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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America’s domestic terrorists: why there’s no such thing as a “lone wolf”

After the latest attack on Planned Parenthood in Colorado Springs, America must confront the violence escalating at its heart.

First things first: let’s not pretend this is about life.

Three people have died and nine were injured on Friday in the latest attack on a women’s health clinic in the United States. Planned Parenthood in Colorado Springs was besieged by a gunman whose motives remain unclear, but right-to-lifers—who should really be called “forced birth advocates”—have already taken up their keyboards to defend his actions, claiming that women seeking an abortion, or doctors providing them, are never “innocent”. 

This was not unexpected. Abortion providers have been shot and killed before in the United States. The recent book Living in the Crosshairs by David S Cohen and Krysten Connon describes in sanguine detail the extent of domestic terrorism against women’s healthcare facilities, which is increasing as the American right-wing goes into meltdown over women’s continued insistence on having some measure of control over their own damn bodies. As Slate reports

In July, employees at a clinic in the Chicago suburb of Aurora, Illinois, reported an attempted arson. In August, firefighters found half a burning car at the construction site of a future clinic in New Orleans. On Sept. 4, a clinic in Pullman, Washington, was set ablaze at 3:30 a.m., and on Sept. 30, someone broke a window at a Thousand Oaks, California, clinic and threw a makeshift bomb inside.

The real horror here is not just that a forced-birth fanatic attacked a clinic, but that abortion providers across America are obliged to work as if they might, at any time, be attacked by forced-birth fanatics whose right to own a small arsenal of firearms is protected by Congress. 

The United States is bristling with heavily armed right-wingers who believe the law applies to everyone but them. This is the second act of domestic terrorism in America in a week. On Monday, racists shouting the n-word opened fire at a Black Lives Matter protest in Minneapolis, injuring three. This time, the killer is a white man in his 50s. Most American domestic terrorists are white men, which may explain why they are not treated as political agents, and instead dismissed as “lone wolves” and “madmen”.

Terrorism is violence against civilians in the service of ideology. By anyone’s sights, these killers are terrorists, and by the numbers, these terrorists pose substantially more of a threat to American citizens than foreign terrorism—but nobody is calling for background checks on white men, or for members of the republican party to wear ID tags. In America, like many other western nations, people only get to be “terrorists” when they are “outsiders” who go against the political consensus. And there is a significant political consensus behind this bigotry, including within Washington itself. That consensus plays out every time a Republican candidate or Fox news hatebot expresses sorrow for the victims of murder whilst supporting both the motives and the methods of the murderers. If that sounds extreme, let’s remind ourselves that the same politicians who declare that abortion is murder are also telling their constituents that any attempt to prevent them owning and using firearms is an attack on their human rights. 

Take Planned Parenthood. For months now, systematic attempts in Washington to defund the organisation have swamped the nation with anti-choice, anti-woman rhetoric. Donald Trump, the tangerine-tanned tycoon who has managed to become the frontrunner in the republican presidential race not in spite of his swivel-eyed, stage-managed, tub-thumping bigotry but because of it, recently called Planned Parenthood an “abortion factory” and demanded that it be stripped of all state support. Trump, in fact, held a pro-choice position not long ago, but like many US republicans, he is far smarter than he plays. Trump understands that what works for the American public right now, in an absence of real hope, is fanaticism. 

Donald Trump, like many republican candidates, is happy to play the anti-woman, anti-immigrant, racist fanatic in order to pander to white, fundamentalist Christian voters who just want to hear someone tell it like it is. Who just want to hear someone say that all Muslims should be made to wear ID cards, that Black protesters deserve to be “roughed up”, that water-boarding is acceptable even if it doesn’t work because “they deserve it”. Who just want something to believe in, and when the future is a terrifying blank space, the only voice that makes sense anymore is the ugly, violent whisper in the part of your heart that hates humanity, and goddamn but it’s a relief to hear someone speaking that way in a legitimate political forum. Otherwise you might be crazy.

American domestic terrorists are not “lone wolves”. They are entrepreneurial. They may work alone or in small groups, but they are merely the extreme expression of a political system in meltdown. Republican politicians are careful not to alienate voters who might think these shooters had the right idea when they condemn the violence, which they occasionally forget to do right away. In August, a homeless Hispanic man was allegedly beaten to a pulp by two Bostonians, one of whom told the police that he was inspired by Donald Trump’s call for the deportation of “illegals”. Trump responded to the incident by explaining that “people who are following me are very passionate. They love this country and they want this country to be great again.”

But that’s not even the real problem with Donald Trump. The real problem with Donald Trump is that he makes everyone standing just to the left of him look sane. All but one republican governor has declared that refugees from Syria are unwelcome in their states. Across the nation, red states are voting in laws preventing women from accessing abortion, contraception and reproductive healthcare. Earlier this year, as congressmen discussed defunding Planned Parenthood, 300 ‘pro-life’ protesters demonstrated outside the same Colorado clinic where three people died this weekend. On a daily basis, the women who seek treatment at the clinic are apparently forced to face down cohorts of shouting fanatics just to get in the door. To refuse any connection between these daily threats and the gunman who took the violence to its logical extreme is not merely illogical—it is dangerous.

If terrorism is the murder of civilians in the service of a political ideology, the United States is a nation in the grip of a wave of domestic terrorism. It cannot properly be named as such because its logic draws directly from the political consensus of the popular right. If the killers were not white American men, we would be able to call them what they are—and politicians might be obligated to come up with a response beyond “these things happen.”

These things don’t just “happen”. These things happen with escalating, terrifying frequency, and for a reason. The reason is that America is a nation descending into political chaos, unwilling to confront the violent bigotry at its heart, stoked to frenzy by politicians all too willing to feed the violence if it consolidates their own power. It is a political choice, and it demands a political response.

Laurie Penny is a contributing editor to the New Statesman. She is the author of five books, most recently Unspeakable Things.