The McNally Decision Does Not Criminalise Trans People

Yesterday, I tweeted the decision of the court of appeal in the case of McNally v R [2013] EWCA Crim 1051; which trans bloggers and politicians will know as the “sex by deception” case. I then read the case decision and went on to tweet some of the reactions to the court’s decision to uphold the conviction. The general mood was that any transsexual person having sex in the UK was now open to criminal prosecution.

Then I read the decision again. And again.

The decision is not going to win any awards for clarity and layout. It chops and changes topics a lot, but let’s lay out some information from the case, in order to all be on the same page.

  • The appellant (the defendant in the original criminal trial) presented as male in all interactions with the complainant in the original case;
  • This includes using a male avatar on the ‘Habbo’ MMO/chatroom;
  • The appellant’s Facebook page was in their old name and features pictures in which they presented as female;
  • The appellant stated they were confused about their gender;
  • The appellant stated they wanted a sex change;
  • The appellant wore a strap-on dildo to make it appear they had a penis;
  • The appellant discussed “getting married and having children” with the complainant;
  • The appellant presented as “Scott Hill” during their interactions with the complainant;
  • Scott Hill is the name of another boy at the appellant’s school at the time these interactions were taking place;
  • The appellant pled guilty to all counts in the original trial, except for the count of using the dildo in sex with the complainant;
  • The prosecution did not pursue the count of using the dildo in sex, and the case was decided on the grounds of the other counts (which the appellant plead guilty to);

After these points, things get cloudy. The appellant at first states the complainant found out about their gender identity in 2009 (before any sexual encounters) but then there is another statement about an argument in 2011 when the defendant found out again; at which point things moved quickly and police got involved. Either one of these statements is true or the other is, it’s clear from everything else in the case that they cannot both be true.

The problem then becomes that the case is not about gender identity. According to paragraph 13 of the appeal decision, the appeal in on the following grounds (they are appeals of law, not of fact):

  • The appellant’s legal advisors failed to advise the appellant correctly regarding the matters at the heart of what caused the appellant to plead guilty;
  • The elements of the offence were not made out, so the appellant could not have been properly convicted;
  • The appellant’s plea was equivocal.

The idea of a trans identity becoming criminal due to ‘sex by deception’ fits into the second of these three grounds, so let’s look at that first. The elements of the offence fall under section 2 of the Sexual Offences Act 2003 and are:

  • Intentional penetration by person A of the vagina of person B;
  • The penetration is with a part of the body or anything else;
  • The penetration is sexual;
  • Person B does not consent to the penetration;
  • Person A does not reasonably believe person B consents;
  • “Reasonable belief” is determined having regard to all circumstances, including steps taken by A to ascertain whether B consents.

The court mentions “lots of occasions of oral penetration and occasions of digital penetration”, so the first three elements of the offence are present. Everything therefore hinges on the issue of consent and, potentially, reasonable belief in consent. So let’s look at the facts again. Paragraphs 11 and 12 in particular are problematic because they contain the alleged dates of the complainant discovering the appellant’s gender issues.

From paragraph 11: “On 30 November 2011, M gave a full account to police of these offences. Although one or two answers might be said to be equivocal, she said that she did not know that “Scott” was a girl. She considered herself heterosexual and had consented to the sexual acts because she believed she was engaging in them with a boy called Scott.”

From paragraph 12: “[The appellant] suggested that M found out about her real identity as early as December 2009 and they had a big argument. They eventually started speaking again and then met up.”

I’ve already discussed the problem that only one of these statements can be totally true – either the complainant knew in 2009 or she didn’t. What I want to discuss here is that in both statements, the complainant was not comfortable with dating a woman. If the appellant is not transgendered (and is therefore only presenting as male in order to have sex with the complainant) then both sides’ statements lean very heavily toward there being no consent.

So what if the complainant is transgendered? Now we’re getting to the crux of the problem.

As Zoe O’Connell states in her discussion of this case, “talking about wanting a sex change is enough to get protection as a trans person under the Equalities Act 2010 (sic)”. Section 7(1) of the Equality Act 2010 states (my emphasis):

A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.

Of course the Equality Act 2010 does not cover personal relationships (so you can’t prosecute someone who doesn’t want a gay friend) but it does cover three important groups in this case: schools, the police and the Crown Prosecution Service (“CPS”). Let’s look at paragraph 11 of the decision again.

“the police became involved when the appellant admitted to her(sic) head teacher that sexual acts had taken place.”

The court refers to the appellant as “her” throughout; which some have considered evidence of bias. I’m not convinced of this. I am convinced that the court as an entity hasn’t a clue how to handle transgendered people but my reasons for that go far deeper than this particular case.

In this particular case, I honestly get the impression that the court is under the impression that, because the appellant plead guilty to all but one count that was in front of it, this means the appellant was female. I believe this is why the court puts quotation marks about words like “him,” “his” and “Scott”, rather than because the court is making a judgement on whether female-to-male transsexuals are women.

Why do I think that? Because evidence of the appellant’s transsexuality has not been put forward properly. There was no real chance of that happening because the appellant plead guilty to most charges, and the charge they plead not guilty on was dropped by the CPS – which brings us back to the Equality Act 2010.

As noted previously, paragraph 11 makes it clear that the police were only brought in once the appellant informed the head teacher of their school that they had engaged in sexual activity with the complainant. Both the appellant and the complainant were over the age of consent when all sexual activity took place, so the school actually has no grounds for informing the police about sexual acts taking place.

  • If the appellant were a cisgendered male, would the school have called the police?
  • If the appellant were a cisgendered male, would the police have taken any action given the circumstances?
  • If the appellant were a cisgendered male, would the CPS have ruled there was a case to answer here?

The answer to all three is clearly “no”. Take out the issue of “presenting as male” and what do you have here except a case of a boy over the age of consent travelling to have sex with a girl over the age of consent when both have engaged in an online relationship. If that is now illegal, there are a lot of men and women out there who are going to jail.

This case was clearly brought because of one of two things: either the appellant is not transsexual and was using “gender issues” as an excuse to pursue a sexual relationship with a straight girl; or the appellant is transsexual and the school, police and CPS have violated the Equality Act 2010.

So we have to ask what evidence there is to back up the statements that the appellant is transsexual, because if there are then the entire case should never have been brought.

The Equality Act 2010 does protect a transgendered person from the moment they propose to undergo gender reassignment but unfortunately, you can’t just stand up and say that in court. The court needs more than that. It shouldn’t, but it does because that’s the basis of our legal system (and yes, I agree that sucks).

This is why I say the complaints that the court in McNally has stated “deception over age, marital status, wealth or HIV status does not matter” but gender identity does are simply untrue.

The HIV case (R v EB [2006] EWCA Crim 2945, [2007] 1 WLR 1567) has a significant distinction in it:  the appellant did not lie about having HIV, the topic never came up. It’s ridiculous legal wrangling but, unfortunately, that is the law. If he had been asked if he was HIV positive and had said no, the law would have ended up different.

As it stands, failure to disclose doesn’t vitiate consent but it does leave you open to prosecution for the harm caused if you infect someone. Lying about your status vitiates consent. The court in this ruling (since the court isn’t considering the possibility that the appellant is transsexual) presenting as male while being female as lying about your status. Paragraph 26 of the decision backs this up:

“Assuming the facts to be proved as alleged, M chose to have sexual encounters with a boy and her preference (her freedom to choose whether or not to have a sexual encounter with a girl) was removed by the appellant’s deception.”

Again, I feel that if the defence had put forward some evidence to back up the fact that the appellant is likely transsexual, this case would have gone differently. But they didn’t (entering a guilty plea means there was little to no chance originally but they could have presented something during the appeal), so the court has to go on what is put in front of it.

So what evidence could the defence have brought? The appellant and the complainant met on Habbo, where the appellant was presenting as male. Did the appellant always present as male on Habbo? Surely there was some evidence available for that?

What was the name on the appellant’s email account? It’s common practice to have at least one account with your chosen name on it when you’re transsexual, especially when it’s so easy to get a free webmail address.

Did the appellant keep a diary (online, on paper or in a computer file somewhere) in which they discussed their gender identity? Did they mention it to someone they trusted; in a letter, an email or a text? Was their intention made known anywhere at all, in any form? Surely there was something the defence could have put forward to demonstrate transsexuality?

But if they did, it’s not mentioned by the court. This is why I feel the court has ruled the way it has. This is why it looks like the court has equated “presenting as male while female” with “claiming not to be HIV positive when you are”. It’s a material change that affects consent. Some people don’t want to have sex with people who are the same sex as they are, so of course it affects whether consent was vitiated or not.

Does this mean that this case now makes transsexual people criminals for not disclosing their gender history before having sex? No. There’s nothing here that backs up a claim of that sort – but you can be sure that if the courts ever did lay down a decision like that, I would not be defending them.

2 thoughts on “The McNally Decision Does Not Criminalise Trans People

  1. Hi Zoe and thanks for taking a look at this puzzling case.

    I’ve been involved in campaigning for trans rights for over forty years having dealt with everything more years ago than I care to think about!

    What baffles me is how this ever got to court. The two young people were over the age of consent- indeed, they admitted to having waited to be so before anything happened (if, indeed, anything much did).

    The trans partner should, at least theoretically, have been protected under the Equality Act although the judge seems to have ignored this. It’s particularly depressing that Leveson was involved and he, at least, should have had some clue.

    Permision to appeal was granted so one can only hope this abberant decision will be thrown out on appeal.

    I sometimes wonder if all the effort over the years was worth it given the mess made in the Equality Act, the Marriage Equality Bill and now this!

    1. Hi Jasmin.

      I agree that this case should never have reached the courts. Given how the CPS dropped the one count that would actually have been contested, I would not be surprised if this went to court because a transphobe prosecutor thought they could get an easy conviction out of a confused teenager.

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