Following the conviction of Gayle Newland for tricking a female friend into having sex by pretending to be a man, Alex Sharpe looks at why such prosecutions are wrong.
The recent conviction of Gayle Newland at Manchester Crown Court for sexual offences on the basis of gender identity fraud is something that should concern us all. It is the latest episode in a recent spate of prosecutions of this kind brought against young LGBTQ people in the UK. Prior to 2012, there is only one recorded prosecution of this type. See note at end for case references.
Since 2012 however, and in the post-Savile environment in which the CPS now operate, six successful prosecutions have been brought against defendants aged 17-25 (at the time of charge). All of the complainants have been young cisgender women, while the defendants, though all designated female at birth, identify variously as trans men, lesbians and/or genderqueer. Most of the defendants have been sent to prison, in the case of Gayle Newland for eight years at the time of the first trial, and all have been placed on sex offenders registers.
There are many reasons why we should be concerned about these prosecutions. While the following list is not exhaustive, let us consider eight specific reasons why prosecution should be opposed:
- Criminal law overreach: criminal prosecution is, in the context of desire-led intimacy, a step too far, a draconian measure in a liberal society. While lying and or non-disclosure of information might be viewed as unethical (we should not consider it always necessarily to be so, as we should not expect superogatory ethical performances), it should not be the business of the criminal law to police sexual activity that is non-coercive and desire-led.
- Labelling theory: if criminalisation is appropriate, then sexual offences law is an inappropriate way, and fails, to communicate the nature of the ‘wrong’ involved because the sexual encounters are desire-led. We should remember that norm-communication is an important feature of the purposes of criminal law. While I do not advocate this, such an argument might lead to the creation of a new non-sexual fraud offence.
- Legal consistency: an important feature of liberal law is that laws are certain and are applied consistently, that is, that like cases ought to be treated alike. However, in the area of sexual fraud, non-consent requires a legal determination that facts, in relation to which a deception is said to have occurred, are ‘material.’ Thus the courts have made clear that deceptions as to wealth and social status are not material as a matter of law (R v McNally recently affirmed this approach). Moreover, nobody in the UK has been successfully prosecuted for sexual offences on the basis that they lied about their religious faith, bisexual history, criminal convictions, drug use, ethnicity and so forth, nor is it likely that they would be prosecuted. Imagine if a female complainant claimed to have been raped on the basis that a mixed race sexual partner, who appeared white, had failed to disclose, or had lied about, his ethnic background. Do you think the police and/or CPS would prosecute such a case? Exactly.
Of course, readers might think that gender identity is of a different order to some/all of these other examples. The difficulty here is twofold: (a) many people might consider one or more of the above examples to be deal-breakers and there be some normative support for their views, and (b) we should recognise that insistence on the ‘materiality’ of gender history amounts to, and is motivated by, a denial of trans men’s gender identities, or at least sets up a hierarchy of men, in which trans men are positioned at its base.
- Discrimination: linked to (3) above is the problem that it is gender that is singled out for special legal attention, as distinct from other aspects of identity, such as sexuality, race, disability etc. Moreover, it is only the gender identities/histories of LGBTQ people with which law appears to be concerned. We should remember that we all have gender histories, and we perhaps do not always disclose information bearing a relationship to those histories (for example, an experience of child abuse or the termination of a pregnancy). Of course, we would not expect a person to disclose information of these kinds, nor should we. We might however, reflect as to why we so more readily expect trans people to disclose information that is so personal and private.
- Privacy: the right to privacy is well-recognised in human rights jurisprudence. Moreover, privacy should not be viewed only as a right to separateness. Rather, it is essential to the formation of relationships, including those of love and friendship, for relationships between self and others are based on an individual’s ability to share and control personal information. As philosopher Thomas Nagel insists, ‘the boundary between what we reveal and what we do not, and some control over the boundary, are among the most important attributes of our humanity’ (‘Concealment and Exposure’ (1998) 27(1) Philosophy and Public Affairs 3-30). Of course, it might be said that the right not to associate (have sex) trumps the right to do so, and here privacy meets its limit. In relation to coercion, this is undoubtedly correct, in relation to desire-led intimacy it is less so.
- Harm: while proof of harm is not essential to prosecution in sexual offences cases, it is generally accepted that criminalisation of behaviour should not occur in the absence of actual/potential harm associated with behaviour. This liberal approach can be traced to John Stuart Mill. In the context of gender identity fraud prosecutions, we might ask: is there harm sufficient to meet a criminalisation threshold? And, if so, in what does it consist? Thus complainants tend to report distress, disgust and/or revulsion, emotional states they link to an‘inadvertent’ encounter with ‘homosexuality’ (lesbianism in the cases to date).
The problem is especially acute when the defendant is a trans man (as was so clearly the case in Wilson and Kryan Lee (Mason)). For here, a claim of harm rests upon and perpetuates a prior violence – the denial of the self-determination of gender identity. Moreover, the harm claim neglects harms associated with disclosing gender history. For disclosure is not an act undertaken without risk, as high rates of violence and discrimination against trans people attest (Stephen Whittle, et al, The Equalities Review: Engendered Penalties: Transgender and Transsexual People’s Experiences of Inequality & Discrimination (London: Press for Change, 2007). These are matters that ought to be considered in any discussion around the minimisation, and balancing of, harms.
- Deception: a claim of deception, especially in relation to trans defendants, should concern us. After all, if we accept that a trans man is a man then how can we entertain a deception claim. Understood in this way, ‘deception’ is possible only because law allows a complainant’s interpretation of a trans man’s gender identity to trump his own. Moreover, we should not assume ‘deception’ to be the purpose of non-disclosure of gender history. It may be motivated by a concern for privacy and/or self-preservation.
This leads on to the other mens rea requirement in sexual fraud cases, namely the need to demonstrate a lack of reasonable belief in consent. The main difficulty here is that there is a cultural tendency, indeed conceit, to think that no cisgender person would knowingly become intimate with a transgender person. This view, which is both empirically false and offensive, produces a situation where the only ‘credible’ trans defendant emerges as a self-loathing individual, incapable of imagining himself as the legitmate object of cisgender desire.
- Public policy: finally, we ought not to support a prosecutorial approach that is antithetical to the amelioration of transphobia in our society. Ultimately, prosecution of trans people serves to entrench the culturally embedded notion that trans people are synonymous with deception, artifice and/or dissimulation. It is precisely this view, and its perpetuation, that lies at the heart of many, if not all, of the problems trans people face in our society today. It is what renders trans lives ‘unliveable.’
Note: Other cases: R v Gemma Barker  Guildford Crown Court, unrep; R v Chris Wilson  Edinburgh High Court, unrep; R v Justine McNally  EWCA Crim 1051; R v Gayle Newland  Chester Crown Court, unrep; R v Kyran Lee (Mason)  Lincoln Crown Court, unrep; R v Jason Staines  Bristol Crown Court, unrep. In 1991, Jennifer/Jimmy Saunders was convicted of indecent assault and sentenced to six years in prison (R v Jennifer Saunders  Doncaster Crown Court, unrep)