Justine McNally was a confused teenager. They used a male avatar, Scott Hill, on a social networking game, and when they was thirteen they met M, who was a year younger, through that game. Just after M’s sixteenth birthday, they met in person. Sexual activity took place. Was it a sexual assault?
We don’t know if Justine/Scott is trans. From the Court of Appeal judgment, The pre-sentence report spoke of a history of self harm and confusion surrounding her gender identity and sexuality, which were resolving. From a statement to the police, aged 13 they used a male avatar “because it made her more comfortable”. The psychologist said that there was evidence of rationalisation, distorted thinking processes and victim-blaming.
The judges did not find the appellant entirely credible; but, confusion over gender identity and sexuality would make honesty very difficult. There is nothing shameful about homosexuality or transsexuality, but teenagers receive the message that there is. Internalising that, unable perhaps to admit truth to ourselves, we start to make statements which we hope might be acceptable, even if they are inconsistent- to ourselves as well as others. You have to come out to yourself before you can come out to anyone else. “It made me more comfortable” is a thing I might feel able to say before I would definitely have said, “I am trans”.
When they met, Justine/Scott wore a strap-on. This is teenage exploration: what is it like? How does it feel? What do I want- for it is not what the culture tells me I should want. Even straights find this difficult.
Unless M had consented, or Justine had reasonably believed she had, the sexual activity is unlawful. In the Sexual Offences Act 2003, a person consents if [s]he agrees by choice and has the freedom and capacity to make that choice. Certain deceptions, according to the judges, vitiate that capacity. The evidence relating to “choice” and the “freedom” to make any particular choice must be approached in a broad commonsense way, they hold.
When was consent vitiated? In Sweden, Julian Assange promised to use a condom, but did not. In an English case, a woman consented on the basis that the man would practise coitus interruptus, but he allegedly intended to ejaculate inside her. Both would be rape in English law. However, In reality, some deceptions (such as, for example, in relation to wealth) will obviously not be sufficient to vitiate consent. Failure to disclose HIV status did not vitiate consent, but a deliberate false statement that the accused was HIV negative might. The accused’s false claiming to be unmarried, or to be rich, does not vitiate consent- beyond the judges’ “common sense”, or prejudice, it is not clear why.
While, in a physical sense, the acts of assault by penetration of the vagina are the same whether perpetrated by a male or a female, the sexual nature of the acts is, on any common sense view, different where the complainant is deliberately deceived by a defendant into believing that the latter is a male. Assuming the facts to be proved as alleged, M chose to have sexual encounters with a boy and her preference (her freedom to choose whether or not to have a sexual encounter with a girl) was removed by the appellant’s deception.
A lesbian pretending to be a boy has no defence. I find this an injustice, at least in the case of hurting, confused, self-harming Justine McNally. She is the victim of society, not the guilty party.
Trans people have the difficulty that while I assert that I am female, the law stated that I was male, until I got my gender recognition certificate. When I expressed myself female before transition, there was no deliberate deception. The law cannot have it both ways. The law said I was male; however in that case there are two groups of people who express female- women, and people like me. So if a prospective partner saw me presenting female, the possibility should be in her mind that I am that sort of person. I did not dress female to deceive anyone- I dressed female because I am who I am.
After my GRC, there is certainly no deception. I am female, according to law.
The problem is that the law considers the choice of the complainant. What would make the complainant change her/his mind? Wanting sex with a woman, but not a trans woman, might. That might make people imagine that “the sexual nature of the act… is different”.
The Crown Prosecution Service provides guidance on whether a charge could be proved.
Whether there has been deception as to gender will require very careful consideration of all the surrounding circumstances including:
How the suspect perceives his/her gender;
What steps, if any, he/she has taken to live as his/her chosen identity; and
What steps, if any, he/she has taken to acquire a new gender status.
Now, my gender is Clare. Some would see me as a man, and I won’t worry about that too much cos life’s too short. Some see me as a woman, and that makes me happy. Some see me as a trans woman, and that is not much better than seeing me as a man, frankly. If I explained that to a policeman, that might make my position worse than someone who said “I’m a woman”.
All steps to live as the chosen identity should matter. Before I decided that I would transition, I dressed female to see if I could bear it; if the abuse had been too great, I might have had to just present male. In my own mind, that was tied up with the question “Am I transsexual?”
The CPS also must decide whether prosecution is in the public interest. They should consider Whether the offending occurred as a result of the suspects uncertainty or ambivalence about his/her gender identity; but that did no good to Justine McNally.
What about “reasonable belief” in consent? If you are a trans woman and you assert to everyone, “I am a woman”; and you don’t make any attempt to hide your body from the sight of your partner; you are probably OK. The people who are actually prosecuted are confused and hurting, in shame and fear of their identity and sexuality. That is, the most vulnerable of us are the ones most likely to be criminalised.