"It should not come as a surprise if many more individuals practicing non-traditional sexualities find themselves at the hard edge of the law"
07 June 2016 12:00 AM

Our rape laws discriminate against trans people

07 June 2016

By Luke Gittos

There's a growing discomfort with the way the law, particularly around sexual consent, treats trans people. And there's good reason for that. As things stand, a trans person who does not announce their gender history to a partner before intercourse can be accused of rape.

The most recent case of this kind was that of Gayle Newland, who was convicted of rape for misleading her victim about her gender history, but the apparent bias against trans people in the justice system first came to public attention following a 2013 court of appeal case called R v McNally.

McNally was a teenager when she formed an online relationship with a girl, while she pretended to be a boy called Scott. She would later tell the court that she felt "more comfortable" as Scott and did not think of herself as a woman. The couple communicated over the internet for three and a half years. They discussed getting married and having children. All the time, McNallly's victim thought she was talking to a man.They progressed to having phone sex, during which Scott would talk about what he wanted to do with his penis. Both McNally and her victim had been teenagers throughout. McNally then travelled to London so the two could meet. McNally travelled to see the victim four times in all, during which time they had sexual contact.

During the final visit, the victim's mother challenged McNally about being a girl. McNally confirmed her suspicions. The victim was "devastated", but the two continued to have contact. It was only after the mother of the complainant called McNally's school that the police got involved. In December 2012, McNally pleaded guilty to six counts of assault by penetration and was sentenced to three years detention. The sentence was later varied by the Court of Appeal to nine months detention suspended for two years.

McNally was prosecuted under the 2003 Sexual Offences Act. Section 2 of that Act makes it an offence where a defendant intentionally penetrates the vagina of a person with a part of their body (or anything else), where the penetration is sexual, where the other person does not consent and where the defendant does not reasonably believe that the other person consents. Section 74 of the Act gives the definition of consent. It reads: "A person consents for the purposes of this Act if he agrees by choice and has the freedom and capacity to make that choice".

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