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.