R
v McNally
The brief facts of R v McNally were as follows: Justine
McNally was born with female genitalia but wanted gender reassignment surgery
to become physiologically male. McNally communicated online with the
complainant for more than three years. Whilst online McNally used a male
avatar, presented herself as male and talked about having a romantic future,
marriage and family with the complainant. The complainant and McNally engaged
in sexual conversations, over the phone, which included McNally telling the
complainant she would ‘put it in’ which the complainant took to mean McNally’s
penis. When McNally first met the complainant in person, she was dressed in
male clothes and was wearing a strap-on dildo under her trousers. The
complainant and McNally went on to meet on four occasions. During two of those
meetings, McNally penetrated the complainant’s vagina digitally and orally. On
one of those occasions, McNally and the complainant were in a dark bedroom when
McNally rubbed the complainant’s vagina and performed an oral sex act upon her,
McNally then retrieved condoms that she had purchased with the intention of
having sexual intercourse. The complainant alleged that her vagina was
penetrated with a dildo but this count was left to lie on the file before the
case reached the Court of Appeal. When all of these sexual acts took place
McNally was 17 years old and the complainant was 16.
In December 2012, at the
Crown Court, McNally pleaded guilty to six counts of assault by penetration and
the further allegation involving penetration with a dildo was ordered to remain
on the file. McNally was sentenced to three years’ imprisonment in a young
offender institution and a restraining order was granted against McNally for
the protection of the complainant and the complainant’s mother. In 2013,
McNally appealed her conviction and sentence to the Court of Appeal.
The Court of Appeal dismissed
her appeal against her conviction but reduced her sentence from 3 years to 9
months’ detention in a young offender institution suspended for 2 years and
granted a 2-year supervision order. McNally appealed her conviction on three
grounds:[1]
(1) that her legal advisers failed to advise
her correctly on matters that went to the heart of her plea; because
(2) the elements of the
offence were not made out and she could not have been convicted; with the
result that
(3) her plea was equivocal.
The key ground to consider
for the purpose of this report is ground (2).
The Court of Appeal affirmed
that ‘depending on the circumstances deception as to gender can vitiate consent.’[2] The Court of Appeal
explained that, physically, assault by penetration of the vagina is the same
whether committed by a male or female. However, the sexual nature of the
penetration is different ‘where the complainant is deliberately deceived by a
defendant into believing that the latter is a male.’[3] On this rationale, the
Court of Appeal explained that the complainant’s choice ‘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 defendant's
deception.’[4]
If a transgender defendant’s deception as to their gender removes the
complainant’s ability to use their own freedom and capacity to consent to
engaging in sexual activity then the complainant’s consent is vitiated.
With regards to sentencing,
the Court of Appeal found that: McNally did not abuse the trust of the
complainant and therefore ‘the starting point set out in the guideline for an
offence involving penetration with a body part, committed when a victim is 16 years
old or over is two years’ imprisonment with a range of one to four years.’ [5] The Court of Appeal went
on to find that the context and personal circumstances of McNally, including
self-harm and confusion over her gender identity and sexuality, demonstrated
‘features of mitigation.’[6] This led the Court of
Appeal to sentence McNally to ‘a sentence of nine months in a young offender
institution, suspended for a period of two years, together with a suspended
sentence supervision order also extending for two years.’[7] The rationale for this was
that although, the custody threshold had been exceeded, McNally had served just
under three months of a custodial sentence imposed by the Crown Court. The
Court of Appeal explained that the new sentence would allow McNally ‘to receive
the help that she so clearly needs.’[8]
Deception
and gender identity
In cases where a transgender
defendant has deceived a complainant as to their gender identity, a clear
understanding of gender identity and gender dysphoria is needed. Gender
dysphoria is ‘a condition where a person experiences discomfort or distress
because there's a mismatch between their biological sex and gender identity.’[9] The key question, in
sexual offence cases where a transgender defendant has deceived a complainant
as to their gender, is: how can one accuse a transgender defendant of being
deceptive in a case where they have merely portrayed the gender identity that
they believe is their true gender identity?
Article
8 ECHR
The key right engaged in
these cases is article 8 ECHR.[10] Sharpe argues that
transgender people should not have to reveal their gender history in order to
engage in consensual sexual activity. Consequently, it could be argued that to
convict a transgender person of a sexual offence because they did not reveal
their gender history could breach their article 8 ECHR rights.[11] Sharpe explains that
coupling transgenderism with impersonation, and therefore fraud is ‘to
misunderstand the phenomenon of transgender and its ontology. It is also to
overlook the fact that the state recognises "gender dysphoria",
provides state funded medical treatment for this "condition" as well
as a mechanism for legal recognition of gender identity.’ [12]
The conclusion to draw from
this is that barristers must be able to question transgender defendants in a
way which gets to the root of the defendant’s gender identity and any deception
that took place in the case. In order for a transgender defendant to be
convicted due to their deception of a complainant, the jury must be convinced
that the defendant’s deception vitiated the complainant’s consent by removing
the complainant’s ability to decide whether or not to engage in sexual activity
with a person of the gender of their choice.
[1] R v
McNally [2013] EWCA Crim 1051 [13]
[2] Ibid [27]
[3] Ibid [26]
[4] Ibid
[5] Ibid [51]
[6] Ibid [51]
[7] Ibid [52]
[8] Ibid [52]
[9] ‘Gender Dysphoria’ http://www.nhs.uk/conditions/gender-dysphoria/Pages/Introduction.aspx
(last visited 04/01/17)
[10] European Convention of
Human Rights article 8
[11] Sharpe ‘Criminalising
sexual intimacy: transgender defendants and the legal construction of
non-consent’ (2014) CLR
[12] Ibid p5