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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“Journalists are too scared to come”: Refugees on the forgotten war in Yemen

Only the few who have managed to flee the war-torn country can reveal the suffering of those left behind.

Last weekend’s BBC Our World report on the humanitarian crisis caused by the Yemen civil war highlighted that not only is the conflict a forgotten war, it is also an unknown war. Since war broke out 18 months ago in March 2015, surprisingly little has been written about the conflict, despite its similarity to ongoing and widely-reported other conflicts in the region, such as the Syrian crisis.

The main conflict in Yemen is taking place between forces allied to the President, Abdrabbuh Mansour Hadi, and those loyal to Zaidi Shia rebels known as Houthis, who forced Hadi to flee the capital city Sana’a in February. The loyalties of Yemen’s security forces are split, with some units backing President Hadi and others his predecessor Ali Abdullah Saleh, who is seen as the leader of the Houthi forces.

While these two forces have been at war, separate terrorist groups have been gaining more and more influence on the ground. Opposed by both the Houthis and Hadi’s forces, al-Qaeda in the Arabian Peninsula (AQAP) have staged deadly attacks from strongholds in the south and south-east. They are also opposed by Islamic State, which has claimed responsibility for a number of suicide bombings in Sana’a.

After rebel forces closed in on the president's southern stronghold of Aden in late March, a coalition led by Saudi Arabia responded to a request by Hadi to intervene and launched air strikes on Houthi targets.

I have spent the last couple of months working in the “Jungle” refugee camp in Calais, home to refugees from Sudan, Afghanistan, Syria, Iraq, Eritrea, Somalia – to name just a few. Having heard very little about the civil war, I was surprised to meet a handful of Yemeni men living inside the camp.

Hussein*, 28, is a film producer and dancer from Yemen who fled the country two years ago and has travelled through 11 countries to reach the Calais camp, where he has been living for just over a month. In a mixture of English and French, he tells me how groups of Houthi militia forcibly try to confiscate cameras and notebooks from both local and international journalists. He knows local journalists, friends of his, who have been threatened, tortured and even killed by Houthi forces.

He pulls out his phone and shows me a picture of his friend, Mohammed, who worked as a photojournalist, documenting brutality as a result of the war. Mohammed’s friends and family have not heard from him since April; the best-case scenario is that he is being detained, but Hussein seems pretty certain that he is dead. As a result, many who otherwise would have reported on the conflict have fled from besieged cities such as Sana’a, Aden and Taiz to the relative safety of the countryside in the north of the country, or have left Yemen altogether.

His friend Jamil, with whom he shares a tent, adds: “from other countries journalists [they are] too scared to come”. He claims that there are only “five or seven” foreign journalists in the capital city, Sana’a and tells me about journalists from the UK, France and the US who, after spending days being held up by countless militarised checkpoints while trying to reach the main cities, are then interrogated and detained by Houthi forces. If they are let go, they are harassed throughout their visit by National Security officers.

After watching his mother die during an airstrike in the city of Hodaida in January, Jamil took the decision to flee Yemen and claim asylum in Europe. He is worried about his father and his friends who are still in Yemen, especially after hearing reports that random border closures and cancelled domestic flights have been preventing crucial aid convoys of food, medical supplies and trained aid workers from accessing the citizens who are desperately in need of humanitarian assistance. Jamil reminds me that Yemen was in economic crisis even before war broke out, with widespread famine and limited access to healthcare or clean water.

Movement within the country is restricted and dangerous, and in the last twelve months alone, four Médecins Sans Frontières (MSF) facilities have been attacked and destroyed by airstrikes. Writing on 15 September 15, MSF head of mission in Yemen, Hassan Bouceninem spoke of:

“Other health centers, schools, markets, bridges . . . [that] have been attacked and destroyed by airstrikes, shelling, or bombs. Such attacks create direct victims but the war (economic failure, access problems, closing of hospitals, no health staff etc.) also causes a lot of indirect victims within the population.”

Such widespread instability and the resultant lack of access for journalists and aid workers means that it is difficult for the world to know how much Yemen is suffering. Only by speaking to the few who have managed to flee can even begin to grasp the realities of daily life for those left behind.

*Names have been changed to protect the identities of our sources.

Neha Shah has been volunteering in the Calais camp.