The Justine McNally Court of Appeal judgment is now available on BAILII here (hat tip to Zoe for being the first to blog about it).The day after the US Supreme court sensationally struck down DOMA, thus allowing federal recognition of state equal marriage legislation, gay rights in the UK have been dragged backwards by the Court of Appeal.
Appeal against conviction – the elements of the offence were not made out
Justine McNally pleaded guilty to six counts of Sexual Assault by Penetration. It is my view that deception as to gender does not vitiate consent and therefore Justine had pleaded guilty to a non-existent offence. I therefore urged her to appeal her conviction. Her lawyers took a similar view and she brought an appeal against conviction on a number of grounds including the fact that she had pleaded guilty to a non-existent offence (“the elements of the offence were not made out”).
LJ Leveson first turned to s.76 Sexual Offences Act 2003 (‘SOA 2003’). This states that if there is deception as to the “nature or purpose of the act” then it is conclusively proven that the victim did not consent to the relevant act. This clause catches cases where a woman consents to sexual intercourse because the defendant has told her this would open an air passage to improve her singing voice or where a fake doctor examines women’s breasts. The crown did not allege that deception as to gender fell within s.76 so this was not considered by the judges.
LJ Leveson then turned to the heart of the case – does deception as to gender affect the victims freedom and capacity to consent (s. 74 SOA 2003). If he determined that deception as to gender does not affect freedom or capacity to consent then Justine’s conviction would be quashed on the basis that she had plead guilty to a non-existent offence. Further, if there were future cases the judge would direct the jury to acquit. However, if he determined in some circumstances deception as to gender can affect the victim’s freedom and capacity to consent then Justine’s conviction would be upheld on the basis that she had pleaded guilty to a criminal offence. In future cases the judge would advise the jury regarding ss. 2(1)(c), 2(1)(d), 2(2) and 74 SOA 2003 and then leave the jury to decide the issue of consent.
LJ Leveson accurately set out the legal precedents including the case of EB ( EWCA Crim 29451). In this case it was held that the defendant’s failure to disclose being HIV positive prior to unprotected sexual intercourse did not vitiate consent. Therefore, although the defendant had removed the victim’s freedom to consent to a substantial risk of HIV infection this was not rape. The impact of the victim in this case would have been substantial. At a minimum she would have suffered an acute period of anxiety before receiving the all clear; at the worst she would have contracted HIV. As a side note, if she did contract HIV then law would treat this as GBH (R v Dica  2 Cr App R 28, 467).
LJ Leveson then uses a legal technicality to distinguish the case of EB. He points out that EB only concerned passive deception and left the issue of active deception of HIV status open. Given the harm to the victim is identical it is hard to believe that a court would conclude that deliberately failing to disclose HIV status knowing the risk of harm to the victim is not rape, but if the defendant states he is HIV negative it is rape.
Then astoundingly LJ Leveson makes the following statement:
“Thus while, in a physical sense, the acts of assault by penetration of the vagina are the same whether perpetrated by a male or a female, the sexual nature of the acts is, on any common sense view, different where the complainant is deliberately deceived by a defendant into believing that the latter is a male.”
The only justification for this statement is homophobia. If I am attracted by people who appear to be male, have sexual intimacy with someone who appears to be male, but I learn the person is female, then in no way has it changed the sexual nature of the act. Unless of course I think that in some way sexual intimacy between two women is less valid or less real than sexual intimacy between a man and a woman. However, this view is pure homophobia.
[Try this one for size. I am racist who will not sleep with Indian men. I meet a cute Indian guy who convinces me that he is not Indian, but just has a suntan. I sleep with him and then later I find out that he is Indian. At this point I cry rape. Ridiculous?]
We now come to the ratio of the case
“… we conclude that, depending on the circumstances, deception as to gender can vitiate consent“
This is all that is required to demonstrate that Justine pleaded guilty to an actual offence and therefore the appeal against conviction on this point of law was rejected.
Impact on LBGT people
This decision has already caused a great deal of concern in the LBGT community who feel that all sexual activity is criminalised unless they have written proof that their partner knew of their prior gender.
However, it is important to note there are a number of defences that can be argued:
- There was no deliberate deception as to gender – the defendant presented in a manner in which they felt comfortable and the victim made a unilateral mistake. This approach may be particularly applicable for butch lesbians who do not see themselves as or identify as men or male cross-dressers who do not see themselves as women.
- There was no active deception. The defendant could claim that she deliberately presented as a man, but at no point did she explicitly state to the victim that she was a man. To distinguish EB, LJ Leveson has had to limit the ratio to active deception.
- There is no deception as the defendant’s legal gender is male (following acquisition of a gender recognition certificate (‘GRC’) which changes legal gender) or the defendant’s biological gender is male (following medical gender reassignment treatment) or the defendant’s psychological gender is male (as they identify, live and present as male). A GRC should be conclusive as s.9(1) Gender Recognition Act 2004 (‘GRA’) states “Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender“. However, given that the basis of the decision is homophobia not legal or medical, nothing is certain. A future judge could state “… the victim chose to have sexual encounters with men who were born male and her freedom to choose was removed by the defendants deception over his possession of a GRC“.
- The defendant’s circumstances mean deception as to gender has not vitiated consent. The arguments would probably be similar to those in point 3.
- The fact that the defendant was female at birth would be so prejudicial that is should be withheld from the jury under s.78(1) Police and Criminal Evidence Act 1984. Authority for this proposition comes from the case of EB were it was held that the jury should not be told the defendant’s HIV status.
- It is is contrary to public policy as transgender people should be free to live their normal lives without having to disclose their previous gender. For example s.22 (1) GRA makes it a criminal offence to disclose the previous gender of people with GRC in some circumstances.
- It is contrary to articles 8 and 14 of the European Convention of Human Rights. A requirement to disclose medical history (i.e. previous gender) could breach Article 8 – the right to privacy. Treating women differently from men or LBGT people differently from straight people could also engage Article 14.
As well as defences there is the burden of proof. The defendant does not have to prove the victim knew he was born a woman; the state has to prove that the victim was deceived.
I have three main difficulties with this judgment:
1) In order to bend the current law to make Justine’s alleged behaviour criminal, LJ Leveson has resorted to the well established legal principle of homophobia (see for instance the language in Brown)
2) This decision has created a great deal of uncertainty and fear for the transgendered and LBG community
3) Mens rea. If Justine knew Mandy(1) was straight so posed as a man to trick Mandy into sex then Justine would clearly have a mens rea for the act whether or not it is an offence. However, Justine posed as a boy called Scott as it made her feel comfortable. Justine’s relationship with Mandy sprung from Justine living on-line as Scott. Sexual intimacy arose naturally out of Mandy and Justine’s relationship. However, the law in this area does not require the defendant to intend something, merely to have been negligent. This is essential to avoid Morgan type defences, but at what cost?
However, this judgment is not as bad for the LBGT community as some commentators are stating. Nonetheless it is sad to see homophobia clearly present in the English legal system in 2013. I remain convinced that this is an area in which parliament needs to act to remove the uncertainty and hence to allow LBGT people to lead their normal lives without fear of arbitrary arrest or imprisonment.
(1) Mandy is not the victim’s real name. I can’t use her real name for legal reasons, but I have given her a name to make her more human.