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.