The thrilling crime series Broadchurch has presented two views of under-age sex in the last two episodes. Last week we were presented with a convicted sex offender who had sex with his later wife 4 weeks before her 16th birthday, with whom the writers want us to sympathise. Then this week we were presented with a mother being distressed that her husband has kept from her that their 15 year old daughter has a 17 year old boyfriend (and she is not told by her husband that the relationship is sexual).
Those two sides of a difficult issue was brought home to me by reading an article by someone I have a great deal of respect for: Stephen Whittle, founder of Press for Change, the campaigning organisation largely responsible for the trans community’s role in drafting what would become the Gender Recognition Act (2004). In Chris Wilson: Convicted Because of His Clothes, Stephen, now an Equalities Professor of Law at Manchester Metropolitan University, writes of a couple of recent court cases where defendants were found guilty of crimes for having mislaid young girlfriends about their gender. The stories are reminiscent of the Oscar winning depiction of murdered 21 year old Brandon Teena in Boys Don’t Cry. Those resonances are particularly strong because just as with the real-life story of Brandon Teena / Teena Brandon, it is unclear if all the cases that Stephen cites actually involve trans men. If you search on Google for the Scottish Transgender Alliance’s change.org petition linked to Chris, you are given the following summary:
“We consider it essential that trans people’s right to privacy about their gender history ….This case, and the cases of Gemma Barker and Justine/Scott McNally in …”
Yet if you click on the link the petition now has been edited to remove mention of those two English cases, possibly because the petition is aimed at Scotland’s legal authorities, but more likely because it is unclear either of them identified as men. Certainly, there is dispute whether the claim of Justine to want gender reassignment was true or a ruse to avoid the discovery that she was not Scott McNally.
Stephen assumes that Scott is a trans man, but there is doubt as to whether Justine wants to be co-opted into the trans community. The rest of Stephen’s article is a good legally referenced article to the whole issue of the general lack of a legal requirement for at trans man to reveal his birth gender. Apart from assuming too much about Justine / Scott, I have one major concern about his article, and that brings me back to Broadchurch.
The concern over Chris’s conviction for obtaining sexual intimacy by fraud is complicated by the fact that of the two relationships involved, the one that involved sexual penetration was with a 15 year old. Chris claimed at the time to be 17, but was actually 21. At the age he claimed to be, that mother in Broadchurch is appalled, and maybe that, not homophobia as Stephen claims, lies behind parental pressure to pursue a criminal charge. At 21 we are talking about a young adult and (in the eyes of the law) a child. I am concerned that Stephen wants to brush aside that aspect of the case as unimportant to society unless there was an abuse of power or a great difference in age. Anyway, when you are 15, 21 is a great difference in age – 6 years is more than a third of the victim’s life, and she made her decision on the basis of thinking that her boyfriend was just 2 years older than her. Admittedly, this is nowhere near as bad as the Broadchurch character was had a sexual relationship with a 15 year old in his forties. We are supposed to be sympathetic to him, but I find that age gap deeply creepy. The 15 year old victim of sexual assault would probably have found the revelation of losing her virginity to a 21 year old deeply creepy, as age differences are viewed very differently at that young age.
[The rest of this article was re-written on 11th April in the light of the judge’s comments at the 10th April sentencing hearing]
It is completely wrong for Stephen to assert that the case against was only brought to court because Chris was born female bodied. The age of consent is there for a reason and while the aims of the Scottish Transgender Alliance’s petition are laudable in hoping to prevent a dangerous legal precedent, Chris is not the sort of person to be basing a campaign around. First and foremost, this is a case about the sexual assault of a minor and since this article was first published we know that Chris has been given a lenient sentence of three years probation, three years on the Sex Offenders Register, and 240 hours of community service. The Edinburgh High Court has not published the judgement in this case, although it would appear to meet their criteria for publication of a “significant point of law or a particular public interest.” That is frustrating as the judge, Lord Bannatyne, made a comment that Chris genuinely feeling male lessened his culpability. What I would like to know is if the fraud for which Chris was sentenced is about his gender claim or his age claim. Stephen is certain that it is the former, but for me the latter is the real issue and that is why Chris should not be held up as a martyr for the transsexual community. He was guilty of fraud in presenting himself as a boy, when in fact he was a man six years older than his victim.
© Mercia McMahon 2013