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.
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.
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  EWCA Crim 1699, Devonauld EWCA Crim 527, Assange v Sweden  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].