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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US election 2016: Trump threatens to deny democracy

When asked if he would accept the result of the election, the reality TV star said that he would have to “keep you in suspense.”

During this insane bad-acid-trip of an election campaign I have overused the phrase “let that sink in.”

There have been at least two dozen moments in the last 18 months which I have felt warranted a moment of horrified contemplation, a moment to sit and internalise the insanity of what is happening. That time a candidate for president brought up his penis size in a primary election debate, for one.

But there was a debate last night, and one of the protagonists threatened to undermine democracy in the United States of America, which throws the rest of this bizarre campaign into stark relief.

It was the third and final clash between an experienced if arguably politically problematic former senator and secretary of state – Hillary Clinton –  and a reality TV star accused of a growing number of sexual assaults – Donald Trump – but the tone and content of the debate mattered less than what the latter said at one key, illuminating moment.

That statement was this: asked if he would accept the result of the election, Donald Trump said that he was going to “look at it at the time,” and that he would have to “keep you in suspense.”

If your jaw just hit the floor, you have responded correctly. The candidate for the party of Lincoln, the party of Reagan, the party of Teddy Roosevelt, declined to uphold the most fundamental keystone of American democracy, which is to say, the peaceful transition of power.

Let that sink in. Let it sit; let it brew like hot, stewed tea.

This election has been historic in a vast number of ways, most important of which is that it will be, if current polling is to be believed, the election which will bring America's first female president to the White House, almost a century after women's suffrage was enabled by the 19th amendment to the constitution in August 1920.

If the last near-century for women in America has been a journey inexorably towards this moment, slowly chipping away at glass ceiling after glass ceiling, like the progression of some hellish video game, then Donald Trump is as fitting a final boss as it could be possible to imagine.

For Trump, this third and final debate in Las Vegas was do-or-die. His challenge was near-insurmountable for even a person with a first-class intellect, which Trump does not appear to possess, to face. First, he needed to speak in such a way as to defend his indefensible outbursts about women, not to mention the increasing number of allegations of actual sexual assault, claims backstopped by his own on-tape boasting of theoretical sexual assault released last month.

This, he failed to do, alleging instead that the growing number of sexual assault allegations against him are being fabricated and orchestrated by Clinton's campaign, which he called “sleazy”, at one point to actual laughs from the debate audience.

But he also needed to reach out to moderates, voters outside his base, voters who are not electrified by dog-whistle racism and lumbering misogyny. He tried to do this, using the Wikileaks dump of emails between Democratic party operators as a weapon. But that weapon is fatally limited, because ultimately not much is in the Wikileaks email dumps, really, except some slightly bitchy snark of the kind anyone on earth's emails would have and one hell of a recipe for risotto.

In the debate, moderator Chris Wallace admirably held the candidates to a largely more substantive, policy-driven debate than the two previous offerings – a fact made all the more notable considering that he was the only moderator of the three debates to come from Fox News – and predictably Trump floundered in the area of policy, choosing instead to fall back on old favourites like his lean-into-the-mic trick, which he used at one point to mutter “nasty woman” at Clinton like she'd just cut him off in traffic.

Trump was more subdued than the bombastic lummox to which the American media-consuming public have become accustomed, as if his new campaign manager Kellyanne Conway had dropped a couple of Xanax into his glass of water before he went on stage. He even successfully managed to grasp at some actual Republican talking-points – abortion, most notably – like a puppy who has been semi-successfully trained not to make a mess on the carpet.

He also hit his own favourite campaign notes, especially his opposition to the North American Free Trade Agreement (NAFTA) - but ultimately his intrinsic Donald Trumpiness couldn't stop itself from blazing through.

Remember the Republican primary debate when Trump refused to say that he would accept the party's nominee if it wasn't him? Well, he did it again: except this time, the pledge he refused to take wasn't an internal party matter; it was two centuries of American democratic tradition chucked out of the window like a spent cigarette. A pledge to potentially ignore the result of an election, given teeth by weeks of paranoiac ramblings about voter fraud and rigged election systems, setting America up for civil unrest and catastrophe, driving wedges into the cracks of a national discourse already strained with unprecedented polarisation and spite.

Let it, for what is hopefully just one final time, sink in.

Nicky Woolf is a writer for the Guardian based in the US. He tweets @NickyWoolf.