Originally two separate articles entitled Justine Judgement and Justine Justice
The Court of Appeal on 27 June 2013 issued the written judgement on why it reduced the sentence on Justine McNally, but did not doubt the soundness of the original conviction. Already there are social media murmurings of this meaning that trans people who are not open about their status cannot have sex without breaking the law. This is because McNally's conviction was for obtaining consent to sex by deception about her true gender. Not only is this a misrepresentation of what the judgement says, but it is a dangerous misrepresentation, causing needless concern to trans people. Yet an early response to the judgement that is doing the social media rounds paints an alarming picture with the headline "Court of Appeal Confirms: Stealth Trans People Having Sex Are Criminals." Fortunately for trans people living in stealth (i.e., not wanting to tell intimate partners about their biological history), the judgement said nothing that could justify Zoe O'Connell using such a title for her hasty response. In my equally hasty response to her response, the numbers in square brackets refer to the numbered paragraphs of the Court of Appeal's written judgement. When this case was first making waves at the time of McNally's conviction (21 March 2013), there was little information about the case to go on, but a widespread assumption that it concerned a trans man called Scott Hill. We now have much more detail about the case, thanks to this judgement being made public. Two matters need to be highlighted to show that there is no need for panic among sexually active trans people. Firstly, even if McNally identified as a trans man at the time of the offence, she did not do so at the time of the trial, as her witness statement admitted to deceiving the victim into thinking that she was consenting to sex with a boy called Scott Hill . She had some on-going but diminishing gender identity issues, as noted by a pre-sentencing report . Secondly, the appeal was not made on the grounds that Justine was trans, but that deceiving her victim about her gender did not invalidate the consensual nature of the sexual intercourse . Those two factors should throw an immediate fire blanket over the claims in social media that the judgement criminalises sexually active trans people who are in stealth. Unfortunately, O'Connell had already fanned the flames before someone thought to fetch the blanket, by reading what was not there into the judgement. O'Connell asserts that the judgement denies that hiding HIV infection is deceit, but asserts that hiding your gender is deceitful. In fact, the judgement states that in certain circumstances hiding your HIV status is sufficiently deceitful to vitiate consent , and that, again only in certain cases, hiding your gender can also vitiate consent . In other words, the justices determined that there was an equivalency in consent law between HIV and gender, but only in the sense that each must be judged on the merits of the individual case. So there are no grounds to the fear that O'Connell voiced in her opening paragraph, namely that the Court of Appeal was establishing (trans specific) case law. In order for case law to be created, the justices would have to establish a point of law, and that is precisely what they refused to do in relation to gender deception. Their judgement was based on the matter of the case at hand because they rejected the arguments of McNally's legal team that there were any points of law that would invalidate her guilty plea . They also rejected the claim that she was poorly advised in making that plea , although, of course, that it is not a point of law. The only point of law to come out of the judgement concerns the sentence. The justices determined that the crime of a breach of trust can only refer to someone in a professional place of trust (teacher, doctor, etc.), and therefore reduced McNally's sentence as it was based on the wrong sentencing guidelines. That, however, is not a trans specific issue, but one that would relate to anyone accused under the Sexual Offences Act 2003. So there is nothing in this written judgement that would impact negatively on the legal right of trans people to keep their biological history secret from sexual partners.
In my previous article, 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 O'Connell claims it does. Unfortunately, O'Connell'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 O'Connell 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 O'Connell's article and changes Justine's name to Scott McNally andmisgenders 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 O'Connell 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 this 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 McNally's legal team's claim that HIV deception could never vitiate consent, as that is not what case law says (despite what Fae and O'Connell 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 McNally'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 McNally 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 Bowyeris in the brief paragraph about McNally, 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 McNally's appeal, or for a future appeal to quash her conviction. McNally 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 McNally 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, McNally had been in a lesbian relationship for six months, which would mean that it was beginning around about the time that McNally first noted that she wanted to plead to guilty. This could indicate that McNally'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 McNally 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. All rights reserved