Trans or otherwise, it's time to overhaul the law on "rape by deception"

Take your bed-partners as you find them and if they turn you on, what’s past history got to do with it?

The law is an ass.  Or rather, since that view is already axiomatic in some quarters: the law in relation to intimate consent is an ass – an unholy heteronormative, patriarchally-inspired man-protecting mess.  So asinine, in fact, that the time may finally have arrived to tear up what we have already and start again. Bizarrely, it has taken the implausible coincidence of quite separate cases involving transgender individuals and undercover police to edge this debate into the open.

Let’s start with the trans side – though don’t, for a moment, imagine this is just about “teh tranz”.  An Appeal Court ruling has this week been published in respect of Justine McNally, sentenced  to three years in prison in December 2012 for the crime of deceiving their girlfriend as to their gender. Justine, who was 17 at the time the alleged offences took place, entered into the relationship as a boy, called Scott: their partner agreed to sexual intimacy but later told police that consent was based on a deception.

Whether Scott/Justine explicitly misled his partner remains unclear. Equally unclear is whether Justine/Scott is trans or, as newspapers and, at times, the judges have positioned her, some sort of “evil lesbian deceiver”.  But then, the judges appear not to understand the distinction between gender identity and sexuality, either.

What the appeal judgment makes clear, is this: deceiving an individual as to age, marital status, wealth or even HIV status doesn’t invalidate consent. One could add – though the judges probably didn’t because it would make very poor PR - that deception in respect of past criminal history, including rape, violence and child abuse don’t necessarily invalidate consent. Nope. 

The only thing that really seems to vex this bunch of middle-aged blokes is being misled over gender, which must raise questions as to why such fears.  Is this, as they remark, merely “ a broad commonsense way" to deal with "evidence relating to 'choice' and the 'freedom' to make any particular choice”.  Or is it delicately muffled – and bewigged – homophobia?

Meanwhile, inquiries into the activities of undercover police – and their propensity to have sex with activists as a “necessary” part of maintaining their cover, rumble on. One might inquire, wearily, in what universe “having sex” is required as a means to keep up the appearance of being an ordinary everyday chap.  But this is police culture, so perhaps the question is redundant. Or, as Chief Constable Mick Creedon, currently leading an inquiry into these matters puts it, lying about your sexual status is par for the course:  "There are many people who say they're not married when they are married. It happens."

So far, so predictable.  I have been asking questions of the Crown Prosecution Service and the police ever since the first milestone case – that of Gemma Barker in 2011. I may not be the world’s trendiest woman: but I am good at scenting the first faint whiff of an issue about to trend!

The CPS, to their credit, are meeting and talking to myself and members of the trans community this week. As for the Met: it is not just their response, but the way they deliver a response that speaks volumes. Why did the police investigate Justine McNally? A spokesman explains: “a complaint was made to the police”.

Short. Sharp. Sweet.  (If only the police were so decisive in all cases of alleged rape.)

Why didn’t they investigate complaints about undercover police?  Much waffle follows: paragraphs about Operation Herne, which is now investigating the totality of undercover misdemeanours and is headed up by the aforementioned Mick-“it-happens”-Creedon.

No obvious understanding that investigating a rape complaint is not really the same thing as setting up a portmanteau inquiry run by the police themselves.  Nor, over the two years I have been asking about this matter, any sign that they understand parallels between the two cases. No: just sheer incredulity that anyone might compare gender deception with deception as to police status.

Though that may be about to change, as Northumberland Police Commissioner and former Solicitor-General, Vera Baird – who may therefore be assumed to know a thing or two about the law – this week argued that police undercover actions could have amounted to rape.

A debate is long overdue, even if its outcome may not entirely please everyone. Friends with whom I have discussed the matter swing between two extremes. On the one hand, consent should be based on full information, a bit like the insurance industry’s “uberimma fides”.  Anything and everything should be revealed – including birth gender. Against that, the counter-view: take your bed-partners as you find them and if they turn you on, what’s past history got to do with it?

Jane Fae is a feminist writer. She tweets as @JaneFae.

Ellie Foreman-Peck
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Martin Schulz: could this man bring an end to the reign of Angela Merkel?

The German Eurocrat is the biggest threat to the possibility of a fourth term for Merkel. 

At first sight, Martin Schulz looks like an unlikely political saviour. Thin of hair and thick of waist, the 61-year-old was a member of the European Parliament for 23 years and its president for five. In an anti-establishment age, it was predicted that Schulz would struggle when he became the Social Democratic Party’s (SPD) candidate to replace Angela Merkel as the German chancellor in January. Instead, he is spearheading a remarkable revival in his tribe’s fortunes. On 19 February, for the first time in a decade, the SPD polled above Merkel’s Christian Democrats (CDU), attracting 33 per cent to their 32 per cent. The SPD vote share has increased by 12 points in a month. The cause is clear: “Martin mania”.

For months, it was assumed that Merkel would secure a fourth term as chancellor in September’s federal election. The SPD, the grandfather of European social democracy and Germany’s oldest party (it was founded in 1863), had polled as low as 19 per cent. After forming a grand coalition with the CDU in 2013, Schulz’s party was marginalised as Merkel claimed credit for policies such as the country’s first minimum wage. Voters defected to the far-left Die Linke and the far-right Alternative für Deutschland. The SPD’s future looked to be one of managed decline.

Sigmar Gabriel, the party’s leader since 2009, stood little chance of supplanting Merkel as chancellor. As a result, like François Hollande, he reached for the pearl-handled revolver: he announced his intention to step aside on 24 January after internal SPD polling showed that Schulz would perform significantly better against Merkel. “It was not an easy decision but I’m convinced it was the right decision,” Gabriel told reporters. His judgement was vindicated as public polls gave Schulz an 11-point lead over Merkel (49-38).

The German chancellor’s apparent unassailability owed less to her strength than to her opponents’ weakness. Eleven years after she entered office, voters had grown weary of Merkel’s leadership but saw no viable alternative. In Schulz, they have found one. Having been engaged at EU level and held no domestic office since standing down after 11 years as mayor of the north-western market town Würselen in 1998, Schulz has been embraced by voters as a relative outsider.

Unlike his SPD colleagues, Schulz can criticise the CDU’s record without appearing hypocritical or feeble. He has attracted voters with a centre-left emphasis on redistribution and social justice. “When people see that their taxes are used to give their children a future, they buy into it,” Schulz has said in interviews.

The European Parliament has been a useful platform for his pugnacious style. He is best known for being compared to a concentration camp guard by Silvio Berlusconi in 2003 and for his interjection in 2010 after Nigel Farage branded the then EU president, Herman Van Rompuy, a “damp rag”. Schulz retorted: “It’s not right that this man should be able to trample over the dignity of this house!”

Voters have warmed to Schulz’s personal story as well as his political history. He was born on 20 December 1955 in the village of Hehlrath, North-Rhine Westphalia, to a policeman father and a homemaker mother (he is the youngest of five). Rather than going to university, he trained as a bookseller and was a promising footballer. Two severe knee injuries ended his playing career at the age of 18 and he sought refuge in alcohol after falling into depression. Having contemplated suicide, he recovered to open a bookshop in his home town (which he ran until he became an MEP in 1994) and has been teetotal since 1980.

Schulz educated himself by devouring historical fiction (his favourite writers are John Steinbeck and Giuseppe Tomasi di Lampedusa) and retains the restlessness of an autodidact (he often works 18-hour days). His bonhomie and blunt manner appeal to voters who regard Merkel as aloof.

That Schulz has come to the SPD’s rescue is unsurprising. He joined the party at the age of 19 and became the youngest mayor in North-Rhine Westphalia when he was elected in Würselen at 31. After more than two decades serving the EU, the attractions of a return to domestic politics were obvious. “People must look into your eyes and see that you are a bloody streetfighter,” he remarked in 2013, as he presciently dismissed Ed Miliband’s electoral chances.

Schulz has disoriented the Christian Democrats, who failed to anticipate a centre-left renaissance. In a mark of how much he has unsettled them, the German finance minister, Wolfgang Schäuble, has denounced him as a Trump-like populist for his slogan “Make Europe great again”. Were Schulz to replace Merkel and Emmanuel Macron to be elected French president, the pair would unite in seeking to impose punitive Brexit terms on the UK.

For Germany’s Social Democrats, the fear is that Schulz’s surge has come too soon – voters could swing back to Merkel and the CDU before polling day. But after years as an emblem of centre-left malaise, the SPD has momentum. Schulz is determined to prove that there are second acts in political lives. 

George Eaton is political editor of the New Statesman.

This article first appeared in the 24 February 2017 issue of the New Statesman, The world after Brexit