The Justine McNally judgment – homophobic not transphobic

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 ([2006] 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 [2004] 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:

    1. 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.
    2. 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.
    3. 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“.
    4. The defendant’s circumstances mean deception as to gender has not vitiated consent. The arguments would probably be similar to those in point 3.
    5. 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.
    6. 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.
    7. 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.


Justine McNally walks free

Lord Justice Leveson (AP)

Today Justine McNally walked free after the Court of Appeal (Criminal Division) overturned her sentence!

Justine McNally had been granted leave to appeal by the Court of Appeal against both her conviction and her sentence. Her appeal against her sentence focused on whether she had understood the offences with which she had been charged. I feel that there is still a question mark in this area. Nonetheless, the judges upheld Justine’s conviction. However, Justine’s sentence was overturned with Lord Justice Leveson stating that “the sentence was simply far too long”, which is consistent with my views. Lord Justice Leveson is head of the Sentencing Council of England and Wales so should know a thing or two about sentencing :-). Justine was sentenced to nine months imprisonment suspended, a two year supervision order and ten years on the Sex Offenders Registrar.

I personally would like to have seen her conviction quashed and a retrial ordered. This would have addressed the nagging doubt of whether Justine committed any offences at all. However, would this have been in the interests of Justine, her family and friends? They would have had all the inconvenience and stress of a retrial hanging over them. This way the matter is closed and Justine can start to rebuild her life.

Justice has (almost) been done.

[Thanks to Polly Graph for attending the hearing and taking notes.]

Justine McNally to appeal!

Justine McNally has been granted leave to appeal by the High Court. Her appeal starts tomorrow, 11th June 2013, in the Court of Appeal Criminal Division at Court 6, Royal Courts of Justice in front of Lord Justice Leveson and two less well known judges.

Justine McNally – sentencing

If Justine did deceive the victim and the deception lead to a crime being committed, then what sentence should have been imposed? There is no mathematical formula but there are detailed guidelines here, here, and here.

The starting point, assuming only fingers or tongues were involved, is 2 years. Sentence specific aggravating factors and mitigating factors are then considered – there does not appear to be any in this case. Next general aggravating factors and mitigating factors are considered. This would include Justine’s age and up bringing.  Per the CPS “the youth and immaturity of the offender must also be taken into account”. Finally, a deduction is made for a guilty plea. If Justine pleaded guilty at the first opportunity, then she is entitled to a deduction of one third. Therefore, Justine should have been looking at a sentence of around 16 months.

Why then was Justine sentenced to 36 months? Was it the deception. Again per CPS

Where a factor is an ingredient of an offence or is used to identify a starting point, it cannot also be an aggravating factor and care will be necessary to avoid double counting. Since sexual offences often involve some form of violence as an essential element of the offence, this is included in the starting points.

Therefore, a sentence of 16 months already includes some form of violence. In Justine’s case there was no violence but deception so this would already be included in the 16 months. As deception was an essential ingredient in her offence it cannot also be an aggravating factor.

I am at a loss to explain the 20 month discrepancy between my analysis and the court’s sentence.









The Justine McNally case – a miscarriage of justice?


On Thursday 21 March 2013, at Wood Green Crown Court, in the constituency of Lynne Featherstone, ex Parliamentary Under-secretary for Women and Equalities, Justine McNally pleaded guilty to the crime of having consensual sexual activity with another woman and was sentenced to three years in jail. Further she was placed on the Sex Offenders’ Register for life. The prosecution case was that consent to sexual intimacy was obtained by fraud and hence a crime was committed.

Justine who was then 13 met her victim who was then 12 through an on-line video game, with Justine posing as a boy called Scott. Later on in their relationship, when Justine was 17 and her victim 16, they met on three occasions and sexual intimacy occurred with her victim apparently unaware that Scott was really a woman. Even after one of Justine’s ex-girlfriends called the victim, the victim did not accept that Scott was a woman. Finally, a friend of the victim’s parents discovered a bra and a strap-on in Justine’s bag which eventually led to the police being called. The CPS charged Justine with six counts of Assault by Penetration, an offence under S.2 Sexual Offences Act 2003, which carries a maximum penalty of life imprisonment.

There are though a number of troubling features of this case.



Why did Justine plead guilty?

This is perhaps the most critical unanswered question. The normal reason for a defendant to plead guilty is on advice of his or her lawyers; however, on the facts as reported and the current state of law (1) there is a high probability that an unbiased jury would have acquitted Justine. Therefore I cannot see why Justine would have been advised to plead guilty.

Did Justine plead guilty to a crime that she did not commit?

Unfortunately this happens for a number of reasons. If the defendant’s lawyer is aware that this is happening, he or she must not collude in the deception. The practical effect is that the lawyer is unable to make mitigation arguments related to the offence itself and has to concentrate on the character of the defendant. With the exception of a general point related to deception, all the reported mitigation points are based on Justine’s character.

What was the actus reus (guilty act)?

Surprisingly this is never mentioned in the reports. Justine apparently had three encounters with the victim, yet was charged with six counts of Assault by Penetration.

Why did Justine have a bra in her bag?

This is the last item that a woman who was posing as man would have in her bag. As well the difficulties if it were discovered, bras can be seen under clothing and mark the skin for hours – as plenty of cross-dressing men have found out to their cost. If Justine were trying to deceive it is more likely she would have worn a man’s vest or even a chest binder.

Why was her victim still deceived after being told that Justine was a woman?

According to the reports, an ex-girlfriend of Justine’s told the victim that Justine was really a woman. However, apparently Justine was still able to convince her victim that she was a man.

Why did the victim only go to the police after her parents found out that Justine was a woman?

We don’t know.

Would the victim’s statement have stood up to cross-examination in court?

We don’t know. Justine pleaded guilty so the victim would not have been cross-examined.

Did Justine’s lawyers try to reduce the charges in exchange for pleading guilty?

She pleaded guilty to six offences, each of which had a maximum sentence of life imprisonment.

Did the police obtain any internet logs of conversations between Justine and her victim?

This would show if Justine deceived her victim rather than her victim’s parents. None of the news accounts mention internet logs.

Was medical evidence produced to demonstrate the impact on the victim?

Justine’s harsh sentence was apparently due to the impact that her behaviour had on the victim. Was any medical evidence produce to the judge that the impact Justine’s crime had on the victim had produced a recognised psychiatric illness?


Justine is a transman

It has been suggested that Justine is a transman. The reports state that Justine has had difficulties with her gender identity, but her presentation at the Court hearings was unremarkably female; she was wearing leggings and has shoulder length hair.

Justine deceived the victim’s parents but not the victim

User “iloveyouJustine” posted the following theory on the Pink News website.

Screen Shot 2013-04-01 at 12.02.19 copy

Although anonymous posting on the internet have to be treated with caution, this post and theory provides an explanation for many of the open questions. Fingers or tongues are all that are needed for the offence of Assault by Penetration. Only someone close to the case, a lawyer or journalist would know this, and a lawyer or journalist would not use this style. If the victim’s parents were very homophobic, then maybe Justine pleaded guilty out of love to protect the victim.

Next steps

Justine’s case

Justine was sentenced to three years, yet the only evidence against her was a witness statement. However, the witness was never cross-examined and the witness’ probity was never weighed by a jury.

Justine was sentenced to three years, yet the Court of Appeal is still struggling to define the boundaries of the offence. However, no legal arguments were made, even to a Crown Court judge.

I am not convinced that the victim was deceived and I am not convinced that even if the victim was deceived as to gender that this a crime.

I would urge Justine to appeal both her conviction and the severity of her sentence. There are plenty of people or organisations who would be willing to help, for example Galop.

Sex by deception in trans cases

Although my belief is that the law as it currently stands does not consider deception as to gender will invalidate consent, it would require a Supreme Court case on this specific point to fully clarify the law. It is not right to subject trans people to this level of uncertainty regarding such an important part of their lives so I believe the government should act to introduce a statutory exception in the case of deception as to gender.

(1) The relevant statutes are Sections 2, 74, 76 Sexual Offences Act 2003. Key cases are Jheeta [2007] EWCA Crim 1699, Devonauld[2008] EWCA Crim 527, Assange v Sweden [2011] EWHA 2849 (Admin).

The picture at the top is “Scales of Justice” by “Althepal” [Last accessed 1 April 2013] and is licensed under the creative commons Attribution-ShareALike 3.0 Licence [Last accessed 1 April 2013].

BitVector Genealogy



The BitVectors are an ancient and immortal race of 10,000, each with a 10,000 bit genome. The race evolved from a single individual by the following process: 9,999 times a BitVector chosen at random from amongst the population was cloned using an error-prone process that considers each bit independently, and flips it with 20% probability.

Write a program to guess the reproductive history of BitVectors from their genetic material. …. Balance performance against probability of mistakes as you see fit[2]

This is my take on ITA’s BitVector Genealogy puzzle. I split the puzzle into two parts: calculating the clone relationships between BitVectors and then deducing which BitVector was most likely to be the progenitor. To calculate the clone relationships I calculated the Hamming distance pairwise. I then compared it to a threshold that I had pre-computed using Bayes theorem to determine if the BitVectors were 1st generation clones. To find the progenitor, I chose the BitVector that gave the most compact tree. To determine how compact the tree was I summed the distance between each node and the root, where distance was defined to be the number of edges betweeen the node and the root. Full details here.
Accuracy in deducing clone relationships is 100.0%. Accuracy in finding the progenitor is 30.9%, which is I believe is the maximum accuracy obtainable. Run time is approximately 30 seconds on my computer.
Source code and binary available here.

[1]The picture is “DNA and twisty green things” by Ethan Hein and is licensed under the creative commons Attribution-NonCommercial-ShareAlike 2.0 Generic licence

[2] See