CHRIS WILSON: CONVICTED BECAUSE OF HIS CLOTHES.

 Chris Wilson 

The case of Chris Wilson is by no means the first case in which a ‘gender variant born female bodied’ person has been convicted of an offence related to having ‘consensual’ sex with another younger woman. This week has also seen the jailing for the excessive period  3 years of goth Justine McNally who had been accepted by a 16 year old girl as her boyfriend. When confronted McNally said she wanted to have a 'sex change' to continue the relationship. McNally ended up pleading guilty to 6 counts of sexual assault. 

Last year we saw the conviction and jailing for 30 months of the inadequate and lonely 19 year old Gemma Barker for sexual assault (and a comparatively derisory sentence of 3 months for an unrelated fraud). At one point Gemma was pretending to be 3 different boys in order to have relationships with girlfriends. The assaults ‘included kissing, cuddling and sexual touching’, no penetration took place. 

Twenty two years ago, as we were founding Press For Change we heard of the appalling conviction in a similar case which received a great deal of publicity at the time. It illustrates that the values of the type of canteen culture found in policing permeate through society and the criminal justice system at the behest of our tabloid press;

‘The most bizarre case ever heard in a British Court’ as the Sun put it, has resulted in an 18 year old woman being sentenced to six years imprisonment for having consenting sex with two other women. Jennifer Saunders (no not that one) was alleged to have posed as a man, Jimmy, throughout a five month affair with a 17 year old. She was also accused of taking the virginity of another 17 year old. It was claimed in court that the girlfriends had no idea that Saunders was not a boy. Saunders made love using a dildo, and kept her chest covered because she had a boil, it was alleged. Saunders was sentenced for six years for indecent assault and Judge Jonathan Crabtree said he suspected the victims would "rather have been raped by some young man . . . . you have called into question their whole sexual identity "A bizarre case indeed not least because of the extraordinary sentence. In his summing up the judge completely ignored the consenting nature of all the acts and instead focused on the psychic violation the girls had suffered. "For a long time vicious and unthinking people are likely to jeer at these unhappy girls as a result of the misery you have caused them by your evil behaviour". Jennifer Saunders was particularly dangerous not only because she posed as a man, but because she seemed to keep it up for 5 months, and withheld her true sexual identity. (Pink Paper, 196, 12 Oct 1991)

You can find several online confessions of confused young people doing exactly the same thing that Jimmy Saunders, Gemma Barker, Justine McNally and Chris Wilson did.

The comment by the judge in the Saunder’s case that the young women would “rather have been raped by some young man” would now probably be considered beyond belief, but apparently the assumption that consent cannot have effectively been given in these cases is still not beyond such beliefs. 

WILSON’S CRIMES

Wilson, who committed his offences in Scotland, has been convicted of the offence of obtaining ‘sexual intimacy by fraud’. Wilson kissed and cuddled with one girl, and apparently used some sort of prosthetic phallus during sexual activity with a second girl. 
These cases have always bothered me. 

Frequently the complaint is not instigated by the young women concerned but by their parents. It appears the young women only agree to go forward with the complaint because they are frightened of their parents thinking they might be lesbian (and worse, beating them for being lesbian). 

However, what is really strange about the Wilson case is, as I will later discuss, is that Wilson appears to have been charged with a non-existent criminal offence.

To a large extent the following discussion is about that. Sexual offences in Scotland are covered by the legislation contained in the 2009 Sexual Offences Act.  The 2009 Act in Scotland is somewhat different from the English Sexual offences Act 2003. However, the fundamentals are the same. The Scottish Act has very similar definitions of rape and sexual assault in that they occurs when a person recklessly or with intention does one of the prohibited acts, which in rape means the penetration of the vagina, anus or mouth of another person with a penis. The English Act does not include the word ‘recklessly’ but there is a long history in English case law in which it has been held that recklessness as to consequence of an act is able, in some circumstances, to be the same as having the intention to do the act. 

Interestingly, the Scottish Act goes further than the English Act, probably because of the benefit of  being drafted after the Gender Recognition Act 2004 came into force,  in  that it makes it clear that rape of the neo-vagina is possible, and it can be done by a neo-phallus.  In English case law, it has been held possible to have the neo-vagina raped, but there is nothing as yet to show that rape can be committed with a neo-phallus.

THERE WAS NO RAPE, BUT WAS THERE CONSENT?

However, what we all were clear on here is that Wilson’s was not an offence of rape, there was no penis – old or new -  involved in the sexual acts that took place. The alternative charges, under the 2009 Act therefore could have been under s.2; sexual assault by penetration, or s.3; sexual assault, or s.4 sexual coercion. These are however subject to there being a lack of consent and consent is defined in the Act in ss. 12 and 13.

Under s.12, “consent” is said to mean ‘free agreement (and related expressions are to be construed accordingly)’. Consensual sex, prima facie, cannot lead to a charge of assault or rape, unless that consent can be held to have not been true consent, i.e. without free agreement.  S.13 of the 2009 Act expands on this to outline circumstances in which conduct takes place and the consent given will be regarded as not having been freely given. Only s. 13(d) has any possible relevance to the Wilson case. Section (d) states that consent is presumed not to have been given when the victim agrees or submits to the sexual activity because they are mistaken, as a result of deception by A, as to the nature or purpose of the conduct.

The two young women in the Wilson case consented to taking part in the sexual activity. In the first case, apparently the ‘sex’ went no further than kisses and cuddles. In the case of the second ‘girlfriend’ it seems it did involve some sort of penetration and she was slightly under age at the time. However though when a girl is under 16, although consent is held not to have been freely given and sex is therefore assault or rape, it is rarely of concern to us. As long, there is no abuse of a position of trust, or great difference in age  AND if the parties are both consenting, as a society we all turn a blind eye to youngsters of 15 having sexual relationships – for heaven’s sake we were all young once, and many of us did the same. This point is discussed much more extensively in Daniel Donaldson's blog. 

More to the point though, the girls consented to this activity with the person they knew as Chris. If Chris had been a biological male at birth, these charges would not have been brought. They have only been brought to the court because Chris was born female bodied. 

THERE BUT FOR THE GRACE OF GOD, GO YOU AND I

Hey, but let’s stop there for a moment, I and so were many of my friends were also born female bodied. Most of us now have Gender Recognition certificates making us male for all legal purposes, or at least that was what we thought. Interestingly - and very ironically - the Equality Act 2010 provisions to allow single sex services to discriminate against any trans person, whether or not they have a Gender Recognition certificate, has already put the knockers on that myth. 

So if I or any of my mates,  had persuaded a young woman to have some sort of sexual activity without telling her that we were actually a trans man, could result in us facing charges of sexual assault. According to the Wilson case, that is exactly what could happen. The issue is not what my gender is, but whether I tell any potential partner, male or female, what I have or do not have between my legs, before we even think of kissing. 

If we don't, even though we are now supposedly men for all legal purposes, the same claim could be made;  that the complainant would not have consented to the activity if they had been informed in advance that we were trans. Therefore by not informing them, any of us could have effectively committed a fraud to obtain the person’s ‘mistaken’ consent to the sexual activity. 

In the Wilson case, as in all of the other documented cases where young women are the ‘victims’ of sexual assault by ‘gender variant born female bodied persons’ (in short, trans men), the women always admit that they consented to the sexual activity that took place. There is no doubt that the 2 young women in the Wilson case both consented to what happened. There was no evidence of coercion beyond the normal sort of coercion that takes place between loving sexual partners. Technically the second young woman did not have the capacity to make that choice – but hold on what was the choice she was making. If she truly did not know that Chris was born female, it therefore seemed she felt old enough and capable enough of giving consent to the risk of pregnancy
Clearly to have a conviction, the jury/judge must have relied on section s.13(d) of the 2009 Act;  that is the consent was mistaken because Wilson deceived the women as to the nature or purpose of the relevant act. That seems very strange when the nature and purpose of the act is much the same regardless of the gender the of the person you do it with. 

WHAT IS MEANT BY MISTAKE?

Unfortunately, neither the explanatory notes of the legislation nor case law provide us with much guidance as to what mistake there must be to eliminate consent. 

in R v Jheeta,[2007] the defendant (D) was convicted on several counts of rape and procuring sexual intercourse by false pretences in addition to blackmail. D went through an elaborate ruse with his girlfriend. He sent her malicious messages as if they were from a third party. She would be distressed and he would comfort her, leading on several occasions to sexual intercourse. When she got really worried and wanted to go to the police, D said he would go. He then he sent her various texts as if he was a third party police officer. Meanwhile the malicious messages did not stop, so then D, again as the fictitious policeman, sent a text offered her a protection service which would keep her home under surveillance for a fee of £1,000 pa. She gave D the £1000 believing he would take it to the police to pay for the protection service.  During this period she had several times tried to end her relationship with D but always came back to it because of the on-going problem of the malicious texts.

Now think about the victim’s position in Jheeta. Whilst her consent may not have initially been as freely given without the malicious texts, she did ultimately give it freely in relation to the intercourse that took place, and she was certainly not in any way mistaken as to the nature and purpose of the sexual act. The court consequently faced a problem with this. The Appeal judges took the view however, that D’s 
‘actions deprived the complainant of her freedom to choose whether or not to have intercourse with him’. 

However, the Appeal court did agree that the trial court judge had been correct when he held that 
(D)’s behaviour, unpleasant though it was, as something of a "juvenile plot", and also acknowledged that the incidents of rape had to be considered in the context of an on-going sexual relationship which, at least in part on the basis of plea, was consensual.(Jheeta 2007, para 30).

The problem with consent is that its formal requirement by legislation, prima facie, makes all sexual activity both amoral and illegal unless there is a guarantee of certainty that consent has been given. Thus, there are an awful lot of people who have had drunken sex who could find themselves therefore in trouble one day. In the Student Journal of Law, Jordan Franks explains the difficulties of defining what we mean by ‘mistaken consent’:
Does (consent) mean they agreed, gave in, wanted or permitted the act to happen? None of these are wrong, but this, it appears, is exactly the problem we face. We cannot begin to analyse whether … consent is given under a mistake unless we know what consent means.

I find myself wondering when or at what stage Chris Wilson’s plot moved from being ‘juvenile’ into the intentionally fraudulent and malicious. I also wonder at what point in the activities the young women, had they known his gender history, would have wanted it to stop, Personally, like most trans men, I have found disclosure to pose no problem in the development and forming of sexual relationships. 

The REAL problem for Chris and the others in these cases was that they were isolated and not in touch with the trans community, so did not have the benefit of people like me telling them to spill the beans because it would probably just get the young women into bed even more quickly.

DISCLOSURE AND THE TRANS PERSON

Of course, there is no law requiring a trans person to reveal their gender history to their sexual partner.

Well that is not quite true. An oft unknown aspect of the Gender Recognition Act 2004 is contained in Schedule 4, Part 1 , section 4 which inserts a new section (h) in the relevant English law; the Matrimonial Causes Act 1973, Part 1, section 12, which reads:
(h) that the respondent is a person whose gender at the time of the marriage had become the acquired gender under the Gender Recognition Act 2004

Initially that looks terrifyingly as if all trans people after they have contracted a lawful marriage in their new legal gender can find their marriage being voided. Actually, it isn’t that bad because there are controls in place in s.13 of the 1973 Act, which provides ‘Bars to relief where marriage is voidable’, i.e. reasons why a court would not void the marriage even if the provisions of s.12 existed. 

s.13(1) states that: ‘The court shall not … grant a decree of nullity on the ground that a marriage is voidable if the respondent satisfies the court— 
(a)that the petitioner, with knowledge that it was open to him to have the marriage avoided, so conducted himself in relation to the respondent as to lead the respondent reasonably to believe that he would not seek to do so; and (b)… it would be unjust to the respondent to grant the decree.

i.e. if a person knew they were marrying a trans person with a Gender Recognition certificate but went ahead anyway, the court would consider it unjust if they later sought to have the marriage voided. 

Secondly, s. 13(2) states the court will only void a marriage, if a person did NOT KNOW their spouse was trans, if that person instituted proceedings: ‘s.13(2)(a)within the period of three years from the date of the marriage’, or if the applicant had suffered from ‘s.13(4)(a) a mental disorder’ during the relevant period, and the court thought ‘s.13 (4)(b) it would be just to grant leave for the institution of (annulment) proceedings.’ s.13(3) makes it quite clear that the court will only provide relief if ‘it is satisfied that the petitioner was at the time of the marriage ignorant of the facts alleged’, i.e. they must not have known the person was trans when they got married. 

Put simply, if a trans person does not tell a prospective spouse, they have a window of 3 years in which they must not be found out, because if they are they may well find their marriage being voided if the couple separates. Settlement on divorce or annulment is now very similar in English Law, so the only real advantage to getting one’s marriage to a trans person voided would be that a vengeful spouse could probably doubly punish the trans person by having their character trounced in the national newspapers.

At the time of developing the Gender Recognition Act 2004 the stakeholder group did extensively discuss these provisions. In Scotland, there is no concept of marriage annulment – a marriage might be considered void, i.e. as if it never took place, but that would be an equitable decision for a court to make. But the courts in Scotland will only end an existing marriage through divorce. Even non-consummation is not a ground for annulment, merely a ground for divorce. It has not as such been tested, but one can imagine that if a trans person did not tell a prospective marriage partner about their gender history, the courts would similarly only make it a ground for divorce. 

As far as the English, Welsh and Northern Irish provision, after long discussions we felt that as marriage is a commitment for life, then non-disclosure had to really be on a par with a prospective spouse’s failure to say they were pregnant by another person, or that they wilfully refused to consummate the marriage. It was not an easy decision. I cannot imagine any trans person wishing to commit to marrying a person without knowing that their prospective spouse would accept their gender history. However that rests on my romantic assumption that there is such a thing as true love.  

However, that does leave us in the position that in Scotland there is no provision anywhere in the law which might require a trans person to disclose their gender history.

THE OFFENCE OF SEXUAL INTIMACY?

Secondly, another aspect of the Wilson case is the very strange charge: “obtaining ‘sexual intimacy by fraud’”. The Scottish Sexual offences Act 2009 dictates the possible offences; of rape, sexual assault or sexual coercion. There is no mention in the Act of an offence of ‘sexual intimacy’. So how on earth has someone concocted this peculiar form of words. If the offence is one in which consent is the key issue, then the charge should have related directly to those offences contained in the 2009 Act. 

Maybe that is only a technicality, but if we can only manage to convict 1% of born male rapists (see here), it is a technicality which could have been used in an appeal, except of course that Chris Wilson has pled guilty to this bizarre offence and therefore has little right of appeal. 

MISTAKE OR COERCION

What is meant by mistake in these cases is a real and serious issue. Mistake as to the identity or some other feature of a sexual partner is sometimes referred to as coercion. That is by telling some lie, essentially defrauding the victim as to the real situation they are consenting to have sex in, the victim’s consent to sex has been coerced from them.

For many, this is an easier way to comprehend the offences that have taken place. Bit referring back to the question posed as to whether consent to a sexual act means in fact a person has agreed to it, given in, wanted it or permitted it – then coercion can seem semantically very close to the notion of ‘giving in’. There are a lot of people who have sex simply to stop the irritating persistence of their partner. Would we consider that to be coercion, probably not , because they are not mistaken as to the nature of the act – they are agreeing to have sex with their partner, and they know what it will entail.

I say that but we all know that is quite far from the truth in many cases. There are a lot of people who do not want to have sex but ‘agree’ to it  - have they really consented? And afterwards could they claim that they were raped? 

Do we differentiate successfully enough between the “oh, for heaven’s sake, get on with it” because sleep will come much quicker if they stop arguing from the “just do it” because the alternative will be a fist in the face? Probably not.

And counter to that, there are people who do want to have sex, who are truly consenting, but under the false misapprehension of some feature of the other person.

One close friend told us of the brilliant interior designer she had met, and gone to bed with. The more she said the more I was convinced that this was a case of gross exaggeration I suggested that perhaps 'Ken' was nothing more than a painter and decorator and unemployed at that. She was furious with me at the time, but 2 months later tearfully came to tell us that that was indeed the case. It never occurred to us or her that she should have pursued him through the courts for the offence of rape - that is the offence of penetration obtained by mistaken consent. I suspect the police response would have been 'these things happen' .

Let's face it, many of us have exaggerated or told not quite the truth in order to get closer to someone, many of us have been victims of exaggeration or simple plain lies. What of the guys who stuff a sock in their pants when they go out for the night? Could they  find their implied claim to have a large todger result in their imprisonment when the girl sees the truth of their miniature dick? Gay men have advertisers throwing specialised briefs at them, which provide a pocket for a bit of extra padding. Will they face jail when the lad they have bedded discovers he is rather disappointed at the final result?

And how about those girls who stuff tissues down their bra? Is that a fraud which could result in a claim of mistake thus eliminating the consent of a lad. The lad could claim he had been sexually assaulted by her, because he would not have had sex with her if she had taken off her top and he had seen how small her breasts really were.

If convictions such as this one are to stand, then there are a lot of people (not just trans people) who need to think very carefully about what they imply before they persuade someone to consent to a kiss and cuddle, never mind anything more strenuous than that.

The truth is the law on mistake is in these cases being judged as a moral issue rather than a criminal concern. 

FOLK DEVILS & DAILY MAIL PANIC

Have Saunders, Barker, McNally and Wilson all been convicted not because of what they did but because of who they are? 

Criminalisation and labelling is a process that according to that great, recently deceased sociologist, Stan Cohen leads to the creation of Folk Devils and a consequent moral panic. We know this process is not limited to any one particular individual or group of people, rather it creates many victims of a judicial system which still judges individuals in the moral terms of the judge (and in these cases the boorish bullying fathers of the victims) rather than the remainder of society.  The system has not addressed any real misdemeanour. If the girls had known of Chris’s history they would have almost certainly still been prepared to have sex with him. Is it not really the case that Chris’s conviction has turned upon the Daily Mail assessment of the fraudulent lives of all trans people. 

I am very concerned. When the Criminal Justice system gets it so badly wrong it is not just the Chris’s of this world who suffer, it is all of us who are different, and who are afraid of what the consequences of what that difference may bring. And that really is down to the Daily Mail and all the other similar vacuous hysterics in the press who will do anything for a headline.