Posts Tagged Sex By Deception
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.
(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.
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.
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.
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.
For those not familiar with the story, a woman was being prosecuted for “deceiving” other women into having sex by pretending to be a man, something that could have quite worrying consequences for any Trans folk in Scotland who are not out. (And being out to just your partner might not be enough, if you were not out generally and they later claimed otherwise) It’s not been reported why the charges have been dropped, but I would hope it is down to a point of law, as in “You can’t prosecute someone for this” rather than insufficient evidence.
Unfortunately, Brooks did have to spend some time on remand in Cornton Vale Prison prior to the charges being dropped.
There’s little new information on the sex-by-deception case I’ve been following, although it was in court again yesterday. Brooks has asked for more time according to various news sources (Daily Record) and the next hearing will be on the 8th March when a date for trial should be set. The print edition of the Metro suggests a plea of Not Guilty was also entered, but the story does not appear to be online.
Some reports (STV) indicate that the reason for the request for more time is for DNA/handwriting reports and an identity parade. (How a parade will work when Brooks’s photo is all over the press I don’t know) This is worrying because it would perhaps suggest that the lawyers believe that the whole “deception” over gender thing is really an issue and they’re fighting this on the grounds of mistaken identity.
There’s also an interesting comment thread on my previous post from someone who knows about Scottish Law who suggests that although the law is vague, not telling someone that might affect their consent would be illegal.
Brooks is still “remanded in custody”, i.e. in prison, so even if not found guilty has already suffered because of this. It’s starting to feel more and more like if you’re stealth and Trans, you’d better not be having sex in Scotland.
The Scottish “Obtaining sex by deception” case with Samantha Brooks that I reported on last year is back in the news again, as the defendant was in court on Friday. Although it’s been reported in the usual gay press, their reports are third-hand with the primary sources appearing to be The Daily Record and The Scotsman as their stories were published first and give more detail not mentioned by other outlets.
To summarise, there is no mention of any transgender angle to the case in the reporting and I’m sure given there appear to be at least two independent sources, one of them would have mentioned it had there been. That does not mean however it could not have worrying implications for trans people should Brooks be found guilty. The charge is still unclear, with mentions in articles of “obtaining sexual contact by fraud” but as before, a search of relevant case law and legislation turned up nothing.
There was discussion in 2006 about updating Scottish law to include a better definition of consent, which would have included an identity-related offence that would have excluded this sort of thing but this did not go through. If “consent” really is undefined in Scotland, it appears case law may be about to create something very unfortunate for many Trans people.
Friday’s hearing was just to ender a plea and there is another hearing on the 9th February, but it is not clear what that hearing is in relation to. I believe it may be possible to obtain a copy of publicly available court papers in such cases and time permitting I shall attempt this.
With obvious parallels to the case in the Middle East just a few weeks ago, a rather worrying news story has appeared on BBC News. The headline, “Woman faces sex by fraud charges“, doesn’t sound too bad but the first paragraph is somewhat more chilling for anyone Trans…
A 25-year-old woman has appeared in court accused of tricking two women into sexual contact – by pretending to be a man.
Firstly, the obvious: a “woman pretending to be a man” could well be a transman but however they identify, it’s likely they’re on the Trans spectrum somewhere.
Secondly, even after an hour of searching through statute and case law, I can’t figure out what the person accused of this offence is actually guilty of. The case is in Scotland which has different laws from England and Wales and there is a history of “Rape by Deception” in case law, but nothing I can find written down. (If it was England or Wales, it would probably be Section 36 if the other party had mental health troubles) The article says the other people involved “cannot be named for legal reasons”, which would suggest something unusual.
It may be that it’s been misreported by the BBC and the “deception” isn’t relevant to the actual offence but whatever the specifics, this is quite worrying.