the Crown. The pressure to accept a lesser plea here is obvious, and that pressure would be increased if, for example, this type of conversion practice was counted in the statistics for successful prosecutions.

Issues for rape trials

Imagine a defence closing speech in a rape case where the jury start their considerations with the view the defendant is probably guilty, but end their deliberations with a conviction after, say, 12 hours retirement. Now, imagine the same jury, but defence counsel has said in a speech, “My lay client accepts what he did was a conversion practice, and you can rest assured that if you acquit him of rape, he will still yet be punished for that very serious offence”. Now remember politicians and Stonewall have been saying this is a serious offence in public discourse. It’s not far fetched to imagine a fair minded jury might feel reassured by that speech and resolve the case via the conversion offence as a half way house. I want to emphasise this happens in real criminal practice, ask any solicitor or barrister. I can’t tell you how many defendants obviously guilty of racially aggravated assaults end up with assault convictions and acquitted of the racial aggravation aspects, I don’t think I’m spilling any trade secrets here - juries like half way houses. This is because collective decision making lends itself to compromise.

Sentencing implications

Let’s consider how a “corrective rape” is currently dealt with on sentence now with reference to the rape sentencing guidelines available here. If we look at the “culpability” section we can see that where we have an “offence motivated by, or demonstrating, hostility to the victim based on his or her sexual orientation (or presumed sexual orientation) or transgender identity (or presumed transgender identity)” the case is to be placed in category A, the highest category. That gives sentence starting points, depending on other factors, of 15, 10 and 7 years. This demonstrates how the offence of rape is already built to deal with precisely the situation Stonewall contemplate. By contrast, as I’ve said before, every draft of the conversion offences I’ve seen up to this point had maximum sentences of 4, 8 or 10 years. So we risk here introducing a “rape light” offence when we arguably don’t need to, because our rape guidelines are already doing the job Stonewall want.

In criminal law serious offences attract the “dangerousness” provisions. This means that where a court thinks a defendant is a danger to the public a sentence can be extended or a life sentence imposed. For rape we see this at stage 5 in the guideline. I query whether the conversion offence attracts the “dangerousness” provisions. In the drafts up till this point it has not. If this remains the case, we have here a second class form of rape in terms of this sentencing power.

In the rape guideline at stage 7 the court considers ancillary orders on sentence. These are Sexual harm prevention orders (SHPOs) under s103A of Sexual Offences Act 2003, Slavery and trafficking prevention orders under s.14 of the Modern Slavery Act 2015 and then separate to those orders an offender automatically must comply with the provisions of the sex offender register (no court order is required here, this is automatic). I ask what happens with a conversion practice, is it a sexual offence in the true sense such that these orders are available? Does it trigger the sex offenders register? How could it do that if it is the same offence designed to deal with non sexual forms of “conversion practices”? In reality, it could not. This is the problem with “drawing together” criminal offences that are not alike.

Did Stonewall mean to argue for a downgraded form of rape or was this unintended?

Stonewall relied on rape statistics it produced to argue this offence was necessary. The commentary in the Guardian piece immediately following that statistic talks about drawing together behaviour, some of which is already criminal. My reading of that is it can only be a reference to rape because otherwise I question what is meant by the thing that is already criminal that needs to be drawn together. But I could be wrong I suppose.

It could be that this Stonewall are using rape statistics while maintaining our current rape law is perfectly adequate (though that would make the mention of rape in their campaign rather odd). It could be they have other offences in mind they wish to be draw together. If that is their meaning I think they should say so. Rape law is too important and fundamental to be the subject of uncertainty or slipshod public campaigning.

The alternative of course is that I’ve read what they mean correctly. If I have, as I hope this piece makes clear, they are arguing for a system where the constituency they used to service before their focus on trans issues potentially become second class victims in the case of the most serious sexual offending there is.

If this is the case the Government should be clear on this matter and approach this trans focused charity Stonewall’s attempt at “a reset” with the utmost caution. The law of rape is too important to be left to ideologues looking for a reset.