In my previous article, Justine Judgement, I wrote a hasty response to Zoe O’Connell’s erroneous assertion that the Court of Appeal had ruled that stealth trans people had been criminalised. On subsequent reflection I would change nothing in that hasty response, as it is quite clear what the judgement says, and in particular clear that it does not say what Zoe claims it does. Unfortunately, Zoe’s view is the one that has become dominant among the trans blogosphere and with the blurred lines nowadays between bloggers and journalists, it is also appearing in online journals. In the New Statesman, Jane Fae engages in the same misinterpretation as Zoe that the judgement means that gender deception is fraudulent, while hiding that you are HIV positive is not. More disturbing from Justine’s perspective is Paris Lees’ article for Vice, in which she references Zoe’s article and changes Justine’s name to Scott McNally and misgenders her as a he. In other words, she is putting into the media (and a US publication so sending this misinformation international) the trope among trans activists that Justine is a trans man, when she is (last we know of), a woman in a long-term lesbian relationship. Even Zoe backtracked from her criticism of the judgement getting Justine’s gender wrong and acknowledges at Comment #49 in her article that her view of her gender is unclear. Actually, it is very clear indeed, Justine pleaded guilty to deceiving her victim into having sex with a girl, and the appeal did not argue against that gender identification.
As his relates to a legal case it is best to set out the facts. Justine pleaded guilty to six counts of sexual assault, based on deceiving her girlfriend into consenting to sex. In the pre-sentencing report, she was reported to have had gender identity issues which were resolving themselves, and the report recommended her for a non-custodial sentence. The judge sentenced her to a relatively harsh three year sentence and so she appealed the conviction and the sentence, but the appeal was not on grounds of being trans. The Court of Appeal refused to rule that gender deception can never vitiate (or invalidate) consent to sexual intercourse, but left it to be settled on the merits of the individual case. As an aside they rejected Justine’s legal team’s claim that HIV deception could never vitiate consent, as that is not what case law says (despite what Jane and Zoe are propagating). The Court of Appeal also ruled that she was not poorly advised in submitting her guilty plea and that as the guilty plea was unequivocal, the conviction had to stand. The point on which Justine was successful was that the Court of Appeal ruled that a private individual could not be guilty of an abuse of trust (which is an offence committed by a professional with a duty of care) and so her sentence was reduced and she was released with a suspended sentence and probation order.
I consider that the Court of Appeal came to the correct decision, as they have to weigh all possible interpretations of a ruling that gender deception never vitiates consent. This does create difficulties for trans people, including those who are not in stealth and normally tell a prospective intimate partner about their trans status, but forget in the heat of the passionate moment. Nevertheless, it would be dangerous to establish case law that gender deception never vitiated consent. Take, for example, a lesbian who has never wanted to have deep vaginal sex and consented to intercourse with someone that she thought was a woman, but was actually a man who targeted such women due to a hatred of lesbians. If gender deception never vitiated consent then she could have been entered deep before having a chance to withdraw consent.
It was never likely that the Court of Appeal would respond to Justine’s case with a specific ruling about those with gender identity issues, as Justine’s appeal was not made on that basis. Dan Bunting, a lawyer, wrote on the UK Criminal Law Blog that he would opt for ruling that gender can never vitiate consent, and complains that this judgement gives no guidance at all, but that is precisely why I think it is so good. The Court of Appeal rejected making dangerous case law and instead focused on the individual factors of the case. As a consequence, they had no option but to uphold Justine’s conviction, because she had made an unequivocal guilty plea.
Agreeing with that Court of Appeal upholding of the original conviction does not mean that I agree that Justine is guilty of obtaining sex by deception. I am in agreement with some of what Rachel Bowyer has written in Justine McNally Judgement -Homophobic Not Transphobic. Given her article’s title, I should begin by pointing out that I do not think that the Court of Appeal was homophobic by virtue of saying that a girl who wanted to restrict sexual consent to male partners should not be deceived into having sex with a female. Nor was the judgement ever likely to be transphobic, as Justine has not appealed on gender identity grounds, nor has she self-identified in this legal process as a trans boy or man. Where I agree with Rachel is in the brief paragraph about Justine, rather than implications for trans people. This is because in that paragraph she is focusing on the fact that the relationship developed online when they were (in the eyes of the law) children. Before going on to that point, I should stress that Rachel opens her article by supporting the notion that gender deception should never vitiate consent and goes on to claim that Justine was accused of a non-existent offence. Rachel, however, has ignored paragraph 20 of the Court of Appeal judgement, which refers to the failure of the Sexual Offences Act to limit the forms of deception that could be covered. Therefore the offence does exist and Justine’s guilty plea meant that there was limited room for her conviction to be quashed.
Taking the case back to what was originally a cyber relationship between children focuses the matter back onto gender identity issues that might have provided a better avenue for Justine’s appeal, or for a future appeal to quash her conviction. Justine told the police that she used the name Scott as that made her more comfortable. That could mean that she was more comfortable thinking of herself as male or that she was a female-identified lesbian who wanted to create a romantic attachment to a girl without needing to out herself as gay online, or, indeed, a bit of both as she was still working out who she was at 13. This cyber relationship came to a temporary halt after Christmas 2009, which Justine originally claimed was because her true identity was discovered on Facebook. She changed this story before the original trial and admitted that she had never told the victim that she was a girl, she told a pre-sentencing expert that she was afraid that her gender would be apparent to the victim, and under cross-examination in the appeal hearing admitted that she did not tell her for fear that the relationship would come to an end.
I know from friends involved in online relationships that they can lead to a romantic bonding as strong as anything offline. It would appear that Justine was wanting to take the relationship into the real world, but being careful not to reveal her gender. She did, however, have gender identity issues, which the pre-sentencing report noted were resolving. An important point to note is that at the time of the trial, Justine had been in a lesbian relationship for six months, which would mean that it was beginning around about the time that Justine first noted that she wanted to plead to guilty. This could indicate that Justine’s resolving of her gender identity issues were because she had gone though her gender identity issues and decided that she was more comfortable being lesbian than trans. This would have been something in the foreground around the time of the trial and may still have been a relevant factor at the time of the recent appeal. So there might be grounds for a further appeal on the basis that she was exploring her gender more at the time of the offence, and indeed she broke off a lesbian relationship as the cyber relationship became stronger. She could argue that her approach to the trial and appeal was driven by a desire to distance herself from previously stronger feelings of gender dysphoria. Of course, this may not be the case, or she may continue to be reluctant to be cleared on the basis of being trans, when that does not appear to be how she has defined herself in the last year.
If she did make a further appeal, then that judgement might impact on trans people who have not disclosed their status prior to sexual intercourse. The good news for them is that the current judgement does not directly impact on them, as Justine chose not to appeal on gender identity grounds. Whether there is to be any further good news for Justine will be at her choosing.
© Mercia McMahon 2013