Legal authorities edge toward sanctioning trans murder

Sometimes, there just aren’t words enough to explain how bad something is – or could be. And that, i fear, is the case not just with yesterday’s appalling sentence handed down to Chris Wilson – the trans guy “brought to justice” for speaking the only truth he knew about his gender – but in respect of an alarming high profile rash of such cases being brought, of late, south of the border.

The end result looks likely to be the murder of a trans individual, or indeed, of some member of the wider LGBT community – in turn, the result of a genuinely disgusting double standard now being operated by police and prosecuting authorities in relation to t’tranz.

The words thing

Writing today in the Independent Voices section (and restricted to 800 words) i could barely graze the surface of this topic. My focus, though, was the hypocrisy of police and CPS in bringing these prosecutions, which are essentially debates about how far consent is invalidated by untruthfulness in the sexual arena, while utterly failing to face up to the consequences of this approach more widely.

Pretty much everyone lies to some extent in order to “win” sexual favour. True, some of those lies may be of little consequence. But others are massive in terms of their impact on the person lied to. The individual, for instance, who seriously values their virginity, wants their first sex to be with someone where a meaningful future is at least a possibility, and has succumbed to physical engagement on the promise that their partner is not married. When they are.

That happens – and while many may shrug and move on, there are some for whom that lie will be traumatic.

Equally, lies about age, income, job, children, fertility, religion….the list is endless.

Its a strange place to arrive at. In preinciple, i agree wholly with the right of the trans individual, of whatever gender or none, to self-identify: at the same time, i do not want to end up in a position where we, as a community, seem to be riding roughshod over the sensitivities of those who feel deceived. Stating – as politics – that someone is “wrong” to feel abused, assaulted, feels, itself, incredibly wrong and not something i want to see the trans community doing.

Part of this, i am sure, is about dialogue, understanding.

Towards “trans panic” and murder

An argument i did not have time to develop is that the legal establishment are now skirting perilously close to legitimising “trans panic” as a defence in trials for assault or murder. Worse, i can see how this might be acceptable to the courts in a way that “gay panic” is not.

How so? We-ell, to accept a “gay panic” defence is to accept, at some level, that there is something less valid, more transgressive about gay sex than straight. As if, after murdering a black guy, the defendant were to claim: “But you Honour: i suddenly realised he was black and in that moment of panic i just HAD to smash his skull in”.

Quite.

We can all see how ridiculous that is. As ridiculous as going: “this guy offered to sleep with me and suddenly, the only way i could think of to say no was to …bash his brains out”.

No. Thankfully, while some defendants may try that, the argument that they did it BECAUSE of who the victim was does not run.

But “trans panic”? Or, as it could soon be known, “trans self-defence”? Let’s follow thru the logic of the police and CPS approach. Without full disclosure of birth gender, no consent is valid.

Ergo, any sex, any sexual touching is an assault. And as we all know, you have the right to use reasonable force when defending oneself against an assault. What? You just happened to be unreasonable and your assailant is dead? Shame. And their family claim they know them better than that and they’d NEVER have tried it on without full disclosure? Yeah: but they are no longer here to explain themselves – while you, you vicious little git: yhou are here to claim that “ooo – the nasty tranny tried it on and, and, and…he didn’t tell me he was really a man and….i just lashed out and i am so-ooo sorry”.

Liar! Liar! Liar!

But that is what the legal authorities are now seriously endorsing. And it can only be a matter of time before such a case happens.

If you’re L or G, be very afraid

And for this last point, i am indebted to the Scottish Transgender Alliance. During one of the recent cases on this subject, the question of one of the “perpetrator’s” fingers going where they had no right to go was raised in court. This led to one of those funny-if-it-weren’t-so-serious exchanges in which the legal authorities decided, apparently, that lesbian finger sex is totally different from straight finger sex.

Huh?

Now, i’ll agree that women may display a certain amount more sensitivity below the belt than men do. On account of having direct experience of the hurt that may be caused if they don’t. But really?

Really, really?

That’s another of these outwardly bizarre points that may yet come back to haunt the wider LGBT community – and why, therefore, these recent decisions (Chris Wilson,Justine McNally, Gemma Barker) raise concerns way beyond the trans.

Because in reality, what the court appears to be saying is that sex is not just sex, with orientation determined by whether you happen to like your own gender or t’opposite.

No, sex comes in at least two different varieties: straight sex, and non-straight sex, depending on what bits you are using and what bits you are touching. That is…bizarre. Also, essentially essentialist, in the sense that it seems to delineate and define orientation in ways that defy common sense.

Like: m’learned gents now appear to be saying that a lesbian with a strap-on woman is having essentially different sex from a straight with ditto. That’s unhelpful.

Though its about what i have come to expect from a legal establishment that never emerged grew up much beyond the middle of the last century.

janexx

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About janefae

On my way from here to there
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11 Responses to Legal authorities edge toward sanctioning trans murder

  1. This puts intersex people in a really difficult position. many of us don’t realise the degree of our difference until after we’ve become sexually active, or we don’t know what is or is not within ‘normal range’, and different partners can react very differently to it, too. At what point does that difference place one outside the scope of one’s assigned gender, even if one identifies with that gender? If one, say, developed in a masculine looking way but was assigned female, can one be deemed to have broken the law if approaching sex as a woman, or would this be more acceptable than the same person approaching sex as a man? There is no scientific or medical consensus around the boundaries of sex so I don’t see how the law can reasonably expect to impose one. Even if we consider intersex a special case, at what point does it begin? Where, for example, does a large clitoris become a micropenis, and does it matter if a sexual partner is unfamiliar with the legal standard applied? What is the legal position of a completely feminine-looking woman f she’s discovered to have XY chromosomes?

    I actually raised these issues during the last review of sexual ofences legislation in Scotland – along with issues faced by trans people. Although the commission took some of this into account in its recommendations, they were subsequently ignored. Those responsible for policing sex apparenly just hoped the problem would go away, and now we are seeing the results of that.

  2. Elisabeth says:

    I think you are over simplifying the issue here, which is a very bad thing to do as issues of sexual consent are not a simplistic thing to consider in the first place. Now yes transgender people have a right to privacy and self-determination but then so do the people that they may have sex with.

    We want a situation where for all parties consent is both freely given and informed and that people on both sides have any information that they may consider relevant to ensure that consent can be freely given and informed in nature.

    To call this a “trans-panic” defence is highly unhelpful and a way to try and shut down any rational form of debate on the issue. The simple fact is that some people both men and women for whatever personal reason don’t want to have sex with trans people, just like there will be people who don’t want to have sex with overweight people, or people with tattoo’s and many other different thing.

    So in a society where individual liberty is key (or should be) to run rough shod over the liberty of one person because you don’t agree with it is deplorable.
    Let’s phrase this a totally different way, in a manner so that you don’t have a vested interest in it. Let’s say that it was a young man 18-20 who lied to some girls online about being an up and coming footballer purely so he could have sex with them. They get all star struck and he ends up having a threesome with two of them, who if they had known the truth would never have done such a thing. The truth then comes out he gets arrested, charged and convicted of it. Would you be so quick to jump to the defence of the young man for his actions?

    The key here is consent, and was that consent freely given; and arguably if you hold back something that is quite significant then the consent is not informed.

    • janefae says:

      Thanks, though you are seriously missing the point. I am very careful, very definite in everything i have written on this so far to make clear that the trans community must NOT ride roughshod over the (freely given) consent of the partner in these instances.

      My argument boils down to three components.

      1. There is enormous hypocrisy on the part of the legal authorities in respect of this issue. I would argue that they need to think much more carefully about the consent issue and yes: i would quite likely agree with you on the young man posing as footballer thing. I do not want special rights for trans men or women: i want the same rights for all. In the Indie piece, which isn’t up just yet, the comparison i draw is to Mark Kennedy, not prosecuted, despite the fact that many feel his actions totally invalidated freely given consent.

      2. Again, in the Indie piece, i draw out exactly the point you make. We must not end up arguing or even sounding as though we are arguing for a position where trans identity trumps the right to object/withdraw consent. Again, though, the problem lies not in the consent/non-consent issue, so much as its selective application to the trans community.

      3. Last up, i’djustify my accusation, in the sense that even if the law remains “blind”, a legal system that regularly prosecutes trans folk for concealing birth gender is just ripe for someone to run the “trans panic” defence.

      Sorry, therefore, if you think i’m going somewhere i’m not. I am acutely aware of the concerns you raise and feel that there needs to be a much wider debate on consent than one focused solely on the trans community.

      Janexx

    • No; the “football star” lied. The trans person who does not say they were once misgendered did not. How about everyone who has had at least one gay or lesbian encounter must disclose that fact, lest their partner freaks out from homophobia?

  3. I wouldn’t for one moment support the idea that dishonesty with a sexual partner is to be recommended @Elizabeth. Any act of dishonesty might be hurtful. You make the point that “You can lie in two ways either through a positive action as per the football example or through an act of omission and not divulging something that could be considered important.” That statement might seem quite clever on the surface, but is itself fraught with moral difficulties. It would require that we are all aware at all times what a potential sexual partner might consider important about ourselves. You might feel that Chris Wilson should have known that about his sexual partners. I might enter into a sexual relationship with a man or women only to discover that my medical history is an issue for them. The law as it stands in Scotland would seem to favour my prosecution on this basis. I might consider myself deceived also; I might feel my sexual partner had a duty to inform me that he/she were had feelings of revulsion around gender transition. I can’t see why I must reveal my medical history while another person can conceal their current prejudices.

  4. RBO says:

    Great to see you blogging on this issue Jane.

    I would like to politely disagree though with some of your conclusions.

    Chris Wilson was not sent to jail so although I consider the conviction wrong, I don’t consider the sentence outrageous. However, Justine McNally was sent to jail for three years and put on the Sex Offenders register for life – now that is outrageous.

    The law itself (in England and Scotland) is gender blind for sexual offences as the relevant acts have been drafted this way. Further, in England deception as to gender is unlikely to be a criminal offence. For example the Court of Appeal found that if a man with HIV fails to disclose his status to his partner and has unprotected sex this is not rape, although it could be GBH if the partner is infected. Stephen Whittle points out that “obtaining sexual intimacy by fraud” is not an offence in Scotland.

    So in summary Chris Wilson was persuaded to plead guilty to a non-existent offence and Justine McNally pleaded guilty to sex counts of “Assault by penetration” an offence with a maximum penalty of life even though is a strong legal argument that no offence was committed.

    If these cases were to get to a sufficiently senior court then it is likely that the issue would be resolved – the problem is the guilty pleas. (Gemma Barker also pleaded guilty).

    Justine is still within the appeal window – this is where we must focus our efforts.

    Have blogged on the Justine McNally case here
    http://rachbowyer.wordpress.com/2013/04/01/the-justine-mcnally-case-a-miscarriage-of-justice/

    One final point – Chris’ second victim lied about her age leading him to sleep with her. Why has she not been charged with the fictitious offence of obtaining sexual intimacy by fraud?

    • janefae says:

      Hmmm. I’m not sure whether we are disagreeing, disagreeing, or merely arguing nuance.

      I’ve just read your post on this and i am absolutely in agreement – and very much appreciate the analysis you have provided. Its good.

      You are also fairly spot on with regard to the law. The specific offences used are gender blind. However, there are two aspects of this case that utterly disturb me…well,loads of aspects, really, but here are the two biggies.

      First, the law may be blind, but prosecution practice is not. We know that peeps who “muck around” under the age of consent are mostly not prosecuted because…well, because it would not be in the public interest to criminalise every adult who ever experimented sexually at age 14/15. The DPP has said as much.

      So choices are made.

      I think, from conversations with both the Procurator Fiscal and the CPS that the law is quite capable of being used in this way – to prosecute for not revealing birth gender. But it is also capable of being used to, for instnace, prosecute men who lie about marital status or, more infamously, police undercover bods like Mark Kennedy. The fact that the law has NOT been used in this way tells me oodles about the thinking of police and prosecution authorities.

      Some lying, some fraud is “just the way it is”: other deception is utterly wrong and worthy of three years in prison. Nope: that doesn’t add up0 unless you presume a set of legal authorities who really don’t understand trans.

      Second, while i love playing with the letter and detail of the law and discovering interesting loopholes and things that maybe the legislators didn’t intend, i see the law as having both a direct regulatory effect and a social control effect. The latter is often far more important than the former. There are, i think, rights for trans individuals NOT included in the Equality Act – yet the halo effect of that Act has been such as to usher in a much wider acceptance of trans peeps far more quickly than would otherwise have been the case. Symbolism and public comprehension matter as much/more than the letter of the law.

      The message that i am incredibly fearful that these cases have sent forth is this.

      Deception in sex is a bad thing. Bu-ut…not so bad we are going to prosecute every Tom, Dick and Harry for it. Whereas deception as to gender is so bad that a) we will send you to prison for it and b) it invalidated consent.

      Dopn’t care the precise legalities of that: there is the message going out loud and clear. Which makes me very, very concerned that some git with too much alcohol inside him will go back home with a trans woman one Friday night…lose his rag…bash her over the head with a blunt instrument and, when the police arrive claim self-defence.

      Would that hold any legal water? Well, if he says the victim lied…was about to assault him…it may not be absolute in law: but i can see a jury or two being seriously bemused by such a case and yes: he could get off as the result of that confusion.

      janexx

  5. jmshort1 says:

    Distinguishing what is legal or illegal does not have to be rocket science. And claiming that someone has the right to bash someone else’s skull in because they were wronged is no reason to fail to establish or implement sexual assault by fraud laws. No one should ever bash someone else’s head in….. period.

    Laws are not written to favor one group over another. They are written to protect all people, whether gay, trans or straight. When a sexual predator defrauds a person of sex, they are sexually assaulting that person, not seducing them. Failure to acknowledge this point out of fear that it will be used to excuse a victim’s outrageous response is absurd.

    No one has the right to be a vigilante and punish a person who wrongs them. Justice is up to the courts, not the victim. The only slippery slope here is to claim that being “trans” and defrauding someone of sex should be a protected incident.

    Support proper disclosure in sex and don’t make the inappropriate response of the victim an excuse not to do so. All victims can behave inappropriately, not just victims who are defrauded by transgender sexual partners.

    I would have loved to take out a gun to shoot the man who defrauded me of sex for 3.5 years. The first bullet would have been aimed at his privates. When he’d suffered long enough, I’d have put a bullet through his skull and finished him off. I didn’t. Deal with the victim’s conduct as a separate issue. Don’t throw the baby out with the bath water.

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