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.

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Chuka Umunna: Why tolerance is not enough

Against the Trumpification of politics.

It’s still spring, yet 2016 already stands out as one of the ugliest years in modern British political history. It was fantastic to see Londoners choosing hope over fear in May, electing Sadiq Khan as our first Muslim mayor. But David Cameron, having shamelessly endorsed Zac Goldsmith’s dog-whistle campaign tactics, owes those young Muslims who have been put off politics by the slurs hurled at Khan an explanation. How does racial profiling and sectarian scaremongering fit into his One Nation vision for Britain?

Meanwhile, Boris Johnson, one of the best bets to succeed Cameron as our next prime minister, embarrassed Britain on the world stage with a racially charged allusion to Barack Obama’s Kenyan heritage. And my own party has been grappling with a swath of deeply disturbing revelations regarding the attitudes held by some on the left towards Israel and Jewish people. Sowing discord by stigmatising or scapegoating a single faith group or community is profoundly at odds with the British tradition of “tolerance”, but we can’t ignore that this year’s events are part of a rising trend of friction and factionalism.

Last year’s general election should have been a wake-up call. The political and cultural divides between people living in the north and south and urban and rural areas – as well as between working-class and metropolitan sensibilities – appear starker than ever. In May’s devolved elections, Scottish, Welsh and Northern Irish politics became yet more distinct – giving the impression of a kingdom coming apart at the seams. All the while, more and more voices in our national politics seek to pin the blame for the challenges facing our country on a single section of society, whether immigrants, Muslims or another group.

This trend stretches beyond our borders. From Ukip, the French Front National and Austria’s Freedom Party to Podemos in Spain and Italy’s Five Star Movement, new populist parties of the right and left are on the rise across Europe. In the United States, Bernie Sanders is tapping into the energy of Occupy Wall Street, while Donald Trump has emerged as the heir to the Tea Party: a poster boy for division and recrimination.

Trump’s rise should be a warning for us Brits. The New York Times commentator David Brooks has described his success as less indicative of the emergence of a new school of thought, or movement, and more of dissatisfaction with the status quo. Trump’s campaign has tapped into a complex cocktail of grievances, from the loss of manufacturing jobs in a globalised economy to rising inequality and raw anger felt by many white working-class Americans at demographic and cultural changes.

In the run-up to last year’s general election, as I travelled around the country, I was confronted time and time again with the reality that in the UK – just like in the US – people are afraid and angry because the world is changing in ways they fear are beyond their control. Where once they had believed that, if they worked hard, they would get ahead, too many Britons now feel that the system is rigged in favour of those born into opportunity and that those in power have abandoned them to a broken future. What it means to be British seems to have shifted around them, triggering a crisis of solidarity.

We are at a crossroads and may face nothing less than the Trumpification of British politics. In an uncertain and changing world, it is all too easy to imagine that our problems are caused by those who are different from us.

If we wish to follow the fine example set by Londoners on 5 May and choose unity and empathy over division and blame, we must accept that simply “tolerating” one another will no longer do. There is an accusation built into the very word: what you are doing is “other” or “wrong”. As Britain has become more diverse, we have come to know each other less. This makes it harder to understand how people from different walks of life feel about the big issues.

I am a Labour member because I believe, as it says on our membership cards, that, by the strength of our common endeavour, we achieve more together than we do alone. In order to develop the bonds of trust required for this to become a reality, and for our communities to flourish and our democracy to deliver for everyone, we must build a society in which people from all backgrounds actually get to know one another and lead interconnected lives. In this sense, “One Nation” – the land over which all parties seek purchase – should become more than a platitude. It should become a way of life.

Chuka Umunna is Labour MP for Streatham.

This article first appeared in the 26 May 2016 issue of the New Statesman, The Brexit odd squad