Man jailed for using fake penis to have sex with two Scottish women is freed

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A transgender man 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 in September 2018 on sexual assault charges.

Carlos Delacruz, 35, of Falkirk, was jailed for three years at Edinburgh Sheriff Court in September 2018. Picture: TSPL

Carlos Delacruz, 35, of Falkirk, was jailed for three years at Edinburgh Sheriff Court in September 2018. Picture: TSPL

The court heard how Mr Delacruz, who was born a girl but has since became a man, pretended to the women that he had a penis.

However, he didn’t have a male member and used a prothesis to make love to the women.

The Spanish citizen didn’t have their consent to use an object to penetrate them and Mr Delacruz pleaded guilty to sexual assault.

Sheriff Alison Stirling sentenced Mr Delacruz to three years in prison because she believed that custody was the only disposal available to her.

But at a hearing at the Court of Criminal Appeal in Edinburgh on Tuesday, judges Lady Paton and Lord Drummond Young quashed Mr Delacruz’s prison sentence.

The appeal judges instead imposed a three year community payback order on Mr Delacruz and ordered him to perform 240 hours community service.

They imposed the order after hearing from defence advocate Shelagh McCall QC who argued that people who had committed similar offences had avoided prison sentences.

• READ MORE: Man ‘with no penis’ jailed for sexually assaulting women

Lady Paton said: “We will substitute the custodial term for a three year community payback order which will include a supervision component.

“We will also attach a condition that the appellant will also have to perform 240 hours of unpaid work in the community.”

During proceedings earlier this year, the court heard how Mr Delacruz told his victims that 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 that 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 that 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 that he now had a new partner and that they had been together for a year.

Passing sentence, Sheriff Stirling referred to remarks Mr 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.”

On Tuesday, Ms McCall told the appeal judges that Sheriff Stirling had misunderstood her client’s position and that this misunderstanding had resulted in her imposing an ‘excessive’ sentence.

She said that he had told the social worker that he accepted that he should have obtained consent from the women to use an artificial penis.

Ms McCall also said that Mr Delacruz knew that he didn’t have an automatic right to have sex using a prothestic.

She added: “The sheriff has misunderstood the appellant’s position in the social work report.”

Ms McCall 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 that Mr 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 that Sheriff Stirling should have also considered Mr 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 Mr Delacruz, who observed proceedings via video link from prison.

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