UK court ruling: trans people engaging in sex without disclosure may be criminal

Royal_Coat_of_Arms_of_the_United_Kingdom_THE GUERRILLA ANGEL REPORT — I’m still trying to find the handle on this thing, but it appears that an appeals court in the UK has found that a trans person withholding certain facts prior to sex with another person may be charged with committing a criminal act.

In the case in question, a trans man did not inform his partner that he did not have a penis and surprised his partner when he inserted a prosthetic instead. The appeals court said this was not informed consent.

If I’m reading the case documents correctly, this ruling would also be applicable to cis people if one’s partner was expecting a penis and got prosthetic instead.

I don’t know enough about this case to comment further, however this ruling does seem to open a Pandora Box, does it not?

Anyone familiar with this case or UK law, feel free to comment!

Tip of the hat to Barbara Barrett.

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[2013] EWCA Crim 1051

Court document: http://www.bailii.org/ew/cases/EWCA/Crim/2013/1051.html

Commentary about this on Trans Media Watch: https://www.facebook.com/groups/transmediawatch/

More commentary:  Court of Appeal confirms: Stealth trans people having sex are criminals « Complicity.

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Categories: Discrimination, Equality, Civil Rights, Judicial, Courts, Law Enforcement, Police, Transgender, Transsexual, Trans

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17 replies

  1. Strange, how can the other person prove without witnesses that she had been told…? This takes not away that you identify as a man or woman and live, dress, work accordingly, that you should not be forced to talk about it, because this discriminates you in your chosen gender.

  2. Having sex with another person. Doesn’t that demand from a trans-woman or man a certain degree of intimacy that would make a disclosure about unavoidable IF you consider and care for the other person’s sensibility?
    However, in certain circumstances the disclosure might not be necessary. A post-operative woman has been surgically changed enough to have intercourse without it being an obstacle. A trans-man who uses a prosthetic penis is another thing.
    However, making of a (possibly) careless behavior a crime is, in my eyes like leveling it up to a rape. A very frightening prospect!
    The dame who had sex with him was consenting to be with him, isn’t it? If not, then it was rape! But based upon a “difference’?
    Consenting, she was then only put into an awkward situation with something she was not prepared to experience. That can be easily understandable. A prosthetic is not a common thing, but so is a man who has a prosthetic leg. Should he too disclose that he is missing a leg at first when meeting another person for a romantic relation?
    Indeed, in my eye , a careless behavior but NOT a crime!
    Haven’t we been ever in an awkward situation while engaged in a sexual situation? Nobody?
    I have! This coming from a straight man who was at first chocked because I didn’t have a penis and had believed that I was ” a she-male” like he said. What to say about that ? I am lucky that his deception did not lead to an attack due to frustration. That was awkward enough FOR ME and very disturbing to be mistaken for what I was not! What about MY feelings?
    Shouldn’t WE then consider a crime, a person who is engaging in sex with us and not respecting our gender or not caring if we have “the parts”? Why is it that it should have to be US who have to justify of our behavior while the other is not put to blame?
    Whatever this is , making it a crime is a whole lot of another story.
    I am against another “special law” that stinks of discrimination.
    And that,even if this person or another trans person isn’t fully careful and mindful of the other person’s feeling.
    As a transgender woman and an adult, I have been asked by society to PROVE my position. I have done so, what else? Of course, I did! I am a responsible woman and I CARE about the other person I am intimate with. However there are exceptions to all things and those arise when in a special situation where ,for instance a spontaneous behavior in involved. There was no time to stop all things and tell. This would have ruined the moment and there was not immediate need for telling that I went through corrective surgery. What the hell for? The sexual act was possible and was alright for both of us. With a law like that, I would have committed a crime?
    I call this oppression.
    and I don’t care if this involves also cis-gendered people!
    Should I then extend that eventual law to augmented breasts implants too?

  3. This isn’t entirely accurate.
    You claim “surprised his partner when he inserted a prosthetic instead”. Instead, the documents show that the allegation that penetration with a dildo happened was denied by the accused, and the allegation wasn’t pursued any further (See paragraph 8 of the ruling.

    Thus that particular claim is of no relevance to the judgement. The judgement is based purely off the acts of oral sex and “fingering” (digital insertion in legalese).

    See the Complicity post you linked to at the end for further exposition.

    • Thanks for the comment. There were a number of viewpoints on this by those who read the court document, including the ones posted in Complicity. Although I didn’t agree with everything that writer said, I included the link so so readers can decide for themselves.

  4. The main point is made in section 26:
    “Thus while, in a physical sense, the acts of assault by penetration of the vagina are the same whether perpetrated by a male or a female, the sexual nature of the acts is, on any common sense view, different where the complainant is deliberately deceived by a defendant into believing that the latter is a male. Assuming the facts to be proved as alleged, M chose 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 appellant’s deception.”

  5. This is f8ing amazing. First they get gender confused with sex , and now they get sex confused with gender. If there is a crime here it in some ones head only, because they may have gotten their feelings hurt. Ahh, poor baby.

  6. Thanks for the comments everyone!

  7. Welcome back to the Medieval age.

    The earth is flat and the genital is defining, if a person is male or female. And who resists against this is a criminal witch/sorceror and needs to be executed.

  8. Wipeout Transphobia might have more info on this, as they’re a UK based organization, just a thought, unless you already checked with them. :)

  9. Unfortunately Tansphobia is alive and well in the UK as a whole despite legislation that is supposed to ensure equality.

  10. One of the top penile reconstruction surgeons in Canada has examined my Peyronies Disease (scar tissue due to physical damage) gender organ. I have also had a radical prostatectomy (prostate removal due to prostate cancer). This has left my “member” (not my term) a much shrunken appendage. The reconstruction surgeon has offered me 3 options – no reconstruction, insertion of a stiffening implant, an implant along with an air bladder with a manual pump. The last would give me a sort of functional appendage should I want to have intimate relations.

    However, if I choose the implant stiffener (my term), would that be considered a non-natural object? Would I have to advise someone who wished to have intimate relations with me?

    I also am at the start of transgendering MtF. Would this be a problem as well? Have these legal authorities even had the imagination to consider all potential effects of this decision. My experience is that few legal beagles know about risk analysis which requires an ability to be able to see an action from all points of view, not just the mainstream. And as it is/has taken place in a common law jurisdiction based on precedent, a number of persons in countries other than the UK could be affected. It all depends on whether the other person is offended and that is a most difficult answer to identify beyond a reasonable doubt.

  11. I have only just become aware of this, I know I am way behind. I am I hope an equal rights kind of person. I believe everyone has a right to be who they want to be. I also believe in the freedom of choice. I am not transgendered, although at one point in my life I did wonder whether I was. I am a gay female and have experienced prejudice and discrimination. I have also experienced violent attitudes towards my sexuality. I have still held on to the belief that people have a right of choice even if that means they choose to hate me, and after reading the court case I don’t think this as clear cut as an issue of transgender discrimination. I think that what this case is about was the right of choice. The defendant in the case made a choice not to disclose her sexual identity ( whatever that may be) and by not informing the other person involved in this case she took away that girls freedom of choice. Unfortunately by doing so she then entered a quagmire of life’s inequalities, and by representing herself as a transgendered person only after the fact , she has inadvertently set back the causes of transgendered equality to the middle ages. I think if she had identified herself to the girl in question as a girl hoping one day to be a boy this case would never have happened, but as is my way I defend the girl/boy right to choose not to even if I think in this instance she was totally wrong in doing so.

  12. This is what a transgender responded with when asked about deception

    “in my opinion, I would always tell the guy regardless, I want him to have a CHOICE to whether or not he wants to be friends or still want to see me. I believe you treat the guy how you wanna be treated. Like if I was to say date this hot ass guy and later found out he was once a chick, but he failed to be honest with me, I’ll be pissed and hurt. So I always be upfront if the relationship is getting serious or if it is going somewhere.”

    I think out of respect a transgender should disclose, but since it seems that most won’t out of fear of rejection then a law should be in place to protect the other person..thing is I see that they think they are the gender they are but what right does that give them to force that on others?

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