There's more than meets the eye in the case of Gayle Newland

The idea of "gender fraud" requires a rethink, argues Alex Sharpe.

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This week witnessed yet another sexual offences conviction for gender fraud (three counts of sexual assault, to be specific) on the basis that the defendant, Gayle Newland, “pretended” to be a man. This particular, and now all too familiar, criminal justice and media trope is alarming for a variety of reasons. These include legal inconsistency, in that gender identity is singled out as the piece of information or slice of subjectivity that demands revelation, the ease with which desire-led intimacy and consent are legally uncoupled, and problematic conclusions of deception in cases involving transgender defendants.

However, it is not doctrinal legal issues concerning the construction of ‘consent’ and/or ‘deception’ that interest me here, but rather what is elided by exclusive media and academic focus on these two legal and philosophical concepts. The most surprising and, for me at least, counter-intuitive aspect of the Newland case, and others before it, lies not in legal conclusions as to where consent ends and deception begins, but in the prior suspension of disbelief regarding the implausibility of the story that makes everything else possible: complaint, prosecution, conviction, sentence, hysteria.

In 1817, the poet and aesthetic philosopher, Samuel Taylor Coleridge, coined the phrase "suspension of disbelief”. He did so in order to suggest that if a writer could inject a “human interest and a semblance of truth” into a fantastic tale, the reader would suspend judgment concerning the implausibility of the story. The case of Gayle Newland, like the cases of Gemma Barker, Justine McNally and Chris Wilson before her, is a case in point. What we should put under the microscope in these kinds of cases is the fact that prosecutors, judges and juries accept so readily and unproblematically, stories so fantastic in their improbability. In other words, when faced by an incredulous tale we should, at least to begin with, adopt the refrain, popularised so sardonically by Victor Meldrew: “I don’t believe it.”

Let us consider for a moment some of the agreed facts in the Newland case: the complainant met the defendant online and conducted a relationship over a two and a half year period; the parties had sex on 10 occasions which involved in excess of 100 hours in each other’s company; on each occasion the complainant wore a blindfold and was therefore unable to see the defendant. In other words, and according to the complainant, her belief in her partner’s male gender identity remained intact despite multiple occasions of sexual intimacy with a female-bodied person, the defendant’s use of a prosthetic device, and the fact that the defendant’s voice fell within the female range. Moreover, unlike in some of the previous, and more explicitly transgender, cases, Gayle Newland was not on testosterone which would have created a body more male to the touch.

The willingness of juries and courts to believe complainants who allege being “tricked” into “non-heterosexual” sex, despite the contrary assertions of defendants, is nothing new. The cases of Barker, McNally and Wilson testify to this fact. In some respects, the Barker case is perhaps the most fantastic in this trilogy. Here one of the complainants, who knew Gemma Barker previously as Gemma, claimed not to realise that she had been sexually intimate with Barker event though she had dated Barker in different “guises” and under different pseudonyms. Thus after the termination of a sexually intimate relationship with Luke Jones (Barker) the complainant became sexually intimate with Connor McCormack (Barker) and at all times claimed to remain ignorant of the fact that Barker, Jones and McCormack were one and the same person. Of course, all of the complainants in these cases might have been “very gullible and naive” as was most recently asserted in the Newland case. But, and here’s the thing, is the reason that (especially heterosexual cisgender) complainant gullibility and naviety resonate so powerfully with courts and juries simply an effect of evidence or is it connected to the legal and cultural conceit that ‘heterosexual’ people would never, other than inadvertently, commune with someone of the same gender? The question and provocation seems all the more apposite in view of the recent findings of a YouGov (August 2015) study which found 1 in 2 young people (aged 18-24) did not identify as exclusively heterosexual (nearly all defendants and complainants in the cases discussed fall within this bracket - in Newland, both parties were 25).

In the Newland case, the blindfold assumed particular significance, albeit that the absence of this feature in previous cases (Barker, McNally, Wilson) did not serve to bring courts to their senses. We might think of the blindfold as a metaphor for all of the so-called ‘gender fraud’ cases. Thus the blindfold might stand for blind in(justice) meted out and perhaps, and as importantly, for disavowal of complainant sexual agency. Ultimately, when it comes to desire-led ‘gender fraud’ cases we should perhaps as judges, jurors and the wider community, take off our blindfolds and suspend, not our disbelief, but our quite fantastical beliefs, especially those informed by a heteronormative and cisnormative world view. 

Alex Sharpe is a Professor of Law at Keele University.