The Justine McNally case – a miscarriage of justice?

Scales_Of_Justice.svg

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.

 

Questions

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?

Theories

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” http://upload.wikimedia.org/wikipedia/en/thumb/c/c7/Scales_Of_Justice.svg/2000px-Scales_Of_Justice.svg.png [Last accessed 1 April 2013] and is licensed under the creative commons Attribution-ShareALike 3.0 Licence http://creativecommons.org/licenses/by-sa/3.0/ [Last accessed 1 April 2013].

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3 responses to “The Justine McNally case – a miscarriage of justice?

  1. Rachel,

    Pleased that you are writing on this…and hope we can share our different expertises to take matters forward.

    I first started to take an interest in these cases about two years back (with the Gemma Barker case).

    What strikes me about all three that have now hit the headlines is:

    – the individuals involved have been young, cut off from the trans community
    – they have been identified in court as women/lesbians: therefore this is supposedly a case of a deceiving woman, rather than a trans man
    – they have all plead, rather than gone to trial

    Like you, i am cautious about jumping to conclusions. However, what is notable about these cases is how the solicitors have been unwilling to speak about the cases (I have tried to contact both representatives for Gemma and Chris, and both have drawn down the shutters). And while some solicitors do, some don’t speak to press, i have reported on the law for a long time and have always been able to have a civilised discussion ABOUT the law in a case without breaching confidentiality, etc.

    That does raise, in my mind, the spectre of solicitors not really getting what they were dealing with.

    In Chris’ case, the Procurator Fiscal made clear to me that he was charged “as Christine” and accepted papers in that name (and gender). Huh? Apart from the ridiculousness of a court charging someone indicted as male with pretending to be male, that seems to me the point at which the case SHOULD have been fought.

    The Procurator Fiscal also claimed that Chris was not trans at the time of the offences nor in any way seeking treatment or seeking to. Ergo, not trans?

    Er, no. According to the STA, Chris had identified as male since 7. But living in remote Scotland didn’t know what trans was. Chris was male. Always had been, in his mind. So why would he identify as trans or seek help?

    That aspect of the case really needs further exploration. But if true, it suggests that the Scottish legal system either doesn’t understand or doesn’t care – and therefore rode roughshod over this young man.

    The other place i would take some issue with you – though you may be right in law and the CPS wrong – is this claim that there is no offence here.

    Broadly speaking, the Scottish case was brought as fraud…and the nature of the fraud was sexual. While the English cases were about sexual assault, occasioned because the consent element of the case was supposedly invalidated by fraud.

    That’s a subtle difference, but maybe one that you lawyers can make something of.

    Again, speaking to the PF’s office, they said they were quite incapable of providing comparative figures on other sexual intimacies obtained by fraud, because “fraud” is just a ginormous category, covering all manner of wrong-doing, from financial to – appparently – the sexual.

    In respect of England, i spent a long time discussing this with the CPS, and they were adamant that the law DOES invalidate consent when obtained by fraud and therefore Gemma was done “bang to rights” (mr phrase – sorry).

    Now. they may be wrong – and i am trying to open doors there for a trans delegation to go talk later this month (and you’d be very, very welcome to join that!), but they stated this as fact, no matter how often i challenged them on it. The rsult of that discussion is available in Meta – the Sex issue – which i seem to remember is either issue 3 or 4. Go read if you want an update on where this got to.

    Otherwise, thanks a lot for a very thorough analysis. But i fear we have an uphill struggle to come on this.

    Janexx

  2. David Tallman

    The basis of your whole arguments are wrong in any case – as the victim was 12 years old – which means that legally – she couldn’t consent to any sexual activity at all – therefore any sexual acts committed upon her by any male or female = sexual assault and/or Assault by Penetration – just as if this girl – ‘had’ have had gender re-asignment and had a surgical penis – she would be guilty of raping this victim irrespective of whether the victim was a willing participant or not – in law a 12 year old cannot consent – and where both parties are 12 – it is the dominant party who is charged and the passive party (i.e. the receiver or the one coerced into sexual activity) that is treated in law as the ‘victim’ – I hope this helps!

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