|
Source: (consider it)
|
Thread: Deceit, consent and sexual assault - the case of Gayle Newland
|
Dark Knight
Super Zero
# 9415
|
Posted
This case is really awfully sad, and also raises some interesting issues about what constitutes sexual assault and consent. I had quite a long discussion about it with some friends this evening, and found I was challenged on a number of issues. It seems to me that this was a non-consensual relationship, as the victim was effectively in a relationship with someone who was created by the accused, and thus did not ever consent to a sexual relationship with the accused. This may be the tack the judge is taking when he stated that 'the creation of the alter ego character was "central to the case".' As my interlocutors pointed out, there was however only ever two people involved (so there was no real third party, only a virtual one), and one could argue that a person who lies about their marital status or sexual health in order to convince someone to have sex with them is doing the same thing - engaging in deceit in order to have sex with someone.
I still hold it was non-consensual, but I think the punishment of eight years is extremely harsh in this case. What do you all think?
--------------------
So don't ever call me lucky
You don't know what I done, what it was, who I lost, or what it cost me - A B Original: I C U
----
Love is as strong as death (Song of Solomon 8:6).
Posts: 2958 | From: Beyond the Yellow Brick Road | Registered: Apr 2005
| IP: Logged
|
|
Lamb Chopped
Ship's kebab
# 5528
|
Posted
It seems to me a form of rape. And the other examples you mention (deceit) are more than a little tainted with rape as well, and deserve a punishment they rarely get. I'm okay with the sentence.
--------------------
Er, this is what I've been up to (book).
Oh, that you would rend the heavens and come down!
Posts: 20059 | From: off in left field somewhere | Registered: Feb 2004
| IP: Logged
|
|
lilBuddha
Shipmate
# 14333
|
Posted
Being tricked into sex is not the same as being forced to have sex.
Did the woman commit sexual assault? Yes. Rape? No.
--------------------
I put on my rockin' shoes in the morning
Hallellou, hallellou
Posts: 17627 | From: the round earth's imagined corners | Registered: Dec 2008
| IP: Logged
|
|
Lamb Chopped
Ship's kebab
# 5528
|
Posted
I don't think you can draw a bright line between the two. Rape need not involve physical force--witness statutory rape, rape while the victim is sleeping or unconscious, and the like. There are also cases where someone misrepresents their identity (e.g. the old "bed trick" in literature, where a person sleeps with someone after being led to believe said person is their rightful spouse, and finds out differently later).
Or consider robbery and theft. How much of a difference is there between unlawful taking by force and by trickery?
The effect is much the same.
[ 05. January 2016, 16:47: Message edited by: Lamb Chopped ]
--------------------
Er, this is what I've been up to (book).
Oh, that you would rend the heavens and come down!
Posts: 20059 | From: off in left field somewhere | Registered: Feb 2004
| IP: Logged
|
|
Jack o' the Green
Shipmate
# 11091
|
Posted
quote:
Originally posted by Lamb Chopped:
I don't think you can draw a bright line between the two. Rape need not involve physical force--witness statutory rape, rape while the victim is sleeping or unconscious, and the like. There are also cases where someone misrepresents their identity (e.g. the old "bed trick" in literature, where a person sleeps with someone after being led to believe said person is their rightful spouse, and finds out differently later).
Or consider robbery and theft. How much of a difference is there between unlawful taking by force and by trickery?
The effect is much the same.
I think it depends on how you define your terms. If you define rape as penetrative sex without informed consent, then yes it was definitely rape. If you include the criteria that the person doesn't have option of declining because they are being physically prevented from refusing, or can't refuse without reasonably expecting physical retribution, or because they are asleep/unconscious then I don't think it could be classed as rape. Which isn't to say that it isn't a huge violation of a person's body and personality. I am left wondering about the mental state of the victim during the 'relationship'. Nothing justifies how she was treated, but my goodness, where were her critical faculties?
[ 05. January 2016, 17:11: Message edited by: Jack o' the Green ]
Posts: 3121 | From: Lancashire, England | Registered: Feb 2006
| IP: Logged
|
|
lilBuddha
Shipmate
# 14333
|
Posted
Response to LC.
The hell it is.
I'm not saying what happened in this case is good or not traumatic, But adding force is worse, a lot worse.
Even in your theft example, would you rather I trick you out of a tender or bash you with a stick and take it? Do you honestly think that is the same?
[ 05. January 2016, 17:14: Message edited by: lilBuddha ]
--------------------
I put on my rockin' shoes in the morning
Hallellou, hallellou
Posts: 17627 | From: the round earth's imagined corners | Registered: Dec 2008
| IP: Logged
|
|
lilBuddha
Shipmate
# 14333
|
Posted
quote:
Originally posted by Jack o' the Green:
I think it depends on how you define your terms. If you define rape as penetrative sex without informed consent, then yes it was definitely rape.
Definitely not. The legally correct verdict was sexual assault. The morally correct verdict was sexual assault.
What happened was a very bad thing. But it was a different bad thing than rape.
--------------------
I put on my rockin' shoes in the morning
Hallellou, hallellou
Posts: 17627 | From: the round earth's imagined corners | Registered: Dec 2008
| IP: Logged
|
|
Enoch
Shipmate
# 14322
|
Posted
I haven't really picked up on this case. So all I know about it is what is in the linked Guardian report.
Nevertheless, irrespective of whether one eventually decides this ought technically to be sexual assault or rape - and remember LilBuddha that this a a categorisation issue that differs between jurisdictions - under any collection of arguments, once it has been decided the facts were as described, it was a very heinous crime. One can't get round that. So I find it impossible to disagree with either the result or the sentence. Nor can I see any reason why the accused should be screaming or claiming - if she is - that she has suffered an injustice, nor any reason why her father should be angry.
The circumstances of the case are understandably so disturbing and predictably disturbing, for the victim, that IMHO the accused's claims that her issues of sexuality, a history of low self-esteem and “blurred gender lines” should not be a mitigating factor.
--------------------
Brexit wrexit - Sir Graham Watson
Posts: 7610 | From: Bristol UK(was European Green Capital 2015, now Ljubljana) | Registered: Nov 2008
| IP: Logged
|
|
TomM
Shipmate
# 4618
|
Posted
quote:
Originally posted by Enoch:
I haven't really picked up on this case. So all I know about it is what is in the linked Guardian report.
Nevertheless, irrespective of whether one eventually decides this ought technically to be sexual assault or rape - and remember LilBuddha that this a a categorisation issue that differs between jurisdictions - under any collection of arguments, once it has been decided the facts were as described, it was a very heinous crime. One can't get round that. So I find it impossible to disagree with either the result or the sentence. Nor can I see any reason why the accused should be screaming or claiming - if she is - that she has suffered an injustice, nor any reason why her father should be angry.
The circumstances of the case are understandably so disturbing and predictably disturbing, for the victim, that IMHO the accused's claims that her issues of sexuality, a history of low self-esteem and “blurred gender lines” should not be a mitigating factor.
But as LilBuddha's link shows (and click on to the next section for the comparison), in the law of the jurisdiction where this offence occurred, if there is no penis involved, it cannot be rape. (I suspect, though I have not looked up the judgement, that this case is technically Assault by Penetration under para. 2 rather than Sexual Assault as per para. 3).
Given the wording of the law (and leaving aside the moral question for a moment), I can understand how one could reach the conclusion that the events described in the newspaper report were not illegal. There appears to be no dispute that there was consent to the action, the question lies in whether such consent necessarily presumes honesty on behalf of the person obtaining it.
There lies a question as to what extent of deception invalidates consent. Whilst presumably lying about whether one had one pint or two in the pub before coming home does not of itself do so, it is clearly reasonable to conclude that this much, much greater deception is a long way the other side of that line.
Posts: 405 | Registered: Jun 2003
| IP: Logged
|
|
Jack o' the Green
Shipmate
# 11091
|
Posted
quote:
Originally posted by TomM:
Given the wording of the law (and leaving aside the moral question for a moment), I can understand how one could reach the conclusion that the events described in the newspaper report were not illegal. There appears to be no dispute that there was consent to the action, the question lies in whether such consent necessarily presumes honesty on behalf of the person obtaining it.
There lies a question as to what extent of deception invalidates consent. Whilst presumably lying about whether one had one pint or two in the pub before coming home does not of itself do so, it is clearly reasonable to conclude that this much, much greater deception is a long way the other side of that line.
Deception intrinsically invalidates consent for the simple reason that 'consent' means informed consent. Lack of relevant information regarding the decision being made means that the person isn't making an informed decision and could reasonably have made a different one if they were aware of all the relevant facts
Posts: 3121 | From: Lancashire, England | Registered: Feb 2006
| IP: Logged
|
|
lilBuddha
Shipmate
# 14333
|
Posted
Though the law so states, I disagree that the difference between rape and not rape is that of a man using his penis. Using fingers or other objects is still the same.
The difference in this case is the deception.
--------------------
I put on my rockin' shoes in the morning
Hallellou, hallellou
Posts: 17627 | From: the round earth's imagined corners | Registered: Dec 2008
| IP: Logged
|
|
Augustine the Aleut
Shipmate
# 1472
|
Posted
quote:
Originally posted by lilBuddha:
Being tricked into sex is not the same as being forced to have sex.
Did the woman commit sexual assault? Yes. Rape? No.
Depends on your jurisdiction. In Canada, for instance, rape does not exist in criminal law, but sexual assault does.
Posts: 6236 | From: Ottawa, Canada | Registered: Oct 2001
| IP: Logged
|
|
Leorning Cniht
Shipmate
# 17564
|
Posted
A similar question came up in a transgender discussion a year or so ago. The question there was whether a transgender person has any obligation to inform a potential sexual partner about their transgender status or not.
The difference between the case of a trans person and the case of Miss Newland is that there's no evidence that Miss Newland believed herself to be anything other than a woman going through elaborate deceptive act, whereas a trans man believes himself to be a man.
I recall another case a couple of years ago of a Chinese woman who was sued, divorced or something by her husband, because when their child was born, he discovered that her good looks owed more to her plastic surgeon than to her genetic makeup.
At some level, all of these involve some kind of deception.
(And then, of course, there's the more common "I really love you" and "no, I'm not married" forms of deception...)
Posts: 5026 | From: USA | Registered: Feb 2013
| IP: Logged
|
|
Ricardus
Shipmate
# 8757
|
Posted
quote:
Originally posted by lilBuddha:
Response to LC.
The hell it is.
I'm not saying what happened in this case is good or not traumatic, But adding force is worse, a lot worse.
Even in your theft example, would you rather I trick you out of a tender or bash you with a stick and take it? Do you honestly think that is the same?
Are you saying that physical trauma is always worse than mental trauma?
--------------------
Then the dog ran before, and coming as if he had brought the news, shewed his joy by his fawning and wagging his tail. -- Tobit 11:9 (Douai-Rheims)
Posts: 7247 | From: Liverpool, UK | Registered: Nov 2004
| IP: Logged
|
|
Lamb Chopped
Ship's kebab
# 5528
|
Posted
quote:
Originally posted by lilBuddha:
Response to LC.
The hell it is.
I'm not saying what happened in this case is good or not traumatic, But adding force is worse, a lot worse.
Even in your theft example, would you rather I trick you out of a tender or bash you with a stick and take it? Do you honestly think that is the same?
Having been on the receiving end of a hell of a lot of abuse, I'd take the physical, most of the time. No doubt that is a choice that others would make differently.
I don't understand why you are so het up about this. If you are using a legal definition of rape (which varies by jurisdiction), there is no reason to be upset about it. Just point out the variation from wording.
If it's a more general definition you're using, you saw upthread that there are variations of rape which do not involve physical force.
As for whether physical harm is worse than emotional harm, that's always going to be a matter of opinion. This victim has experienced betrayal--and not just one time, but as an ongoing action. There's a reason Dante put the betrayers in the lowest circle of hell. Me, I'd prefer a beating to a betrayal of this magnitude. YMMV.
--------------------
Er, this is what I've been up to (book).
Oh, that you would rend the heavens and come down!
Posts: 20059 | From: off in left field somewhere | Registered: Feb 2004
| IP: Logged
|
|
Gee D
Shipmate
# 13815
|
Posted
Rape under that name has now been abolished here and replaced with a definition that includes a wider range of sexual activity. It is still the obligation of the prosecution to prove that the activity occurred without the consent of the complainant, but that must not have been a consent induced by the fraudulent actions or statements of the accused. For example, in Papadimitropoulos's case the accused pretended to the drowsy complainant that he was her husband, returned early from work because it was raining; The High Court held that because her consent had been induced by this fraudulent statement, she had not in fact consented.
English law has gone off on strange tangents in all sorts of areas, but it's good to see from this decision that this is not one of them.
--------------------
Not every Anglican in Sydney is Sydney Anglican
Posts: 7028 | From: Warrawee NSW Australia | Registered: Jun 2008
| IP: Logged
|
|
Leorning Cniht
Shipmate
# 17564
|
Posted
quote:
Originally posted by Gee D:
For example, in Papadimitropoulos's case [..]The High Court held that because her consent had been induced by this fraudulent statement, she had not in fact consented.
Another possibly relevant case is R v Linekar, in the English courts. A man engaged a prostitute for sex, but didn't pay, and never had any intention of paying. He was prosecuted for rape (the prostitute only consented to sex because of his fraudulent statement that he would pay her), and was found not guilty on appeal. The appeal court held that this fraud wasn't sufficient to void the woman's consent.
Posts: 5026 | From: USA | Registered: Feb 2013
| IP: Logged
|
|
Dark Knight
Super Zero
# 9415
|
Posted
The case Gee D has cited differs from this one (as I understand it) because there were only two actual entities involved, not three. Although my argument remains that the accused created a virtual entity, and it was this virtual person that the victim actually consented to a sexual relationship with. In which case, no consent was given by the victim to the accused.
However, as I stated in the OP, once we take that position one wonders about the status of relationships wherein significant deception by one party was involved. What constitutes a criminal deception, one that rises to the level of sexual assault?
While there may be significant mitigating factors in this case which don't come through in this news report, it does seem incredible that someone could be deceived like this for so long. The judge clearly regarded the accused as highly manipulative, and I'm in no position to doubt that, but there also seems to have been some mental illness in play, which I thought might have been important in sentencing. But it seems it wasn't.
Posts: 2958 | From: Beyond the Yellow Brick Road | Registered: Apr 2005
| IP: Logged
|
|
Dark Knight
Super Zero
# 9415
|
Posted
I have a thread about this open on my Facebook wall, and there one of my friends compared the Gayle Newland case to this one. The implication being that Lisa Jones was deceived into a relationship with a person who did not exist.
Does this mean, as my friend also suggested, that Newland is being punished primarily for lying about her gender?
--------------------
So don't ever call me lucky
You don't know what I done, what it was, who I lost, or what it cost me - A B Original: I C U
----
Love is as strong as death (Song of Solomon 8:6).
Posts: 2958 | From: Beyond the Yellow Brick Road | Registered: Apr 2005
| IP: Logged
|
|
Leorning Cniht
Shipmate
# 17564
|
Posted
quote:
Originally posted by Dark Knight:
What constitutes a criminal deception, one that rises to the level of sexual assault?
Section 76 of the Sexual Offenses Act 2003:
quote:
(2)The circumstances are that—
(a)the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;
(b)the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.
Part a is usually the "I'm a doctor and I need to examine your breasts" case.
Part b catches the man pretending to be the absent husband.
I think in this case, the ruling was that Miss Newland was impersonating "Kye Fortune" - a person known personally to the complainant - even though "Kye Fortune" was a virtual persona.
The law here does not seem open to much expansion in the direction of prosecuting "fraudulent sex".
Posts: 5026 | From: USA | Registered: Feb 2013
| IP: Logged
|
|
Dark Knight
Super Zero
# 9415
|
Posted
Thanks LC, that is quite useful.
--------------------
So don't ever call me lucky
You don't know what I done, what it was, who I lost, or what it cost me - A B Original: I C U
----
Love is as strong as death (Song of Solomon 8:6).
Posts: 2958 | From: Beyond the Yellow Brick Road | Registered: Apr 2005
| IP: Logged
|
|
Leorning Cniht
Shipmate
# 17564
|
Posted
I don't know whether you could successfully argue that this case met part a, and that Miss Newland deceived her victim over the nature of the relevant act because the victim had thought she was having sex with a penis, rather than a strap-on apparatus.
I'm pretty sure you could construct movie-scenarios that would meet this case. Consider, for example, a lesbian who wants to get pregnant, and agrees to sex (rather than turkey-baster) with a male friend for this purpose.
If the man knows that he's infertile, I suspect he falls foul of part a here.
Real penis vs fake penis seems a little thin, though.
Posts: 5026 | From: USA | Registered: Feb 2013
| IP: Logged
|
|
marsupial.
Shipmate
# 12458
|
Posted
quote:
Originally posted by Dark Knight:
I still hold it was non-consensual, but I think the punishment of eight years is extremely harsh in this case. What do you all think?
Eight years seems over the top to me, though no doubt that's partly because eight years is a lot for any sex assault in Canada. (E.g., in Alberta, a province not known for warm-and-fuzziness in sentencing practice, there is a judicially created category of "major sex assault" which is supposed to have a starting point of 3 years.)
There are some really strange facts here too. For starters, who would agree to have sex with someone who isn't willing to let you actually see them?
Posts: 653 | From: Canada | Registered: Mar 2007
| IP: Logged
|
|
Doublethink.
Ship's Foolwise Unperson
# 1984
|
Posted
A vulnerable adult who is not very bright and desperate for affection.
[ 06. January 2016, 00:47: Message edited by: Doublethink. ]
--------------------
All political thinking for years past has been vitiated in the same way. People can foresee the future only when it coincides with their own wishes, and the most grossly obvious facts can be ignored when they are unwelcome. George Orwell
Posts: 19219 | From: Erehwon | Registered: Aug 2005
| IP: Logged
|
|
Leorning Cniht
Shipmate
# 17564
|
Posted
quote:
Originally posted by marsupial.:
Eight years seems over the top to me, though no doubt that's partly because eight years is a lot for any sex assault in Canada.
Eight years is the minimum suggested sentence for a sustained, ongoing series of sexual assaults. A one-off would have been less.
Posts: 5026 | From: USA | Registered: Feb 2013
| IP: Logged
|
|
mousethief
Ship's Thieving Rodent
# 953
|
Posted
Not just real penis versus fake penis, but MAN with real penis versus WOMAN with fake penis. From what I'm told (not wishing to steer into Dead Horse territory), that matters a lot to a lot of people.
[ 06. January 2016, 00:50: Message edited by: mousethief ]
--------------------
This is the last sig I'll ever write for you...
Posts: 63536 | From: Washington | Registered: Jul 2001
| IP: Logged
|
|
Leorning Cniht
Shipmate
# 17564
|
Posted
quote:
Originally posted by mousethief:
Not just real penis versus fake penis, but MAN with real penis versus WOMAN with fake penis. From what I'm told (not wishing to steer into Dead Horse territory), that matters a lot to a lot of people.
Yes indeed, and trans women regularly get beaten up (and sometimes killed) over exactly that issue. My reading of the Act is that a trans man would not be guilty of a crime for having sex with a woman, even if he knew that she wouldn't want to consent to sex with a transsexual.
A trans man in that position would be in the same situation as a married man who said that he was single in order to get sex. Morally reprehensible, but not criminal.
Posts: 5026 | From: USA | Registered: Feb 2013
| IP: Logged
|
|
lilBuddha
Shipmate
# 14333
|
Posted
quote:
Originally posted by Ricardus:
Are you saying that physical trauma is always worse than mental trauma?
Yeah, that is what I am saying. See, I am psychic and I know exactly what everyone in the world has ever, and will ever, experience. ![[brick wall]](graemlins/brick_wall.gif)
The wonder of rape is that one doesn't need to find out which is worse for them, because you get both! Two for one, what a bargain.
quote:
Originally posted by Lamb Chopped:
I don't understand why you are so het up about this.
I've a little bit of emotional investment in the subject. Tends to intensify an already intense character.
quote:
Originally posted by Lamb Chopped:
There's a reason Dante put the betrayers in the lowest circle of hell. Me, I'd prefer a beating to a betrayal of this magnitude. YMMV.
OK, I suppose one could define any trickery as betrayal of trust, but I don't think every form of trickery is exactly the same. The level of trust generally determines the betrayal felt. The seller of a used car not being completely honest has not the same level of betrayal as a cheating spouse. Your post I was responding to gave no real gauge.
But, if you wish to ratchet it up to betrayal, I still disagree.
Forcible rape, as I replied to Ricardus, is both emotional trauma and physical trauma.
Whilst the case in the OP is reprehensible, it is different to forcible rape. Only the victim can say just how traumatic it was for her.
Not that I do not understand the trauma of betrayal. If there is one moment that I can say dramatically changed my outlook on life, it was betrayal. But, IMO, it was because of other traumas that the betrayal felt so bad.
--------------------
I put on my rockin' shoes in the morning
Hallellou, hallellou
Posts: 17627 | From: the round earth's imagined corners | Registered: Dec 2008
| IP: Logged
|
|
Lamb Chopped
Ship's kebab
# 5528
|
Posted
I suppose gauge does matter. I suppose a person who has willingly had multiple sex partners and who has no issues with casual sex per se is perhaps (only perhaps) a bit less likely to see this as a major, major betrayal than someone who has had one, or none.
For me, sex basically = marriage, and thus I rate this betrayal as nearly as devastating as finding out one's spouse has had an ongoing, long-term affair. Deceit over a used car doesn't even register in comparison. This is a body-and-soul matter, and you just don't get more personal than that.
--------------------
Er, this is what I've been up to (book).
Oh, that you would rend the heavens and come down!
Posts: 20059 | From: off in left field somewhere | Registered: Feb 2004
| IP: Logged
|
|
mousethief
Ship's Thieving Rodent
# 953
|
Posted
I can't imagine putting trickery in matters of sex and love in the same category as shady used car salesmen. There is a reason that rape is more soul-shattering (by all reports) than merely getting beaten up.
--------------------
This is the last sig I'll ever write for you...
Posts: 63536 | From: Washington | Registered: Jul 2001
| IP: Logged
|
|
Gee D
Shipmate
# 13815
|
Posted
Were the prisoner a man, 8 years for an offence such as this would probably (here at any rate) be on the low side. Certainly had there been any violence the sentence would have been up to about a third greater depending on the seriousness (unless of course there is a charge of assault as well for its own sentence). Another factor which would add to the seriousness of the offence is where the rapist does not use a condom - the victim is at risk of an STD as well as the risk of pregnancy. In either case, there may well be a period of worry to add to the event itself. An actual pregnancy is a further aggravating factor.
I suppose that the degree of physical trauma will vary. For example, a victim may be so drunk or drug affected as to be unable physically to resist; there may not be much physical trauma. I find it impossible to imagine any incident where there would not be substantial emotional and psychological injury even if the victim be unconscious at the time.
--------------------
Not every Anglican in Sydney is Sydney Anglican
Posts: 7028 | From: Warrawee NSW Australia | Registered: Jun 2008
| IP: Logged
|
|
lilBuddha
Shipmate
# 14333
|
Posted
quote:
Originally posted by Lamb Chopped:
I suppose gauge does matter. I suppose a person who has willingly had multiple sex partners and who has no issues with casual sex per se is perhaps (only perhaps) a bit less likely to see this as a major, major betrayal than someone who has had one, or none.
For me, sex basically = marriage,
I would say most people within my peer group accept some level of casual sex when not committed, but respect commitments as exclusive.
quote:
Originally posted by mousethief:
I can't imagine putting trickery in matters of sex and love in the same category as shady used car salesmen.
If that was the impression I gave, it certainly was not my intent.
quote:
Originally posted by mousethief:
There is a reason that rape is more soul-shattering (by all reports) than merely getting beaten up.
Understatement if it is anything.
--------------------
I put on my rockin' shoes in the morning
Hallellou, hallellou
Posts: 17627 | From: the round earth's imagined corners | Registered: Dec 2008
| IP: Logged
|
|
Dark Knight
Super Zero
# 9415
|
Posted
quote:
Originally posted by Gee D:
Were the prisoner a man, 8 years for an offence such as this would probably (here at any rate) be on the low side.
Given the circumstances of this case, were the offender a man it may not have been regarded as a sexual assault at all.
I am still curious as to the argument about consent and the creation of a false identity. As I've said, as I understand it one of the keys to this case is that a fictitious person was created by the offender, and it was this person that the victim actually gave consent to, not the person who was actually having intercourse with her. In the other case I have referenced above, namely Lisa Jones and the undercover policeman she had a relationship with, arguably the same thing occurred. I think it did - she was deceived into a relationship with a fictitious person, that was the person she consented to relating to (including sexually, presumably), and thus the case should probably be treated as a similar assault to the Gayle Newland one.
The question then becomes at what point does this kind of deception abrogate consent? None of us know everything about the people we are in relationship with, that would be simply impossible. But I would hardly think it reasonable for a person lying about being married to be charged with sexual assault on the grounds that this deceit had erased informed consent.
Thoughts welcome.
[ 06. January 2016, 04:30: Message edited by: Dark Knight ]
Posts: 2958 | From: Beyond the Yellow Brick Road | Registered: Apr 2005
| IP: Logged
|
|
Ricardus
Shipmate
# 8757
|
Posted
quote:
Originally posted by lilBuddha:
quote:
Originally posted by Ricardus:
Are you saying that physical trauma is always worse than mental trauma?
Yeah, that is what I am saying. See, I am psychic and I know exactly what everyone in the world has ever, and will ever, experience.
Well, Lamb Chopped has made the point I was trying to make.
If we accept that mental trauma can be worse than physical trauma, I do not think there is an obvious reason why we should consider 'sex without informed consent using deception' as an automatically lesser offence than 'sex without informed consent using physical force'. It will depend on the circumstances of the particular case, which is why judges have a range of sentencing options.
--------------------
Then the dog ran before, and coming as if he had brought the news, shewed his joy by his fawning and wagging his tail. -- Tobit 11:9 (Douai-Rheims)
Posts: 7247 | From: Liverpool, UK | Registered: Nov 2004
| IP: Logged
|
|
The Scrumpmeister
Ship’s Taverner
# 5638
|
Posted
quote:
Originally posted by Leorning Cniht:
My reading of the Act is that a trans man would not be guilty of a crime for having sex with a woman, even if he knew that she wouldn't want to consent to sex with a transsexual.
A trans man in that position would be in the same situation as a married man who said that he was single in order to get sex. Morally reprehensible, but not criminal.
Two trans men in Scotland were convicted of criminal offences in 2013 over this issue.
I looked into these cases in detail and read the judgments but this was nearly a year ago and I do not recall the specific events, nor do I recall the exact offence in each case. I can look those up but don't have time before tomorrow.
However, what I do recall is that in each case there was wilful deception on the part of the accused in these specific cases and that, while it was right that a conviction be made, there was an element to the judgments that made me very uncomfortable indeed about how the law interprets consent in matters such as this, and which seemed to be hinted at in your post.
I'm referring to the general question of where the responsibility lies for ascertaining a person's gender identity (leaving aside, for the time being, questions of wilful deceit). If someone (A) pulls someone (B) in a bar, takes B home and they have sex, and A only learns the following morning that B is trans, and A would not have consented had he known beforehand, has B committed a criminal offence simply because A made the assumption that everybody is cisgender?
We know that trans people exist and are real people in society. Therefore, it seems to my way of thinking that if someone will have a problem having sex with a trans person, then that someone has the responsibility to look after her/his own interests, rather than the trans person having any responsibility to declare something potentially personal to a stranger (particularly when that has all manner of risks to personal safety attached to it). Morally, it doesn't seem to me that I have any responsibility to try to guess and present prospective sexual partners with a list of things about myself they that might potentially have a problem with, just in case. (And yes, I know about the HIV thing but I think that has its own unique factors that don't apply generally.)
The law seems not to agree entirely on this point, as this was an element of the judgments in the 2013 cases. Sadly, when I contacted a few trans advocacy groups about this, the general feedback was that, while it's considered an injustice in how the law stands, nobody was really doing much to challenge it at the moment as it isn't the primary fight just now and resources are limited.
I blogged about it at the time, if anyone's interested.
I don't want to confuse the general question of consent & gender identity with the wilful deception that took place in the case in the OP but I think there's enough overlap for this to be relevant.
[ 06. January 2016, 05:32: Message edited by: The Scrumpmeister ]
--------------------
If Christ is not fully human, humankind is not fully saved. - St John of Saint-Denis
Posts: 14741 | From: Greater Manchester, UK | Registered: Mar 2004
| IP: Logged
|
|
lilBuddha
Shipmate
# 14333
|
Posted
quote:
Originally posted by Ricardus:
If we accept that mental trauma can be worse than physical trauma, I do not think there is an obvious reason why we should consider 'sex without informed consent using deception' as an automatically lesser offence than 'sex without informed consent using physical force'.
Sex without informed consent using physical force is both mental trauma and physical trauma. Even when committed by a stranger, there is a betrayal. One no longer feels safe, every noise, every shadow is a threat. Trust disappears.
Yes, everyone is different. So, should the rapist of a person who recovers extremely well receive time off for having done less damage? Of course not. Guidelines are (supposed to be) for the majority of cases.
--------------------
I put on my rockin' shoes in the morning
Hallellou, hallellou
Posts: 17627 | From: the round earth's imagined corners | Registered: Dec 2008
| IP: Logged
|
|
Dark Knight
Super Zero
# 9415
|
Posted
quote:
Originally posted by The Scrumpmeister:
I blogged about it at the time, if anyone's interested.
Very interested, thankyou Scrumpmeister. I have also shared the post on Facebook.
--------------------
So don't ever call me lucky
You don't know what I done, what it was, who I lost, or what it cost me - A B Original: I C U
----
Love is as strong as death (Song of Solomon 8:6).
Posts: 2958 | From: Beyond the Yellow Brick Road | Registered: Apr 2005
| IP: Logged
|
|
Ricardus
Shipmate
# 8757
|
Posted
quote:
Originally posted by lilBuddha:
quote:
Originally posted by Ricardus:
If we accept that mental trauma can be worse than physical trauma, I do not think there is an obvious reason why we should consider 'sex without informed consent using deception' as an automatically lesser offence than 'sex without informed consent using physical force'.
Sex without informed consent using physical force is both mental trauma and physical trauma. Even when committed by a stranger, there is a betrayal. One no longer feels safe, every noise, every shadow is a threat. Trust disappears.
I don't dispute this but I would draw the opposite conclusion from it.
From the comfort of my own ignorance, ISTM that the trauma even of 'forcible' rape is *primarily* psychological rather than physical. (If severe physical violence is inflicted at the same time, I believe that could be prosecuted as a separate offence, but I may be wrong.) Therefore, separating out the physical harm as though it the factor that takes the offence to another level does not seem right.
At the very least, the physical and the psychological trauma seem so closely intertwined that drawing a moral distinction between the two seems problematic.
--------------------
Then the dog ran before, and coming as if he had brought the news, shewed his joy by his fawning and wagging his tail. -- Tobit 11:9 (Douai-Rheims)
Posts: 7247 | From: Liverpool, UK | Registered: Nov 2004
| IP: Logged
|
|
cliffdweller
Shipmate
# 13338
|
Posted
quote:
Originally posted by Dark Knight:
I am still curious as to the argument about consent and the creation of a false identity. As I've said, as I understand it one of the keys to this case is that a fictitious person was created by the offender, and it was this person that the victim actually gave consent to, not the person who was actually having intercourse with her. In the other case I have referenced above, namely Lisa Jones and the undercover policeman she had a relationship with, arguably the same thing occurred. I think it did - she was deceived into a relationship with a fictitious person, that was the person she consented to relating to (including sexually, presumably), and thus the case should probably be treated as a similar assault to the Gayle Newland one.
The question then becomes at what point does this kind of deception abrogate consent? None of us know everything about the people we are in relationship with, that would be simply impossible. But I would hardly think it reasonable for a person lying about being married to be charged with sexual assault on the grounds that this deceit had erased informed consent.
Thoughts welcome.
Really, the only difference between the two cases seems to be the gender-deception-- that in the Newland case the straight victim was tricked into gay sex, whereas Jones was a straight woman tricked into hetero sex. Which begs the question, do we as a society consider it more of a deception-- more of an assault-- if one is tricked into having sex across orientation than if we are tricked into sex according to orientation? And if we feel that way, is it just our incultured lingering discomfort with same-sex relationships, or does it reflect something more fundamental about an assault on our core identities? Would we have the same level of concern if the gender-deception were reversed-- e.g. a gay man tricked by a straight woman?
--------------------
"Here is the world. Beautiful and terrible things will happen. Don't be afraid." -Frederick Buechner
Posts: 11242 | From: a small canyon overlooking the city | Registered: Jan 2008
| IP: Logged
|
|
Lamb Chopped
Ship's kebab
# 5528
|
Posted
quote:
Originally posted by Dark Knight:
But I would hardly think it reasonable for a person lying about being married to be charged with sexual assault on the grounds that this deceit had erased informed consent.
Thoughts welcome.
See, this is a case where I consider the current state of law barbaric. A great many people regard adultery (=sex where one person is married, not to the other) as a huge moral issue where they might not see any problem with fornication (=unmarried sex between unmarried people) at all. Others have a problem with both, but put less weight on the second. I know of nobody who thinks adultery is less problematic than fornication.
Let's suppose that I were unmarried for a moment. As a traditional Christian and ordinary human being, I would probably face the temptation to fornication on a regular basis. And I might fall to it (God forbid). That's bad enough, but it's on my own head. I knew what I was doing. But if someone later tells me that the other person was married, that's a whole different level of Oh-my-God-please-that-didn't-happen-please, and no amount of "it isn't your fault, it's his" is going to comfort me, or take away my sense of having betrayed his family. And saying "Well, that's the risk you take if you agree to have sex outside of marriage" is hugely unhelpful, as nobody consents to have the rug pulled out from under them in a life-shattering way. Which it would be, for me and for many like me.
I knew somebody's going to jump on me for making a big deal over something that doesn't matter (to them)--adultery and fornication. Collision of worldviews. What I'm pointing out is that there is a large population who feels the same way I do, and if one of them is deceived about a lover's marital status, we're talking major, long-lasting psych impact.
--------------------
Er, this is what I've been up to (book).
Oh, that you would rend the heavens and come down!
Posts: 20059 | From: off in left field somewhere | Registered: Feb 2004
| IP: Logged
|
|
lilBuddha
Shipmate
# 14333
|
Posted
quote:
Originally posted by Ricardus:
Therefore, separating out the physical harm as though it the factor that takes the offence to another level does not seem right.
At the very least, the physical and the psychological trauma seem so closely intertwined that drawing a moral distinction between the two seems problematic.
I am nonplussed.
If the relationship had ended before the deception was revealed and the victim never knew, what trauma would she feel?
Compare that to being held down and being forcibly penetrated.
I am not at all attempting to say the victim here was not traumatised. Just that it is different.
--------------------
I put on my rockin' shoes in the morning
Hallellou, hallellou
Posts: 17627 | From: the round earth's imagined corners | Registered: Dec 2008
| IP: Logged
|
|
Lamb Chopped
Ship's kebab
# 5528
|
Posted
quote:
Originally posted by cliffdweller:
Would we have the same level of concern if the gender-deception were reversed-- e.g. a gay man tricked by a straight woman?
Would we, as a society? Probably not, our society is pretty screwed up. Should we? Yes, certainly.
In my refugee community we've had cases where women have been tricked into sex AND CHILDBEARING by men who obtain marriage licenses, wave them in front of their victims, and announce that the marriage is already legal, already exists, so let's go to bed now. It's usually somewhere along the sixth month that the pregnant woman starts wondering if there wasn't supposed to be some additional ceremony, even though he told her this is how we do things in America...
Assholes.
--------------------
Er, this is what I've been up to (book).
Oh, that you would rend the heavens and come down!
Posts: 20059 | From: off in left field somewhere | Registered: Feb 2004
| IP: Logged
|
|
Enoch
Shipmate
# 14322
|
Posted
quote:
Originally posted by cliffdweller:
Really, the only difference between the two cases seems to be the gender-deception-- that in the Newland case the straight victim was tricked into gay sex, whereas Jones was a straight woman tricked into hetero sex. Which begs the question, do we as a society consider it more of a deception-- more of an assault-- if one is tricked into having sex across orientation than if we are tricked into sex according to orientation?
Yes - though I'm not sure it's healthy to 'score' (if that isn't an inappropriate word choice) relative iniquities in outrageous sexual misconduct. The level of his exploitation and the length of time he did it for makes Stone/Kennedy's deception wicked rather than just bad.
quote:
And if we feel that way, is it just our incultured lingering discomfort with same-sex relationships,
No quote:
/or does it reflect something more fundamental about an assault on our core identities?
Yes. Indeed, the modern view that orientation is inherent to identity enhances that. quote:
Would we have the same level of concern if the gender-deception were reversed-- e.g. a gay man tricked by a straight woman?
Another parallel would be a straight man tricking a gay woman by masquerading as a woman with a dildo, but using the organ with which nature had endowed him.
--------------------
Brexit wrexit - Sir Graham Watson
Posts: 7610 | From: Bristol UK(was European Green Capital 2015, now Ljubljana) | Registered: Nov 2008
| IP: Logged
|
|
Lamb Chopped
Ship's kebab
# 5528
|
Posted
quote:
Originally posted by lilBuddha:
I am nonplussed.
If the relationship had ended before the deception was revealed and the victim never knew, what trauma would she feel?
Compare that to being held down and being forcibly penetrated.
I am not at all attempting to say the victim here was not traumatised. Just that it is different.
Your example is exactly parallel to the case of a woman who is raped while under anesthetic in a hospital. She may never know (after all, pregnancy is not inevitable, and any amount of bruising can be explained by the need to move patients from table to bed while they're still under. I know the latter by experience). Of course she would feel no trauma--until she found out, when it would probably send her world into a tailspin. Just as the victim in the OP case felt no trauma until she found out the facts. You are arguing against yourself, IMHO.
--------------------
Er, this is what I've been up to (book).
Oh, that you would rend the heavens and come down!
Posts: 20059 | From: off in left field somewhere | Registered: Feb 2004
| IP: Logged
|
|
lilBuddha
Shipmate
# 14333
|
Posted
Fucking hell, I give up.
--------------------
I put on my rockin' shoes in the morning
Hallellou, hallellou
Posts: 17627 | From: the round earth's imagined corners | Registered: Dec 2008
| IP: Logged
|
|
Leorning Cniht
Shipmate
# 17564
|
Posted
quote:
Originally posted by The Scrumpmeister:
Two trans men in Scotland were convicted of criminal offences in 2013 over this issue.
It's worth reminding people here that Scotland and England have different legal systems.
quote:
However, what I do recall is that in each case there was wilful deception on the part of the accused in these specific cases and that, while it was right that a conviction be made, there was an element to the judgments that made me very uncomfortable indeed about how the law interprets consent in matters such as this, and which seemed to be hinted at in your post.
Yes, I think you're right that the two Scottish cases you refer to involved similar levels of deception.
Another English example would be Gemma Barker in 2012. Miss Barker disguised herself as three separate teenage boys in order to have relationships with girls. There is, AFAIK, no suggestion that she considers herself trans.
As one reads the statements made by the victims in her case, there's definitely a sense of disgust that they were tricked into sexual activity by a woman - disgust that they wouldn't have felt had Barker been a man.
I rather suspect that the victims of the trans men you refer to might well consider trans men to be "really women", and feel essentially identical disgust.
Which comes back to cliffdweller's point about being tricked into sex that doesn't match your orientation being worse than being tricked into sex that does. The victims in these cases certainly seemed to feel worse because their attacker was of the same sex (or, at least, they perceived their attacker to have the same sex as them, which is what counts here.)
Posts: 5026 | From: USA | Registered: Feb 2013
| IP: Logged
|
|
Leorning Cniht
Shipmate
# 17564
|
Posted
OK, Google has found me a better example. Here, from England, is the failed appeal of a person called Justine McNally against a conviction under similar circumstances.
(McNally formed a relationship with a girl of similar age online whilst presenting as a boy called Scott. Shortly after the girl turned 16 (the age of consent), she arranged to meet Scott, and much sex was had. She later discovered that Scott was a girl.
Scott/Justine was convicted of sexual assault, and the conviction was upheld at appeal.
The link contains rather detailed discussion of the court's thinking. I'm still not sure that one could prosecute a trans man or woman following a bar pickup / one night stand, but I'm less certain of that than I was before I read this.
Posts: 5026 | From: USA | Registered: Feb 2013
| IP: Logged
|
|
|
Printer-friendly view
