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The latest news on sex-by-deception cases yesterdays sentencing of Newland to eight years on three counts of sexual assault. There are a few points worth addressing, which I’ll go through one by one:

  • Firstly, while the case might persuade future judges it does not set much of a precedent. There are caveats and it does depend who you ask, but in general any case initially heard by the Crown Court is not considered binding in future court cases. This means that yesterday’s judgement is relevant only as far as it relates to thought processes that the judge will go through when sentencing.
  • The extent to which trans issues are directly involved is limited. The courts tend to play this down as not relevant even when there is strong evidence to the contrary, although the judge does state “the close link with your troubling issues of sexuality…and blurred gender lines is important“. There is perhaps more here to concern gender-queer and non-binary folk who may be “mistaken” (Or correctly read!) as the “wrong” binary gender rather than binary-identified fully transitioned trans people.
  • Unlike convictions in earlier cases, this was specifically “Assault by penetration”, which we can be sure of as the judges sentencing remarks have been reported in full – the relevant part being the reference to “section 2“. Previous cases have not involved penetration, so this is slightly different and creates a little confusion. We know the issue of deception was key, as the sentencing statement also go on at length about it and this theme is repeated in the judge’s directions to the jury during the main trial: If you are not sure there was any operating deception at all, then there is no question of a conviction.”. There are two ways deception that was legally relevant can involved:
    • Identity: Someone can lie about who they are, with failing to mention that you are an undercover police officer as the canonical example. Lies about being married, wealthy and so on and not mentioning HIV or some other STD are acceptable, legally. Identity only becomes a legal issue if someone is fooled into having sex with someone they think is spouse/partner or (After the McNally judgement) there is “deception” about gender. The
    • “Nature of the act”: There is also a law about “deceiving…as to the nature or purpose of the act” which could apply here as a dildo was used and not a penis. If the case was based entirely on this, it does not entirely stop it being an issue for trans folk as a question of “what is a penis” arises, particularly when it comes to surgery and prosthetics.
      Update: Since first posting, it’s been pointed out that section 79 of the Sexual Offences Act 2003 deals with surgically constructed anatomy, presumably with the intention of making it clear that rape of trans women is still rape. It’s not clear on first reading how this clause would apply to “conditional” consent, nor am I aware that the courts have ever had to consider it in this context)
  • Finally, was the the eight year sentence justified? Worryingly for any trans folk who do get caught up in this, according to the sentencing guidelines the answer is “yes”. The courts take assault involving penetration as almost as serious as rape and do not distinguish between lack of consent and withdrawn consent after-the-fact when passing sentence. Both psychological damage on the victim and prolonged deception are regarded as aggravating factors leading to an 8-year starting point. We already know from earlier cases that the courts often consider being trans a “deception”, and consider psychological damage on the victim even if it’s similar to a “gay panic” defence.

Stepping back for a moment and considering if someone engaged in a lengthy deception to engage in a relationship should face criminal sanctions – in an ideal world, possibly, but it’s hard to see how any situation in which consent can be withdrawn after-the-fact could not be used to target minority groups including gender identity, race and religion. The current rules are also inconsistently applied, with far worse deceptions being completely ignored by the law.

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Another gender/sex/deception case is back in the news – this time, in Chester. So far, this case is not as directly relevant to trans people as previous cases, so it will likely not be followed as closely as others. However, what follows is a brief summary of what has been reported so far.

The usual approach of finding the first and most comprehensive news sources that have published the case has been used. This typically gives the most complete source and unbiased of information, which in this instance is the Chester Chronicle, who first published the story Monday night with two followup stories on Tuesday (1, 2) and Wednesday. Secondary and often tabloid cases have a habit of sensationalising stories to the point that after a few rounds of stealing borrowing stories from each other, they bear little resemblance to the facts.

As with previous cases, a “woman has posed as a man” to obtain sex, but similarities seem to end there. There is no hint in the reporting that Newland, the defendant, is in any way transgender and there are several key facts differentiating this from the McNally and other cases:

  • There was penetrative sex using a “prosthetic”
  • The alleged victim knew Newland (as a woman) separately from the online relationship
  • There is a claim that the alleged victim knew what was happening all along

The last of these is most interesting, as it mirrors the situation that a trans person might find themselves in having to defend a sexual assault charge under the McNally “you must disclose trans status before sex” rule, or in having to defend against forced marriage annulment. Specifically, how does someone prove that their partner knew the situation and is not just an ex trying to get revenge? Whilst the standard of proof in criminal cases is “proof beyond reasonable doubt”, the courts can not just accept someone’s word that they told their partner some fact or every non-violent rape case would be defended with “they gave consent”. This leaves the prosecution merely having to convince a judge or jury judge that of course they didn’t know someone was trans or they’d never have consented to sex/married them

The tables seem to have been turned in the current case, as the alleged victim has been forced to address the defence accusation that she must have known something was up and she has admitted that she may have been foolish. She had been asked to wear a blindfold during any sexual encounters, having never met her partner outside of meeting for sex – a fact that, according the reporting, the defence is making much of.

The the other two points regarding use of a prosthetic and knowing Newland already are covered by existing laws, specifically deception as to the nature of the act and deception over identity of a real person. Although it is possibly stretching the legal definition, if the jury is not convinced by the “alleged victim knew and went along with it” defence, the resulting verdict will depend heavily on those two points and not just the McNally “deception as to gender vitiates consent” ruling.

The trial continues.

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The Crown Prosecution Service (CPS) has today released a statement explaining that it will not be prosecuting undercover police officers for sexual offences having mislead political activists about their identity. This decision is highly inconsistent, given the CPS have previously successfully prosecuted trans folk for what they call identity “deception” when it comes to sexual relations.

The phrasing of today’s release either admits to transphobic prosecution decisions within the CPS (specifically, believing that trans identities are inauthentic) or admits that they believe Lord Leveson’s Court of Appeal judgement criminalising trans folk for sexual relations is incorrect. In his ruling on the McNally case, which was prosecuted by the CPS, Leveson stated that being trans was enough to invalidate consent to sexual acts, but the CPS now say: (Emphasis added)

In order to prove the offence of rape the prosecution must show that the complainant did not consent to sexual intercourse. In this case the Sexual Offences Act 1956 and the case law interpreting that Act is applicable, the effect of which is that consent can be negated if…there has been deception as to the identity of the suspect. The identity of the suspect is relevant to a very limited extent. Section 1(3) of the Act expressly provides that impersonating a woman’s husband may vitiate (negate) consent. This section was later extended by case law to include the impersonation of a person’s partner. The law does not go further and allow the fact that a person does not reveal their true or full identity to be capable of vitiating consent where it is otherwise freely given.

The CPS are hardly unaware of the McNally judgement, given the same release cites it and specifically refers to trans identities as “deception”:

R – v – McNally, where consent was negated on the basis that the victim believed she was having sex with a male partner, where in fact she was having sex with a female who had deceived her. In this case the Court of Appeal said that “depending on the circumstances, deception as to gender can vitiate consent”… but added: “in reality, some deceptions (such as, for example, in relation to wealth) will obviously not be sufficient to vitiate consent.”

No clarification is given as to why they think this case differs from the case of the undercover police officers, even though the CPS now know that the courts have decided that identity does matter.

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The Crown Prosecution Service for England and Wales has in the last few weeks1 updated it’s published guidance on sex-by-deception and other cases on what it calls “conditional” consent. The new guidance is available on the CPS web site.

There is not much to report in terms of the guidance itself. The first two cases discuss more explicit “conditional consent”, namely Assange (Consent only valid if a condom used) and another case, where consent was given conditional on withdrawal. McNally is highlighted as being different, hinging on implied rather than explicit consent. Whilst I do not like the language used in the guidance, which repeatedly refers to gender as a “deception”, that is unfortunately in line with the wording used by the court itself.

What is more interesting is that any cases depending on conditional consent must be referred to the Principle Legal Adviser (I.e. CPS HQ) before any decision is taken. For better or worse, that should introduce some degree of consistency in terms of prosecutions. It is worth pointing out at this point that even if the CPS decline to prosecute, the police will still retain a whole host of other measures that could be used (or abused) against someone whose gender is seen as deceptive.

Although not proactively published, older guidance from the CPS has been obtained via Freedom of Information2 which indicates the issue of someone’s trans status being directly relevant to the case with them as a defendant have never really been considered before. The currently-in-force guidance that would have applied in the McNally and earlier cases, which the CPS did take pains to point out was “notably out of date”, only considers old-naming of a defendant who has a criminal record prior to transition and the need to carry on with medication. The current draft version of the guidance merely expands on this and corrects some errors.

It can be seen from minutes of the relevant group meetings (20120925, 20121120, 20130121) that the McNally, Wilson etc cases were not discussed. Whilst the group did not exist at the time of the McNally appeal judgement, it was meeting after the initial judgement and after the Barker and Wilson cases so the issue was already on the radar.

It has been stated online that some members of the group met with the CPS after the McNally appeal result, but the content of that meeting and the outcome has not been made public as confidential details of cases were discussed.

1. There is no publication date, but the Wayback Machine shows the previous page not including the new guidance from the 8th September, so it is within the last five weeks.

2. The oldest CPS guidance document came with a note saying that the contacts page had been removed as it contained personal information. Of the others, all have been edited prior to uploading to this blog. The original response from the CPS included names redacted via a black marker, but were still visible on the scanned documents. No content has been edited besides blanking out names fully.

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Below is a roundup of all the coverage of the McNally appeal result that I am aware of. This should be a complete list, so if I have missed any please let me know.

Many of the articles and blog posts contain swearing or homophobic or transphobic language, although usually as part of the comments rather than in the main body of the text.

Other than the first three items which are notable because of where they have been published, entries are listed in date order.

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The Court of Appeal has just published it’s judgement in the latest sex-by-deception case. This is, to the best of my knowledge, the first time a written judgement has been provided in such a case and is binding on the lower courts, i.e. creating case law.

It’s not good news.

As I’m quoting direct from the judgement, the below contains detailed references to sexual acts. This is unavoidable as it is highly relevant. There are no references to underage or non-consensual acts, the case revolves entirely around “deception” as to gender invalidating consent.

I’m going to quote extensively from the judgement as I believe it speaks for itself However, you can skip the quotes and just read my summary and it should make sense. What I will note is the heavy and unnecessary use of quote marks to imply deception earlier on: ‘him’, ‘his’ etc. This is despite the note from the judge towards the end about “confusion with her own sexuality”, specific reference to the person concerned “talking about wanting a sex change” and a pre-setnence report revealing “a history of…confusion surrounding her gender identity”.

The judge’s way of phrasing things could at best be described as insensitive and I suspect they had no training in this area.

6. Arrangements were made for “Scott” to come down to London to see M just after her 16th birthday…

7. …at the time the appellant was aged 17 years…

Summary: There was no issue with age of consent. (Quite the opposite, they waited until they were old enough)

8. … They went to a bedroom where it was dark and the appellant began to rub M’s vagina with her fingers and gave her oral sex. … M offered to give the appellant oral sex but the appellant declined. It was alleged (this being the count that was denied and not pursued) that M was penetrated with the dildo.

9. On the second visit, there were lots of occasions of oral penetration and occasions of digital penetration, always of M. … On the third visit, although there were difficulties in the relationship, they had a party. They still talked about having sex but the appellant was not interested in trying again.

Summary: There was genital contact and penetration with tongue and fingers. There was no penetration with a dildo or any confusion/lack of clarity over what it was penetration was with considered in the case. This is important: There was no “penis-in-vagina” sex involved in the case.

10. However on the fourth and final visit in November 2011, the appellant was confronted by M’s mother about really being a girl. … The appellant kept talking about wanting a sex change and M said the appellant had lied to her for four years and all that time she had been calling her Scott.

47. …The pre-sentence report spoke of a history of self harm and confusion surrounding her gender identity and sexuality, which were resolving….

Summary: There’s clear confusion over gender here. Talking about wanting a sex change is enough to get protection as a trans person under the Equalities Act 2010.

23. The case for the Crown was that M’s consent was obtained by fraudulent deception that the appellant was a male and that had she known the truth, she would not have consented to acts of vaginal penetration. Mr Wainwright argues that deception as to gender cannot vitiate consent; in the same way deception as to age, marital status, wealth or, following EB, HIV status being deceptions as to qualities or attributes cannot vitiate consent.

A little confusing this, but in a nutshell: It has been ruled previously that deception over age, marital status, wealth or HIV status does not matter.

26. Thus 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.

Summary: Gender is somehow special because, presumably, “eww, gay people” and “eww, you turned me gay”. Homophobia as much as transphobia. “Deception” when it relates to gender does matter, even if primary sexual characteristics (Vagina/Penis) are not involved. As far as I’m aware there has never been a case in the UK involving deception as to religion, which would be an interesting comparison as it can involve strong emotions too.

Age, marital status, wealth or HIV status do not matter. Gender does.

11. …On 30 November 2011, M gave a full account to police of these offences. Although one or two answers might be said to be equivocal, she said that she did not know that “Scott” was a girl…

12. The account which the appellant provided to the police in a prepared statement was to the effect that she met M through the internet, pretending to be “Scott” because it made her more comfortable. She suggested that M found out about her real identity as early as December 2009 and they had a big argument. They eventually started speaking again and then met up. She expressed the view that she thought that the complainant knew or suspected that the appellant was a girl. That suspicion would be inconsistent with the suggestion of an argument when M found out; neither would it be consistent with M’s purchase of condoms before the first visit and preparation for it in 2011.

30. The draft witness statement re-iterated that the appellant had lost contact with M around Christmas 2009, noting that it was resumed when M requested pictures via a webcam for which purpose the appellant made herself look like a boy. The statement goes on to say that when the appellant travelled to London, she did not try to disguise herself as a boy and continued with these words:

“12. I presumed M knew that I was a girl and consented to sexual activity which took place although I specifically deny I ever used a dildo on her. I admit I had a dildo which she saw but I did not use it on her.“

Summary: The judgement goes on at length beyond this and is also concerned with the accuracy of legal advice given, but there appears to have been some doubt as to how aware M was about the gender situation. Given they were both teenagers, possibly confused about sexuality and on one side gender, this perhaps isn’t surprising.

Essentially it goes on to say that although the burden of proof is with the prosecution, if you’re trans and out yourself to someone prior to any sort of sexual act – even touching – then it would be best if you can prove it, in case they (or their parents) later try to prosecute. A Gender Recognition Certificate would, I hope, be a defense – but having read the judgement, I’m not certain.

Quite how you prove you told a partner without outing yourself to all and sundry, putting yourself at risk of physical violence, loss of employment, homelessness etc is not addressed in the judgement.

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For those who have followed my previous commentary on such cases, much to do with the latest case will not come as much surprise. What is new is that this one was in England, thus increasing the threat that trans folk south of the border might risk criminalisation for entering into a relationship, as well as existing concerns north of the border.

What is not new is that a guilty plea was entered, so this has (by my understanding) not set case law. As far as I have been able to ascertain, no defended case of “sex by deception” bought against a person with a possible trans element has yet succeeded or even proceeded to trail in the UK.

Usual caveats apply in terms of the reporting. In this case, the only source I can find that has reported directly is the Daily Mail. Other outlets have picked up the story, but the timing and quotes used all indicate they’re regurgitating the Daily Mail story. This makes figuring out what actually happened rather more tricky than usual.

In brief, a couple had been involved in a long online relationship since they were barely teenagers but not met in person. They eventually met when both were over 16 and had sex. As a result of McNally, the defendant, being outed they were arrested and charged with six counts of sexual assault by penetration. (The age gap appears to be around the 12 month mark. The Daily Mail deliberately tries to give the impression it is more by quoting the age of one person at the time of the incident and the age of the offender now. This is a routine trick they use)

The prosecutor specifically stated the victim was “sexually assaulted…by deceiving her into believing that she, the defendant, was a boy” and the judge is quoted as referring to it as a “selfish and callous deception” when sentencing and there is no mention of any factors besides gender in the article. I find it difficult to imagine that someone using, say, a prosthetic penis or hand whilst engaging in any intercourse would end up in court. Rather, this case is more about “gay panic” – straight, cis folk being “tricked” into gay relationships by presumed-fake trans identities.

It is not made entirely clear what trans history McNally has and it is entirely possible they will end up identifying as lesbian. However, the defense does mention confusion over gender issues.

The sentence was for three and a half years plus a lifetime on the sex offenders register – years-long prison sentences are pretty much expected with sexual assault cases, which is how this was tried.

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(Warning: All the news stories linked in here are highly transphobic, with references to acquired genders being a “pretence” or “fake”)

It looks like we have another case of someone trans being prosecuted for “obtaining sex by deception“. I am always wary of mainstream press coverage of cases involving trans people, because the facts can so easily be distorted either through ignorance or, in the case of The Sun’s article on this incident which I’m not going to link to, maliciously.

However, what has been widely reported seems to indicate that in this case, the person being prosecuted was definitely a trans man – they had presented as male for many years, with the STV coverage specifically using the word transsexual and they were already seeing a counsellor. One report also mentions they are on a gender reassignment programme, presumably a reference to a Gender Identity Clinic.

In summary, Wilson plead guilty to two counts of “obtaining sexual intimacy by fraud”. In the first case, this sexual intimacy apparently went no further than kissing and cuddling, with Wilson refusing to engage in anything more.

The second, later case is problematic in that actual intercourse took place and their partner was underage at the time, having mislead Wilson about their age. There was no prosecution for that mentioned however, so it would appear that Wilson’s actions in immediately terminating the relationship and refusing to see her any more when this was revealed were the correct course of action here.

This case makes it clear that the police and courts in Scotland regard failing to disclose trans status prior to kissing/cuddling someone as a criminal offense. Proving you told someone is of course tricky, so unless you’re very “out” there could be trouble ahead.

Featured on Liberal Democrat VoiceWilson has ended up on the sex offender’s register as a result. Full sentencing has not yet taken place.

Edited 1315, 8th March: From the Scottish Transgender Alliance:
“In partnership with Trans Media Watch, we have just received advice to the effect that the charge of sex by fraud in this case does not relate to Wilson presenting as male but instead relates to the use of a substitute object under the pretence that it was a penis and therefore without consent. This means that reporting that states Wilson is in trouble over gender presentation is inaccurate. Please help us to raise awareness of this. We need as many of you as possible to write to the newspapers (and any other media outlets covering this) and explain.“

Edited 1800, 8th March: Initial assurances that the conviction was related to the “use of a substitute object” were incorrect – it has now been confirmed the prosecution was related to identity.

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Barker, who I’ve written about previously, was today given a 30 month sentence for two counts of sexual assault and one of fraud.

After a brief panic that being transgender and not totally out while kissing someone has been made illegal via case law, it seems likely that this case is being misreported. It’s the usual suspects, such as the Daily Mail and the Mirror.

Going back to the original reporting, this Metro story from the original hearing states that Barker was initially arrested for sexual assault before it was realised they were in fact (presumed) female – i.e. the original arrest had nothing to do with any cross-dressing/transgender aspect.

What has not been reported is the nature of the “specimen offenses” of sexual assault that Barker entered a guilty plea to. However, Barker lied and claimed to be 16 when they are 19, which may be relevant. Their other girls involved are reported to all have been 15/16 and the slightly more balanced Press Association report states there was “sexual touching” involved.

It’s also important to note that the guilty plea for fraud is to do with a false claim for compensation after a made-up physical assault.

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The whole sex-by-deception thing is back in the courts, this time with a teenager from England. (Telegraph)

The facts are broadly similar in both cases – a woman1 poses as male and has relationships with other women, but this time she ends up in trouble due to sexual assaults on the women, rather than them simply being unhappy when they find out the full situation as that happened later. From what I can tell, these were all short-lived relationships with girls Barker already knew, and not the longer-term ones we saw in the previous Scottish case. It also sounds more as if Barker is lesbian rather than somewhere on the Transgender spectrum which may have been the case with Brooks.

The main issue appears to be the sexual assaults and Barker has pleaded guilty to those. But what is concerning is the one count of “fraud” mentioned in the Daily Mail that’s also got a guilty plea. The Mail makes this sound as if the fraud charge is related to sexual activity. However, Barker also attempted to get compensation for a made-up assault so this may be straight-forward financial fraud rather than anything else.

Either way, a simple guilty plea does not set case law.

1Or at least someone who has not started medical transition or gone full-time as male.