Having served 11 months of an eight-year prison sentence for sexual offences, Gayle Newland was found guilty in a second trial at Manchester Crown Court of three counts of assault by penetration after having sex with a partner who believed her to be a man.
Her original conviction was set aside by the Court of Appeal because they found it “unsafe” due to the trial judge’s summing up. Her conviction is the latest in a spate of recent prosecutions brought against young LGBTQ people for gender identity fraud: Gemma Barker in 2012; Justine McNally in 2013; Chris Wilson in 2013; Gayle Newland in 2015; Kyran Lee (Mason), in 2015; and Jason Staines in 2016. All of these resulted in conviction, sex offender registration and, typically, a custodial sentence.
In my view, prosecutions of this kind should not be started.
My reasons include that it is an overreach of criminal law (the criminalisation of non-coercive, desire-led intimacy is a step too far), and concern over legal inconsistency – contrast the prosecution of gender non-conforming people for sexual fraud with the fact that deceptions as to wealth, social status, drug use, criminal convictions, religious belief and/or ethnic status produce no legal consequences in the UK. Then there is discrimination: “gender history” is not only singled out for special legal attention, but it is the gender histories of young LGBTQ people, rather than people in general that appears to exhaust state interest in historical facts about gender.
And in the case of trans defendants, concern over the ease with which non-consent has been established despite the lack of a gap between a complainant’s belief about a lover’s gender identity and their actual gender identity.
The ‘privilege of unknowing’
I want to focus on Newland because the case allows for a more nuanced discussion of how we might think about consent in such cases. It might be thought that consent was clearly lacking in this deception case because of an obvious deficit between the complainant’s belief and the defendant’s actual gender identity. That is, the complainant believed the defendant to be a man, and she is not. However, and while two juries found the complainant to be ignorant of Newland’s gender identity, we should not necessarily equate “ignorance” with non-consent.
Specifically, I want to raise the possibility that complainant truth might, at least in part, be founded on what queer scholar, Eve Sedgwick, described as the “privilege of unknowing”. This phrase serves to problematise a clear distinction between ignorance and knowledge. Sedgwick is referring to a cultural and psychological process whereby privileged onlookers learn not to see, or otherwise sense, queer difference. In other words, complainant truth might not easily be disentangled from forms of “learned unknowing” that operate within a hetero and cisnormative society (one which privileges the majority of people who conform to their birth gender and to normative gender expectations).
Think of the scene in the Crying Game where the main protagonist Fergus visits a queer bar, the Metro. As the camera pans the room, it is obvious that practically everybody in the bar is LGBTQ. Yet, Fergus fails to see what is plainly in view. He is not looking for it, not expecting it, for him it is simply not there. And, of course, privileged unknowingness can affect all the senses. In the context of sexual intimacy (the enmeshing of bodies), the difference between ignorance and knowledge might be thought of as one between imagining a lover’s body and an experience of it. That is, we might think of ignorance as disavowal, a repudiation of the senses.
In the Newland case, the complainant admitted having sex with Newland on at least ten occasions and spending more than 100 hours in her company, sometimes at the complainant’s apartment, sometimes at a local hotel. Her ignorance regarding Newland’s gender identity was apparently due to a blindfold worn on all occasions at Newland’s request (Newland, who identifies as lesbian, disputed both of these claims). The complainant’s other senses, apparently, also deserted her. Thus her sense of touch proved insensitive to the contours and smooth surface of Newland’s body, and to the prosthetic penis which Newland used, while her sense of hearing proved impervious to Newland’s voice which falls within the female range.
Yet, if we do not see our lover’s face, do we not sense them in other ways? Do we not breath them in, feel their touch, become acquainted with their smell, experience the contours of their body, feel their breath upon our skin, the timbre of their voice? And are we not undone in such moments, irrespective of the evidence before us? Is it right in such circumstances to conclude that consent is absent? If we are to take seriously feminist notions of agency, how can we claim not to have consented to lesbian sex when the presence of a female lover has taken the form of sensory overload?
And if our bodies yield in such encounters (perhaps we are even transported), is it right to disown our desires because we are retrospectively disappointed? Is it appropriate to refuse to acknowledge embodied experiences, apparently at odds with our desires, and the pleasures we derive from them, to refuse to acknowledge information that arrives through our senses, calling us to respond, and to which we do respond?
These are admittedly, difficult and discomforting questions. No doubt, there will be those who prefer not to ask them. Yet, difficult though such conversations may be, they are perhaps where ethics begins, that is, the forging of an ethical relation between cisgender people and the trans and/or queer lovers to whom they are attracted.