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?