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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The toxic new right-wing media will outlast Trump even if he’s impeached

Fox News and a network of smaller outlets have created an alternative version of reality. That ecosystem might prove more durable than the US president. 

An early end to Donald Trump’s presidency looks more feasible than at any time in the 117 days since his inauguration.

The New York Times revealed on Tuesday that FBI director James Comey – who was fired by Trump a week ago – wrote a memo recording the President’s request he “let go” an investigation into links between Michael Flynn, Trump’s pick for national security advisor, and Russia.

Already there is talk of impeachment, not least because the crime Trump is accused of - obstructing justice - is the same one that ended Richard Nixon's presidency.

But with a Republican-controlled Congress the impeachment process would be long and fraught, and is only likely to succeed if public opinion, and particularly the opinion of the Republican voters, swings decisively against Trump.

In another era, the rolling coverage of the president's chaotic, incompetent and potentially corrupt administration might have pushed the needle far enough. But many of those Republican voters will make their decision about whether or not to stick with Trump based not on investigative reporting in the NYT or Washington Post, but based on reading a right-wing media ecosystem filled with distortions, distractions and fabrications.

That ecosystem – which spans new and (relatively) old media - will be going into overdrive to protect a president it helped elect, and who in turn has nourished it with praise and access.

On Monday, BuzzFeed’s Charlie Warzel took a forensic look at how a new breed of hyper-partisan right wing sites – what he calls the "Upside Down media" – tried to undermine and discredit claims that Trump disclosed sensitive security information to Russian officials.

The same tactics can already be seen just 24 hours later. Notorious conspiracist site Infowars talks of “saboteurs” and “turncoats” undermining the administration with leaks, mirroring an email from Trump’s campaign team sent late on Tuesday. Newsmax, another right-leaning sight with links to Trump, attacks the source of the story, asking in its web splash “Why did Comey wait so long?”. GatewayPundit, which published several false stories about Hillary Clinton during the election campaign, appears to have ignored the story altogether. 

As Warzel points out, these new sites work in concert with older media, in particular Rupert Murdoch’s ratings-topping cable news channel Fox News.

Fox initially underplayed the Comey memo’s significance, switching later to projecting the story as a media-led attack on Trump. At the time of publication, the Fox homepage led with a splash headlined: “THE SHOW MUST GO ON Lawmakers vow to focus on Trump agenda despite WH controversies.”

Fox acts as a source of validation for the newly established right-wing sites. Once Fox has covered a story, smaller sites can push further and faster, knowing that they aren't going too far from at least one outlet considered respectable and mainstream. If anything should make the UK value the impartiality rules, however imperfect, which govern its broadcast news, it’s Fox’s central role in enabling this toxic mix of misinformation.

These new media sites have another weapon, however. They understand and exploit the way internet platforms - in particular Facebook - are designed to maximise attention. They have found that playing on very human desires for stories that confirm our biases and trigger emotional responses is the best way to build audiences and win fans, and they have little compulsion abusing that knowledge.

This isn’t just a Trump or Fox-related phenomenon. It’s not even just a right-wing one. In both the US and the UK left-wing hyper-partisan sites with a tenuous relationship with the truth have sprung up. They have followed the same playbook, and in most cases the same advertising-based funding model, which has worked so well for the right. Emotive headlines, spun stories, outright fabrications and an insistence that “the corrupt mainstream media won’t report this” work just as well in generating clicks and shares for both ends of the political spectrum.

The main difference between the two political poles is that the right has benefited from an ideologically and temperamentally suited president, and a facilitator in Fox News. 

Of course the combined efforts of this new media and the Fox-led old may still fail. Trump’s recent transgressions appear so severe that they could break through to even his diehard supporters.

But if Trump does fall, the new right wing media ecosystem is unlikely to fall with him. 

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