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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Qatar is determined to stand up to its Gulf neighbours – but at what price?

The tensions date back to the maverick rule of Hamad bin Khalifa al-Thani.

For much of the two decades plus since Hamad bin Khalifa al-Thani deposed his father to become emir of Qatar, the tiny gas-rich emirate’s foreign policy has been built around two guiding principles: differentiating itself from its Gulf neighbours, particularly the regional Arab hegemon Saudi Arabia, and insulating itself from Saudi influence. Over the past two months, Hamad’s strategy has been put to the test. From a Qatari perspective it has paid off. But at what cost?

When Hamad became emir in 1995, he instantly ruffled feathers. He walked out of a meeting of the Gulf Cooperation Council (GCC) because, he believed, Saudi Arabia had jumped the queue to take on the council’s rotating presidency. Hamad also spurned the offer of mediation from the then-President of the United Arab Emirates (UAE) Sheikh Zayed bin Sultan al-Nahyan. This further angered his neighbours, who began making public overtures towards Khalifa, the deposed emir, who was soon in Abu Dhabi and promising a swift return to power in Doha. In 1996, Hamad accused Saudi Arabia, Bahrain and the UAE of sponsoring a coup attempt against Hamad, bringing GCC relations to a then-all-time low.

Read more: How to end the stand off in the Gulf

The spat was ultimately resolved, as were a series of border and territory disputes between Qatar, Bahrain and Saudi Arabia, but mistrust of Hamad - and vice versa - has lingered ever since. As crown prince, Hamad and his key ally Hamad bin Jassim al-Thani had pushed for Qatar to throw off what they saw as the yoke of Saudi dominance in the Gulf, in part by developing the country’s huge gas reserves and exporting liquefied gas on ships, rather than through pipelines that ran through neighbouring states. Doing so freed Qatar from the influence of the Organisation of Petroleum Exporting Countries, the Saudi-dominated oil cartel which sets oil output levels and tries to set oil market prices, but does not have a say on gas production. It also helped the country avoid entering into a mooted GCC-wide gas network that would have seen its neighbours control transport links or dictate the – likely low - price for its main natural resource.

Qatar has since become the richest per-capita country in the world. Hamad invested the windfall in soft power, building the Al Jazeera media network and spending freely in developing and conflict-afflicted countries. By developing its gas resources in joint venture with Western firms including the US’s Exxon Mobil and France’s Total, it has created important relationships with senior officials in those countries. Its decision to house a major US military base – the Al Udeid facility is the largest American base in the Middle East, and is crucial to US military efforts in Iraq, Syria and Afghanistan – Qatar has made itself an important partner to a major Western power. Turkey, a regional ally, has also built a military base in Qatar.

Hamad and Hamad bin Jassem also worked to place themselves as mediators in a range of conflicts in Sudan, Somalia and Yemen and beyond, and as a base for exiled dissidents. They sold Qatar as a promoter of dialogue and tolerance, although there is an open question as to whether this attitude extends to Qatar itself. The country, much like its neighbours, is still an absolute monarchy in which there is little in the way of real free speech or space for dissent. Qatar’s critics, meanwhile, argue that its claims to promote human rights and free speech really boil down to an attempt to empower the Muslim Brotherhood. Doha funded Muslim Brotherhood-linked groups during and after the Arab Spring uprisings of 2011, while Al Jazeera cheerleaded protest movements, much to the chagrin of Qatar's neighbours. They see the group as a powerful threat to their dynastic rule and argue that the Brotherhood is a “gateway drug” to jihadism. In 2013,  after Western allies became concerned that Qatar had inadvertently funded jihadist groups in Libya and Syria, Hamad was forced to step down in favour of his son Tamim. Soon, Tamim came under pressure from Qatar’s neighbours to rein in his father’s maverick policies.

Today, Qatar has a high degree of economic independence from its neighbours and powerful friends abroad. Officials in Doha reckon that this should be enough to stave off the advances of the “Quad” of countries – Bahrain, Egypt, Saudi Arabia and the UAE - that have been trying to isolate the emirate since June. They have been doing this by cutting off diplomatic and trade ties, and labelling Qatar a state sponsor of terror groups. For the Quad, the aim is to end what it sees as Qatar’s disruptive presence in the region. For officials in Doha, it is an attempt to impinge on the country’s sovereignty and turn Qatar into a vassal state. So far, the strategies put in place by Hamad to insure Qatar from regional pressure have paid off. But how long can this last?

Qatar’s Western allies are also Saudi Arabia and the UAE’s. Thus far, they have been paralysed by indecision over the standoff, and after failed mediation attempts have decided to leave the task of resolving what they see as a “family affair” to the Emir of Kuwait, Sabah al-Sabah. As long as the Quad limits itself to economic and diplomatic attacks, they are unlikely to pick a side. It is by no means clear they would side with Doha in a pinch (President Trump, in defiance of the US foreign policy establishment, has made his feelings clear on the issue). Although accusations that Qatar sponsors extremists are no more true than similar charges made against Saudi Arabia or Kuwait – sympathetic local populations and lax banking regulations tend to be the major issue – few Western politicians want to be seen backing an ally, that in turn many diplomats see as backing multiple horses.

Meanwhile, although Qatar is a rich country, the standoff is hurting its economy. Reuters reports that there are concerns that the country’s massive $300bn in foreign assets might not be as liquid as many assume. This means that although it has plenty of money abroad, it could face a cash crunch if the crisis rolls on.

Qatar might not like its neighbours, but it can’t simply cut itself off from the Gulf and float on to a new location. At some point, there will need to be a resolution. But with the Quad seemingly happy with the current status quo, and Hamad’s insurance policies paying off, a solution looks some way off.