Consent to sex, deception, and the prosecution of trans people

You are a trans woman. You get chatting to someone in a bar, and go off to a dark corner to make out. Then they shout, “Ew, gross, you’re a man!” Could you be prosecuted for sexual assault?

Tonia Antoniazzi MP and transgender crime statistics

Tonia Antoniazzi MP is a transphobe, who uses her voice in parliament to attack trans rights and attempt to make trans people look bad.

On 17 May 2021, in a debate on the Queens Speech on violent crime, where Labour MPs should have been pointing out the many failures of the Tory government, Antoniazzi chose to make a misleading case against trans people, in order to smear us as sex offenders.

How does recording sex by gender identity affect the profile of sex offenders? Does it matter?

Most victims of sexual offences do not report them, so the number of crimes in crime surveys is far higher than the number of charges or arrests. About 3% of women were estimated as having been sexually assaulted in 2017, from a survey of a representative sample, and 1% of men. In 2016 there were 53m UK adults, so that is around 800,000 women sexually assaulted, and around 200,000 men.

However only 6960 offenders were found guilty of sexual offences in all courts in England and Wales in 2017. The conviction rate was 62%, but there is a time lag between charge and conviction or acquittal. So say 11,000 people were charged in court.

Women make up 2% of prosecutions for sexual offences, says Antoniazzi. You can download a spreadsheet. In 2017/18, 28,589 males were arrested for sexual offences, and 628 females.

Say 0.1% of women are trans women who have taken some step towards transition. So, say 25,000. Say they have “male patterns of offending” as anti-trans campaigners claim, though this is not backed up by evidence. If the proportion of trans women was 46 times the proportion of cis women who were arrested for sex crimes, 26 might be arrested for sexual offences, and six convicted. If they are counted as women, then the number of women arrested has gone up by 4%.

But if there were 26 trans women who were counted, or not, as women, the proportion of arrestees who were women would go up from 2.15% to 2.24%. That is, a tiny percentage of arrestees are women, whether trans women are included as women or not.

That statistic, that 0.1% of women are trans women, is my best estimate, but it is not clear how many people identify as trans, ever express themselves in public as their true gender, or take steps towards transition. The census, which starts to be published next year, may start to give us a better idea.

A tiny proportion of those arrested for sexual offences are female, and that proportion is not changed beyond a rounding error whether trans women are included as women or not.

Antoniazzi says, “We need to count sex”. She objects to police forces counting suspects’ sex on the basis of gender identity. She wants trans women counted as men.

Even if trans women offend 45 times as much as other women, the increase from 2.15% to 2.24% of offenders is tiny. There would be no change in conclusions drawn about the need to protect women and girls from male violence, or the relative threat from women or men. Trans women need protection just as cis women do.

Whether we need as a society to take violence against women, or men, more seriously is shown by the proportion of offences resulting in arrests. Of about a million sexual offences, there are 6960 convictions. Most victims do not report the offence.

Recording trans women as men does not make any change to the lessons we learn. Women are vulnerable and need more protection than we have. Such protection might be improved by greater resources for police, and greater cultural condemnation of male sexual violence. The culture still makes excuses for men, and even glorifies male sexual aggression. Complaining that trans women criminals should be called “men” actually reduces the effort to protect women, because it diverts campaigning energy from a real threat to a harmless minority.

And, it would make life harder for vulnerable trans women in the justice system. If we are recorded as men, we have yet more evidence that the system is against us for who we are, rather than what we have done.

It would probably backfire on the anti-trans campaigners, showing trans people do not have a high rate of sex offending. They want to say, Look, look, there were six trans women convicted of sexual offences!! Trans is Bad!! They’re all like that!! Of course we are not all like that, and I am not a sex offender, but the extremists use such stories to radicalise each other.

An MP should consider the 800,000 women who suffer sexual assault in a year, and speak up for them, not speak against trans people, a tiny, vilified minority.

The records of “biological sex” of offenders she demands would tell us nothing except that some trans women are criminal. We know that already. If it is ridiculous to say Rosemary West is a murderer therefore cis women cannot be trusted, it is equally ridiculous to say Karen White is a rapist therefore trans women cannot be trusted. Antoniazzi would stir up fear against us.

“We must respect the privacy of transgender people,” she says, but would make an exception when we are arrested.

Then she cites an increase of 84% in reported child sex abuse by female perpetrators between 2015 and 2019. It could mean 2015 had particularly low figures and 2019 particularly high. We can’t establish a trend without more years. We don’t know if this is because of increased reporting, and one expert the BBC quoted thought that explained the whole increase. But the MP called recording trans women as women “data corruption”, and suggested the increase was due to “those identifying as women”. In 2019 there were 1048 more offences reported than in 2015, and to suggest that a significant proportion of those were by trans women is monstrous as well as ridiculous. It is clear hatred.

Antoniazzi then refers to Lauren Jeska. Her attempt to murder was a monstrous crime, but to use it to argue that the justice system must count trans women offenders as men is also monstrous. The number of convictions of women for attempted murder is so small- six in 2017, from Antoniazzi’s figures- that even were it to double it would tell us nothing about female violence. She fulminates that calling Lauren a woman “falsely elevates the number of females convicted”. It does not, because trans women are women.

Antoniazzi has demonstrated a level of prejudice against trans women that should result in withdrawing the whip. Statistical arguments by other transphobes and haters are no more robust than hers. She met with anti-trans hate groups as long ago as 2018, and asked questions about trans women sex offenders in prison in July 2021. It is a good job she left the Women and Equalities Committee in November 2019.

Hate incidents

If someone says, or tweets, something hateful towards trans people, should the police get involved?

In the US, constitutional protection of speech, held to include burning crosses, is fundamental, but in Britain we recognise the concept of hate speech. Hate speech oppresses particular groups, suppressing their speech, so vitiates the main benefit of free speech: hearing different perspectives so as to find the truth. But not everything that is hateful should be criminal. A hate crime involves harassment, intimidation, violence, or property damage motivated by hatred of the victim as a member of a particular group rather than as an individual. Shouting abuse in the street is a crime under the Public Order Act 1986. A hate incident is not criminal but may still offend and distress a member of a minority.

Here are the current Hate Crime Operational Guidelines, last reviewed in 2014, currently subject to a consultation. Dr Nathan Hall’s foreword (p1) makes the case for police involvement even when there is no crime: Regardless of how trivial an incident may appear initially, the actions or inactions of the police in response to that incident can have a significant impact on the way that the organisation is viewed by the community it serves.

Where there is no crime (p60) The police have limited powers in these circumstances, but should recognise that hate incidents can cause extreme distress to victims and communities and can be the precursor to more serious crimes.

Such incidents are discussed at pp60-63. Where another agency is responsible the police might not even formally record a “non-crime hate incident”- for example transphobic shouting in a school. Where no other agency is responsible, the police should record the incident. Any risks to the victim should be identified. Police forces should keep local statistics. The public may object, calling the police the “thought police” (a term from 1984), so the police should not overreact or breach the hater’s human rights.

Hate Crime on the Internet: see pp115-122. Making threats is a crime, and if the anonymous individual is in England, threatening someone in England, and can be identified then English courts have jurisdiction even if the servers are elsewhere.

There is a site, True Vision, on which to report hate crime including on the internet. Personal threats should be investigated.

Not all hate is criminal. On line, haters radicalise each other, and their hatred may spill over into real world harassment and intimidation, but criminalising the hatred is politically impossible. And while I would like the self-righteous hatred exhibited by such as WPUK rebuked, I find others called “extremists”, such as Extinction Rebellion, admirable, so don’t want criminal law to encroach too far. Yet I read that the vile Harry Miller tweeted personal abuse as well as the inanities quoted by the judge, so possibly he got away with his court action because of the evidence rather than the facts.

Sympathy for Brock Turner

I have almost no sympathy for Brock Turner, a rapist and former student at Stanford. His victim’s letter to the court is beautiful and enraging, for its courage, clear-sightedness, and the account of how damaged she has been by his crime. Let us work against rape culture. His father’s letter has garnered widespread derision and anger, for its reference to “twenty minutes of action”. But reading the whole letter, I had a different impression, at just one moment:

He was struggling to fit in socially… Brock was nearly distraught knowing that he had to return early from Christmas break for swimming training camp. We even questioned whether it was the right move to send him back to Stanford for the winter quarter. In hindsight, it’s clear that Brock was desperately trying to fit in at Stanford and fell into the culture of alcohol consumption and partying.

Brock Turner committed rape because he wanted to fit in.

Can you believe that? Well…

He is a mid-west boy, extremely bright to get into Stanford, but his family barely able to afford it, even with a 60% swimming scholarship. He has no experience like this: not of the parties or the other students, not of being average rather than exceptional, or a thousand miles from home. His father is angry, with “alcohol consumption and sexual promiscuity”. No, rape is not sexual promiscuity; but Brock was shamed because he was not having sex as much as he thought other undergraduates were.

The relatively low status male- highly intelligent, athletic, and hard-working, but with much less money and social confidence than those surrounding him- commits a terrible act of violence on an unconscious woman. He has to have sex, with anyone, under any circumstances, because of the pressure of those male peers, so he rapes an unconscious woman.

Rape culture is men feeling entitled to women’s bodies, and rape culture is shaming. Brock Turner is the boy his father knew, who could behave as sweetly as his father saw, and at the same time he is the violent man who committed a violent assault, who treated a woman as less than a person, who tore off her underwear and left dirt and abrasions in her vagina, because he thought that act would let him look his peers in the eye, and because his milieu was one that glorified violence. He was broken, chewed up and spat out by a system which continues to break men like him, and where higher-status men use and abuse women without any consequence, for them.

When I read that letter more sympathetically, I see that Dan Turner is not blaming the victim, but the culture of Stanford which made a weak boy commit a vile act: because the men who shamed Brock Turner really can do anything they like.

Added: after further thought and reading, No. No sympathy. That someone so gifted might be made to feel inadequate is shocking; but his failure to take responsibility is repellant. He did feel entitled. Probably he still does. Commission of an offence while under the influence of alcohol or drugs is an aggravating factor in England and Wales. Somehow, he and his supporters have to be made to realise the seriousness of his crime.

Justine McNally

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.

A pacifist view of criminal justice

The only justification for any use of force is as a last resort to avert an imminent threat. The force must be minimal: it cannot be minimal in a situation of war, so war is never justified.

All responses to crime after that immediate threat should either be for the good of the offender, or to prevent the offender from profiting from their crime. Crime dislocates relationships within society, so the purpose of the response should be to restore those relationships. Rehabilitation is the only justification for punishment. Deterrence, using the offender to deter others, makes the offender a means to an end, and a human being should not be used as a means to an end. Retribution, fitting punishment to offence, is not possible; apples are not oranges.

Offenders are often victims. Where people do not feel they have a stake in society, they should be helped to feel that, for Every [one] is a piece of the continent, a part of the main. If a clod be washed away by the sea, Europe is the less. We should take care of victims. I remember a man whose sentences only extended to community service and fines resenting that someone who had been imprisoned got a Community Care Grant on release; so this means noticing victims who have not committed crime. We need to bind society more closely together.

It is right to prevent people from harming themselves. Self harm is a sign of mental illness. If assisted dying is permitted, it should be clear that the person dying themself benefits, by alleviation of suffering. Self-harming activity, such as drug use, should be treated as a health and social care issue, not by criminal law. Criminal activity to get money for drugs should be treated by drug rehabilitation where possible.

Mental health problems of offenders should be properly treated. No-one should be left behind. I heard at the weekend of Glebe House, a Quaker initiative to work with juvenile sex offenders with particular mental health problems and disturbed backgrounds. It was found that none of a group studied by researchers was in denial about their own previous sexually harmful behaviour, after completing treatment there. Surely it is worth this work, to avoid the suffering and waste of life of re-offending.

Restorative justice, repairing relationships and damage, should be the purpose of criminal justice.

Here I wonder, about building the potential offender’s empathy with victims, and improving impulse control and appreciation of consequences. This post is not a system of justice, for much of the work to learn how offending might be reduced has not been done. However re-offending rates show the current system is not working. I have seen men whose spirit has been broken by prison: the waste and cruelty sickens me.

The Criminal Courts Charge

How the appearance of rationality can be completely divorced from the real world.

Since April, when a person is convicted in the Magistrates Court for a summary offence (minor offence, no jury, limited penalties on conviction) they have to pay a £520 “Criminal Courts Charge”. There is no provision for remitting this charge, even where no penalty is imposed, or the accused has no money. If the plea is Guilty, the charge is £150. The charges in the Crown Court, with a jury, are £900 for a guilty plea and £1200 on conviction.

As one defendant was led away, the judge asked the courtroom, “He cannot afford to feed himself, so what are the prospects of him paying £900?” Judges have to be tough, but also fair. It is wrong to embitter someone in this way. When creating cruel policies, have a care for those who must enforce them. Fines are charged according to the accused’s income, but courts are not allowed to take the Charge into account when setting the fine.

The Howard League for Penal Reform, now campaigning for a review of the charge, has a number of sad stories: A 41-year-old man who stole two tubs of ice cream worth £9.58 from a shop in Coventry, West Midlands, was given a six-month conditional discharge and ordered to pay a £150 criminal courts charge, £85 costs and a £15 victim surcharge. Worse, they show that someone not guilty of the offence charged may consider pleading guilty, or accepting a caution from a police officer, to avoid the higher charge.

The government does not recognise any of this. Here is a pdf “fact sheet” from the Ministry of Justice about the charge, written before the Bill was enacted. How they will recover costs from homeless people is not addressed. Reading it, one would almost think this a liberal measure: This Bill makes provision to enable fines officers to agree new payment terms with an offender post-default, giving offenders further opportunity to take responsibility for their debts and reducing the administrative burden of enforcement activity. Irrecoverable charges may be remitted, if the offender “has taken all reasonable steps to pay”.

Offenders may be imprisoned for failure to pay- my phrasing is more direct than the MoJ’s: If default in paying the Criminal Courts Charge by an offender is due to their wilful refusal or culpable neglect and all other enforcement steps have been exhausted, then the ultimate sanction of ordering them to serve a term of imprisonment can be used as a last resort. I searched the legislation but could not find the relevant provision- perhaps Parliament had this vestige of common sense- but the Howard League says it is still in place.

I read here that one policy objective is to “avoid causing hardship” (p1) and that the Government would be happy to spend £20m a year on attempts to collect the charge, plus £5m a year on imprisoning those who could not pay (p2). Words mean nothing here, including “Ministry of Justice“.

Aside from the practicalities, a person should not be punished disproportionately to the crime. Fairly detecting and prosecuting acts against the community benefits all, and should be paid for by the community. How can they not see this? How?

Homophobic violence

All this stuff about Arizona. Blogger wrote that comparing gay rights to civil rights was like comparing the Holocaust to a stubbed toe, and one of his commenters compared a gay commenter to Satan. Well- slavery then segregation were appalling, but so were legal persecution and homophobic violence. Quickly Googling, I found this Guardian article and commented with a link. One responded that the deaths are suicides, so “that doesn’t quite equate to the Holocaust”, and another that gangs are known for random acts of violence so the attack might have been for any reason.

Is it good news that people don’t often get murdered for being gay? In London, there has not been a homophobic murder since 2009/10. I read the words “transphobic murder” (one investigated in London in 2009/10) and feel a multitude of feelings, and I do not like it being compared to a stubbed toe. There are not many of us: fewer than three thousand gender recognition certificates have been issued, so one of us murdered gives a murder rate thirty times that of straights. I know it is too small a sample for accurate comparison- so?

Lower down the scale, in 2012/13 in London there were fifty transphobic and 1008 homophobic hate crimes reported. I think back to experiences: no, I did not report when that man tried to push me in front of a car. There was a scuffle on a pavement, with me and him as witnesses, and he did not succeed. My word is not proof beyond reasonable doubt, so such a case would get nowhere, not as far as the CPS, even if I could identify him; and I wanted to go home and calm down, not get something done about it. In surveys as opposed to crime reports, a trans woman might experience what is a crime once a week. My friend, knowing the streets better than I, insisted on ferrying me by car rather than let me use buses alone at night.

The British Crime Survey asks people their experience of crime, their confidence in the police and their sexuality. 0.7% in London say we are gay. That low percentage is because this is a doorstep survey and people do not wish to reveal their sexuality: the Government uses the figure 5-7% of the population. The BCS says that 57% of hate crimes go unreported, and one in fourteen LGB people experience violence each year, compared to one in 33 of the general population.

This is not like Russia with organised groups seeking out gay people to humiliate. It is a Civil Rights issue. It is not as bad as what black people suffered in parts of the US until the sixties; and that is no excuse for it. Seeking to diminish the violence against us is seeking to excuse it.

7:52

I committed a crime on Sunday- in Scotland it would be called “Falsehood, fraud and vitious [sic] intromission”. But first I want to tell you about the comic torture scene.

It occurs in 7:52, the nineteenth episode of season 2 of “Scandal”, first broadcast in April in the US, and on 7 November (last night) in the UK. How on Earth do you make a torture scene funny? Well, first you establish strong sympathy for the torturer, which I retain, still, at the end of the episode (or, perhaps, not). He is what we English would call upper working class, a soldier coming home to his teacher girlfriend, and there are sweet scenes of the two together. He is intelligent and observant, and the Federal Assassination Bureau notices him and offers him a choice: a large salary in Washington, with her, for undisclosed duties or going back immediately to Kosovo even though his tour has just ended. It is not actually called FAB. Then, you intercut scenes of him with her, and of him at work, over It’s a bright, bright sunshiny day.

In the comic scene, he is fiddling with a drill, hands shaking, then drilling saying “The sooner you tell me the names, the sooner I can stop this”. In that scene we see very little of his victim, hardly identifiable even in the context, and his hands shaking is funny, though not as I have described it here, and even though immediately after laughing I felt sick.

I don’t know if the US government uses assassins against US citizens- it murders without due process foreign citizens with drones- but if so it might be better to use psychopaths. Peter Quinn in Homeland is also not a psychopath, and his qualms provide part of the drama. These are not thrillers like a James Bond film, in which the events are the main entertainment, but use empathy with stressed, decent-enough people who happen to commit murder- or at any rate their feelings are part of the story, even if the storyteller creates enough distance to make me observe rather than identifying with them.

Why do we tell each other these stories?

My crime was to travel back from London on an old train ticket, which had not been visibly marked as used, so that I have an unused return ticket for Sunday. I have gained about £30 by this, if I do something inconvenient tomorrow (9th). I did it in the hope of getting rid of a talisman, which does me no good. I want to see myself as a good person, and that gets in my way.

Huck and Quinn do what I would like to be unimaginable things, even though they stress about them. I want to do acceptable things, retaining a kind of integrity, to escape my living room. To live. That talisman, “I am a Good person”- I fit the rules, I do the altruistic thing- which has helped me tolerate myself has too high a price. I am good enough, a decent human being in difficult circumstances, and must tolerate myself in the world without-

“perfection”- I am groping here-

I fear the inhibitions I have against particular action.