Proposal to make sex by deception a crime

[stumbledin]

(I thought I would post this link as a number of threads have within them a common theme of sex by deception.)

... The paper, published in Legal Studies, the journal of the Society of Legal Scholars (SLS), explores how this framework could be applied to bring clarity to cases of deceptive sex involving HIV status, undercover police officers or so-called “gender fraud”. ...

scottishlegal.com/article/new-paper-proposes-framework-for-criminalising-deceptive-sex

I actually dont know much about this and the project home page isn't very clear. But this is an early article from the author:

Sex, Identity and Recognition: Re-thinking ‘Rape by Deception’ inherentlyhuman.wordpress.com/2019/02/07/sex-identity-and-recognition-re-thinking-rape-by-deception/

Given the horrific nature of what was done to the women deliberately entrapped by undercover police - some of whom had children with men who were completely different people, others of whom lost the chance to have children altogether, before a scripted 'mental breakdown' was used by these men to vanish from their lives, leaving devastation behind... this sounds interesting. The carnage wrought is beyond belief, or words. And for the wives, who thought their husbands were dealing with terrorists or organised serious crime, only to find they were spying on activists and shacked up with oblivious women! The abuse is horrendous, and misogynist, in equal measure. Not sure much can be done about the second, other than holding the state to account for using those women as human anchors. The former, though - it should be more heavily penalised than it is, lying about something as fundamental as who you are, to cheat a consent that would be unlikely in more honest circumstances, absolutely.

It's already an offence to commit deception around your biological sex when sleeping with someone, as it means consent is not sufficiently informed. It seems sensible to extend that to HIV status, and when assuming a false identity. The abusive nature of the conduct is so clear - why should someone be able to harm another person so fundamentally, and cheat their consent, to their own massive detriment?

Thank you for posting these. They're thought-provoking, to say the least.

The author of this paper is very much on the TRA bandwagon and has clarified before that she thinks that a person’s right to express their gender-identity should override any interests that the victim might have. So she is not calling for criminalisation or deceptive sex (although I admit to not having read the article, but I would be shocked if she was in favour of that).

By the way if you do want full texts of academic papers, copy the link to the article, paste it into the website scihub and it will bring up the full text.

It says in the intro that it includes looking at "gender fraud" - but I see that is in quotes, so maybe that is indicating that the author / proposer doesn't think that is a real deception.

But either way, if there is any prospect of this becoming law, a bit like the GRA, we need to make sure that women / feminists are informed as to what is being proposed.

AS I said in my intro, in a number of threads it has come up that some form of deception has been used against women and put them in harms way, often with long term effects.

I read these articles and found it biased as the author believes in gender ideology which we must always remember has no basis in reality. It was interesting to note that all the previously prosecuted cases involved women pretending to be men. What happened with the spy cops is terrible and I’m interested to see how that would work within this context

OP, I agree it’s an interesting topic and it’s just a shame that someone who is more gender-critical is not investigating it. If you look at the first footnote of Chloe Kennedy’s blog that you linked to, she states that she agrees with Alex Sharpe’s view that there is no deception in cases where the perpetrator identifies as transgender. Alex Sharpe has said on numerous occasions that a person’s gender identity will always override a woman’s right to physical integrity.

Sounds like it could be a dangerous move for women if "gender" rather than sex deception is listed. We could potentially see women with "masculine" personality traits jailed by their partners and husbands. And it's back to the witch trials - which let's face it was where this was always heading

I think it does make a difference whether the person in question has had reassignment surgery as to whether it’s deceptive. If someone has had surgery to the extent that they pass as the opposite sex and appears to have genitalia of the opposite sex to what they were born, I don’t necessarily think there is an obligation to inform all future partners of their history. In a similar vein, I don’t think there is an obligation on those with intersex conditions that mean they might be chromosomally the opposite sex from their external genitalia to inform sexual partners of that. However, the vast majority of transwomen have had no surgery and these cases will involve a woman/man being confronted with a male body when they expected a female one (and vice versa), which is likely to be upsetting and potentially traumatic. In particular, it could be highly traumatic for those who have survived male sexual violence and only wish to sleep with women.

I have now read some of the reference material and it is a shame that this is being put forward by someone who in facts does not want those who have had transgender surgery to have to reveal this to a potential sexual partner.

But this is why I think it is important that gender critical women keep an eye of what is being put forward.

We dont want to be caught on the back foot again.

True. The problem is that hardly anyone dares to be gender-critical in academia because there’s such vilification of people, especially women, who hold that view. That means that all the funded research is being done by people who want to push gender ideology. There is no balance. You can’t get GC views published because the journals would get attacked so you’re forced to resort to blogs or self-publishing, which is then slammed for showing a lack of quality (not true- many of the blogs by GC women are far more rigorous than some of the dross published in peer reviewed journals, and peer review in social sciences just means that you managed to find 2 people who agreed with you). Same in the third sector and public sector - you risk losing funding if you’re seen to disagree with the TWAW mantra so hardly anyone dares do it. Case in point - DV shelters and rape crisis centres. Always always with the unproven and unjustifiable assertion that TW are far more vulnerable than natal women and face so many more risks that why would we be so mean as to exclude them from accessing services for women.

So depressing.

My understanding is that this revolves around section 74 of the Sexual Offences Act 2003: which states that consent requires agreement by choice, and freedom and capacity to make that choice.

So if a woman pretends to be a man to have sex with me, using a prosthetic, when I thought she was a man with an actual penis - I haven't consented and that is a sexual offence. That seems right to me.

On this basis, though, I don't understand why the plain clothes officers who had sex with women as part of their cover haven't already been prosecuted. Surely these were sexual offences? (I think these men need to be prosecuted - what they did was vile sexual exploitation; their victims had no chance to consent in any meaningful way.)

I do worry though about where to draw the line. Say I meet a man and tell him I have no children -whereas in fact I'm a single mother. Does that remove his capacity to consent? Or if I tell him I'm a Labour voter, when in fact I'm a committed Tory. Does that? (In neither of these cases do I think this should be a criminal offence.)

How about if a man tells me he's single, whereas in fact he's married? (He's a pig, but I don't think he should be criminalised - but then I'm not a committed Christian. Maybe if I was this would be so utterly fundamental to me that it would cause me huge trauma. Is that relevant?)

I suppose what I'm getting at is that I think for law to work properly there needs to be a way to draw a line - criminal acts on one side, legal (even if deplorable) on the other. And a way for people to tell which side of the line they're on. Sometimes this line is arbitrary (for instance the age of consent)- that doesn't matter, so much as the fact that it's there, and is easily identifiable. What is the line when it comes to sex and deceit? And what should it be? When should deceit negate consent? Can a bright line ever be drawn?

It might, for example, mean that deception based on occupation, social status, wealth, religion, and any number of other characteristics and attributes should count.

Leaving the trans thing aside for the moment, I do think lying to get someone into bed should be criminalised. The person is not consenting to sleep with you, they are consenting to sleep with the made up you. I don’t understand why this is allowed.

I think it does make a difference whether the person in question has had reassignment surgery as to whether it’s deceptive

I don't think this holds. Imagine someone sufficiently naive to be misled by the surgery, perhaps they're a virgin. They're going to be getting up close and personal with something they think is a vagina/penis. But they're not having the experience they believe themselves to be having - they might decide they don't like sexual interaction with that type of genitalia, on the basis of an experience they never actually had. (I know there is a built in assumption there that surgically created genitals are more likely to lead to bad sexual experiences, but given the very high rates of complications with these surgeries I think the assumption is justifiable.)

Also the microbiome of a neovagina is not the same as the microbiome of a vagina. This is a very blunt thing to say but I think the E. coli risk is something people should be able to give informed consent to.

(I can link a citation re microbiome if anyone wants it.)

@dontwantamirena

It might, for example, mean that deception based on occupation, social status, wealth, religion, and any number of other characteristics and attributes should count.

Leaving the trans thing aside for the moment, I do think lying to get someone into bed should be criminalised. The person is not consenting to sleep with you, they are consenting to sleep with the made up you. I don’t understand why this is allowed.

Completely agree with this. I understand the arguments against, but people should be made to realise just how much of a violation it is to lie to someone in order to gain access to their body. The lie comes about because the liar knows that without it, consent would be withheld. There are far too many men (and it’s usually men), who use lies, subterfuge and money /goods and violence to access women who, if they had the full picture, wouldn’t go near them with a ten foot pole. Why should only force be punished? The lie can be just as harmful. Stealthing is also rape IMO.

On the other threads about this there were examples shared of sucessful prosecutions saying the deception was about occupation / status and / or ethnic identity.

And I think in the footnote links to the article in my intro to this thread, it was the "requirement" that someone who had had reassingment surgery should tell a potential partner their actual sex, that had prompted the author to make proposals that this should not be seen as deception in the legal sense.

Transgender suspects

As set out in the Code for Crown Prosecutors, prosecutors must apply the principles of the European Convention on Human Rights, in accordance with the Human Rights Act 1998, at each stage of a case. Prosecutors are also bound by the duties set out in the Equality Act 2010. This is especially relevant when making decisions that impact on transgender suspects. Prosecutors should address suspects according to their presented gender by using the correct gender and pronouns in all documentation.

Prosecutors reviewing sexual offence cases involving suspects who are transgender need to be aware of, and sensitive to, all the relevant circumstances and should ensure the police supply as much information as possible in order to properly inform their decision making. For example prosecutors will need to know the suspects position in relation to the Gender Recognition Act 2004 (GRA).
Evidential considerations

When considering the issue of consent as part of the evidential stage of the Full Code Test prosecutors should be aware that the Court of Appeal in Justine McNally v R [2013] EWCA Crim 1051 determined that deception as to gender can vitiate consent (paragraph 27).

Whether there has been deception as to gender will require very careful consideration of all the surrounding circumstances including:

How the suspect perceives his/her gender;
What steps, if any, he/she has taken to live as his/her chosen identity; and
What steps, if any, he/she has taken to acquire a new gender status.

www.cps.gov.uk/legal-guidance/rape-and-sexual-offences-chapter-3-consent

This doesn't seem very clear as it raises the fact again that under the EA Sex is a protected characteristic, but then so in gender reassignment.

Here are some of the other threads on FWR that have touched on this issue:

www.mumsnet.com/Talk/womens_rights/3696215-Does-lying-about-contraception-make-it-rape
www.mumsnet.com/Talk/womens_rights/3976297-Lying-about-vasectomy-doesn-t-make-it-rape
www.mumsnet.com/Talk/womens_rights/4042896-Man-who-pierced-holes-in-condoms-is-jailed-for-rape-court-treating-this-more-severely-than-sex-by-deception
www.mumsnet.com/Talk/womens_rights/3680612-Sex-under-false-pretences-possibly-triggering
www.mumsnet.com/Talk/womens_rights/3791652-Why-is-the-21-year-old-woman-posing-as-a-boy-not-trans

(not in date order)

I think it’s a slippery slope because different things are of different importance to people. So if I feel really strongly about political views and feel violated if I had sex with someone who lied about political affiliation, should that be a crime? Same with things like income or relationship status or criminal record. To some people, it is of massive importance whereas for others, it’s not.

Also, what about cases where you’re already in a relationship with someone and they fail to tell you about something that, had you known it, you would have ended the relationship? Would that also count as sex by deception? So, say, your partner starts an affair and has a secret second family, but does this after you’re already together.

I think that any deception to gain access to someone’s body is repugnant but not necessarily something that should be criminal because it’s so subjective what people would regard as crossing the line.

I do take the point about health risks of neovaginas and stuff. I think I am a bit undecided because it depends on the circumstances and I’d be worried that it might then extend to intersex people having to disclose their medical status too. Or those who have had vasectomies or sterilisation, or those who are infertile. Although I don’t condone not telling partners important things like that, I’m not sure it should be a crime. Maybe it should make a difference whether it was an outright lie or whether it was just a failure to tell because the question wasn’t asked, which wouldn’t place a positive obligation on the person to disclose.