A former woman who was imprisoned for using an artificial penis to have sex with two females has won a legal battle to be freed from prison.
Carlos Delacruz (35), of Falkirk, was jailed for three years at Edinburgh Sheriff Court back in September on sexual assault charges.
At the time the court heard how Delacruz, born a girl but has since became a man, pretended to his victims he had a penis.
However, he didn’t have a male member and instead used a prothesis.
The Spanish citizen did not have their consent to use an object to engage in sexual intercourse with them and he pled guilty to sexual assault.
Sheriff Alison Stirling sentenced Mr Delacruz to prison because she believed custody was the only disposal available to her.
At at a hearing of the Court of Criminal Appeal in Edinburgh on today, judges Lady Paton and Lord Drummond Young quashed Delacruz’s prison sentence.
The appeal judges instead imposed a three-year supervised community payback order and ordered Delacruz to carry out 240 hours community service.
They imposed the order after hearing from defence advocate Shelagh McCall QC, who argued people who had committed similar offences had avoided prison sentences.
During proceedings earlier this year, the court heard how Delacruz told his victims he was self-conscious about his body and preferred to keep the lights off. Both women contracted thrush and described intercourse with him as extremely painful.
When the matter was reported to the police in May last year Delacruz was examined and found to have no penis.
Delacruz, admitted having sex with one woman between May 2013 and January 2016, and with the other woman between August 2016 and May 2017, with an unknown object without their consent.
Defence lawyer Cameron Tait said from the age of eight or nine his client began to have a male physical appearance and was declared a man when he was 22.
Mr Tait said the relationship with the two women had been loving, but he had used a prosthetic penis, of which neither woman had been aware.
The court was told Delacruz now had a new partner and that they had been together for a year.
Passing sentence earlier in the year, Sheriff Stirling referred to remarks Delacruz allegedly told a social worker who had been commissioned to write a report into his character.
She said: “You have shown a complete disregard for each complainer’s physical integrity and right to decide what happens to their own body. Instead, you emphasised to the social worker preparing the report your right to have sexual intercourse with a prosthetic penis and without informing either complainer of this.”
At the Court of Criminal Appeal today, Ms McCall told the appeal judges Sheriff Stirling had misunderstood her client’s position and this misunderstanding had resulted in her imposing an “excessive” sentence.
She said he had told the social worker he accepted he should have obtained consent from the women to use an artificial penis.
Ms McCall also said Delacruz knew he did not have an automatic right to have sex using a prosthetic.
The defence advocate also made reference to a case of Christine Wilson which came before the High Court in 2013.
Wilson, who was then aged 25, was ordered to carry out 240 hours community service for posing as a man to two teenage girls and having sexual relationships with them.
Judge Lord Bannatyne heard Wilson, of Aberdeen, had Gender Identity Disorder.
Ms McCall said the Wilson case and other similar cases showed Delacruz could have been given an alternative sentence to custody.
She also said her client had been assessed at being a low risk of committing another sexual offence.
Ms McCall said Sheriff Stirling should also have considered Delacruz’s personal circumstances.
She added: “She failed to give sufficient mitigatory weight to the appellant’s gender dysphoria and gender history.”
The appeal judges then agreed to quash the jail sentence given to Delacruz, who observed proceedings via video link from prison.