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View Diary: Jailed for failure to disclose trans status (42 comments)

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  •  No such offence (4+ / 0-)

    "Statutory rape" is not an offence in either Scotland or England (and Wales). They would be charged with sex with a minor or one of several others like this.

    The age of consent in both jurisdictions is 16 however this can be flexible. If, for example, one were just 17 and the other close to their 16th birthday and both give clear consent; it is unlikely that either the Procurator Fiscal (Scotland) or the Crown Prosecution Service would pursue the case. On the other hand if one were 17 and the other 22 but their teacher, a crime based on abuse of power might be prosecuted.

    Wilson could have applied for an amended birth certificate and new passport (assuming post op) showing their re-assigned gender.

    "Who stood against President Obama in 2012?" - The trivia question nobody can answer.

    by Lib Dem FoP on Sat Apr 06, 2013 at 11:14:28 AM PDT

    [ Parent ]

    •  assuming post op is a big assumption actually. (4+ / 0-)

      Many trans people do not have surgery for many reasons.

      And we sail and we sail and we never see land, just the rum in the bottle and a pipe in my hand...

      by Mortifyd on Sat Apr 06, 2013 at 11:53:54 AM PDT

      [ Parent ]

      •  Apologies (0+ / 0-)

        The wording in the diary led me to that assumption and even the link gives a fairly strong suggestion in:

        Wilson, who said he was 17, started a relationship with the girl and they eventually had sex.
        However this is immediately followed by a clarification:
        His defense layer Shelagh McCall said her client is transgender, identified as a man from a young age, and is hoping to undergo gender reassignment therapy.
        The diary also fails to establish that Gemma Barker was/is transgender. Indeed the comments from the psychologist in this Daily Mirror piece suggests otherwise. Note also that those charges resulted from complaints of sexual assault from girls who still believed Barker to be male up to the time of a search at the police station after she had been arrested.  So that arrest would seem to definitely not be a result of discrimination against transsexuals and rather muddies the waters.

        To be honest, the analysis that the Wilson case is rather more about the age of the girls rather than any consideration of transsexuality seems to hold true. The official position that they would not guarantee gender identity as a reason for not prosecuting seems to me to be valid, especially if you look at the effects the Barker case had on its victims (even if you strip out the lurid reporting from the "red tops")

        "Who stood against President Obama in 2012?" - The trivia question nobody can answer.

        by Lib Dem FoP on Sat Apr 06, 2013 at 01:59:07 PM PDT

        [ Parent ]

        •  Unfortunately the precedent will be even (3+ / 0-)
          Recommended by:
          rserven, Mortifyd, Cassandra Waites

          further set so what do you think will happen the next time someone comes into the police station and wants to file a complaint solely based on "trans panic/deception"?  Do you really think an ambitious prosecutor won't take the case even if the motive seems to be simple revenge?

          You have watched Faux News, now lose 2d10 SAN.

          by Throw The Bums Out on Sat Apr 06, 2013 at 02:29:20 PM PDT

          [ Parent ]

          •  No (0+ / 0-)

            Remember in neither country are these elected posts and frankly neither case sets the precedent that is posited in the diary.

            In the case of England and Wales, the CPS guidelines (.pdf) would be breached if a complaint you suggest were considered solely on the sexual identity of the defendant.

            2.4 Prosecutors must be fair, independent and objective. They
            must not let any personal views about the
            ethnic or national
            origin, gender, disability, age, religion or belief, political views,
            sexual orientation, or gender identity of the suspect, victim or
            any witness influence their decisions
            . Neither must prosecutors
            be affected by improper or undue pressure from any source.
            Prosecutors must always act in the interests of justice and not
            solely for the purpose of obtaining a conviction.

            "Who stood against President Obama in 2012?" - The trivia question nobody can answer.

            by Lib Dem FoP on Sat Apr 06, 2013 at 02:46:35 PM PDT

            [ Parent ]

        •  I did not seek to establish that Barker... (3+ / 0-)

          ...is trans because there was no evidence that she is.  The only reason that case was mentioned was that it was the only case where the same charge was made in recent memory.

          •  Quite difficult to establish your point (0+ / 0-)

            For a start the Israeli case probably involved the same law as a hangover of legislation from Mandate Palestine - many ex-colonies or possessions retain old British laws from pre-independence.

            Both the British cases would seem to share elements of both deceit about sexuality and, much more serious, deceit about their age to a minor. I presume that you are not arguing these were victimless crimes and that they should not have been punished for what were in effect sexual assaults?

            Now again I presume you are not arguing that that particular combination of circumstances is  common (?). Despite two cases in about a year (and a third slightly different case I note below), surely these instances are so rare as to be almost unique? In that case, it is perhaps not surprising that prosecutions were brought under a little used law.

            Let's examine some variations on these cases to go into why the CPS/COPF decided to use those laws.

            Let's suppose instead of being a biological woman, the older person had been a man of the same age. Here prosecutions would have been quite simple as they would fall under the Sexual Offences Act 2003 (Here is where the confusion may have arisen over the age of consent. While it remains at 16, this Act makes offences against those under 13 different and more serious carrying sentences of up to life imprisonment).

            The relevant section here would likely be 9, "Sexual Activity with a Child" which carries a maximum sentence of 14 years. In that section, all the instances involve penetration and, without going into the complete details of the two cases, that might well have been difficult to prove. The CPS would also have had the possibility of a rape charge under Section 1 which would carry a possible life sentence but that specifically requires penile penetration. So if these cases had involved a biologically male 22 year old transgender person presenting himself as a 17 year woman to a boy of just under 16, either or both of these sections might have applied.

            The circumstances of the two cases under discussion were presumably so rare that specific mention in the 2003 Act was not made (and quite likely not even conceived of)  The CPS/COPF likely looked at still extant laws which might cover the circumstances (note I am unclear which law these two were prosecuted under but it was probably pre-1945).  

            There is an argument the CPS/COPF should have used Section 3, "Sexual Assault" of the 2003 Act and that has apparently been used recently in a third case involving a young woman engaging in sexual activity with another but this time the repeated use of a "sex toy" clearly established penetration:

            She and her victim started their relationship when aged 12 and 13 after meeting through an online videogame.
            During their three-and-a-half-year time together the girls 'spoke about what they wanted to do to each other' sexually, said Mr Markham.  
            'Scott (McNally) spoke about what he wanted to do with his d***'.
            They eventually met in March 2011, when McNally came to visit the girl in north London, staying with a friend of the family.  
            They had talked about having sex during online webchats on MSN and on video calls, and the relationship turned physical on the first visit.
            The sentence in that case was 42 months - likely to reflect the length of time spent in the deceit and the repeated nature of the assault even though both were of similar ages and over 16.

            What all 3 of the British cases share is the element of a girl giving consent to sexual activities with another person purporting to be male but who was genitally female. Are you seriously arguing that the consent, falsely obtained, was valid?

            "Who stood against President Obama in 2012?" - The trivia question nobody can answer.

            by Lib Dem FoP on Sat Apr 06, 2013 at 09:11:49 PM PDT

            [ Parent ]

            •  You continually are determined to... (0+ / 0-)

              ...paint me as offering "an argument".

              Is it not enough that I present a news story as news?  I'd like you to locate an iota of text where I claim that Mr. Wilson acted appropriately.

              The story I reported on is that Scottish Transpeople fear that this law will be used against them whenever they have a relationship.  Why do you insist on going beyond that?

              What agenda do you have?

              •  Because it's nonsense (1+ / 0-)
                Recommended by:
                rserven

                The diary title and the linked article falsely represent the situation. They were NOT jailed

                simply for non-disclosure of their gender reassignment status to sexual partners
                but for sexual relations with a minor and falsely representing their age as an aggravating factor - which I will agree you allude to in the body of the diary.

                I have pointed out that there is a third case of a similar set of activities in which the circumstances described in the Sexual Offences Act 2003 were met (because of penetration by a dildo) and a successful prosecution staged under that.

                Equally, there were two which used the "deceit" prosecution in the absence of a specific provision in the 2003 Act. YES, the (I presume) older law was invoked because both were considered female at birth; had not undertaken any gender re-assignment treatment; had falsely claimed to be male; had started an abusive relationship with under age girls and the Sexual Offences Act 2003 had no specific provision under which they could be prosecuted.

                I have shown that if they had been male or had undergone gender re-assignment treatment (which is free under the NHS) and had misrepresented their age, there would be provisions in the 2003 Act to cover similar actions.

                It's you who have chosen to quote an internet page that claims the deceit law would be used against ALL transsexuals. The argument seems to be a bizarre inversion of the arguments by the intolerant right against the passage of the 2003 Act which mostly concerned the decriminalization of male homosexual acts and equalized the age of consent at 16. They claimed the then Bill would result in hoards of preditory gay men roaming the country in order to have sex with boys.

                You appear to be using the argument that all pre-treatment female to male transsexuals lie their way into underage girls' beds, commit assaults of a sexual nature and they should receive a "get out of jail free" card because of their sexual identity. (Something I am sure you are not but the diary and the article used can be interpreted that way.)

                However you (by quoting the article) then flip it to claim that the deceit law would be used to prosecute all transsexuals rather than that unique subset whose actions are not covered by the 2003 Act. I have shown that in the other recent case, the person involved was prosecuted in exactly the same way as anybody else.

                You appear to ignore or be ignorant of the fact that after 2 years transition (but not necessarily an operation), transsexuals in the UK can apply for a certificate under the 2004 Gender Re-Assignment Act which would mean their receiving a new birth certificate and be treated in law as being that sex. Ironically, had the two you are concerned about got those certificates, they would appear to have a complete defence against any deceit regarding their sexual identity but would then have fallen foul of the 2003 Act. Looking at the CPS Sentencing Guidelines, the sentences handed down to them would seem in line with the lower end of the range available on conviction in a higher court under that Act.

                Frankly what I find really most disturbing is the complete ignoring of the several young girls involved in these two cases. The article and diary seems to deny them any chance of giving proper consent to the activities imposed on them. I really do have to ask what, if any, rights you believe that these had to know about their suitor's age and sexual identity in deciding to consent to sexual activities as the answer in the diary appears to be "none".

                Look, I recognize that transsexuals have many issues to consider when in entering into a relationship and that these will vary according to how far they have transitioned. They are the very subjects that would covered in the gender re-assignment courses run by the NHS and in their clinics for gender dysphoria. There are a number of other, including self-help, organizations who would also give advice on this - some are listed in this NHS leaflet (.pdf)

                The essential word here is "relationship". I really do fail to see how these women's actions could be characterized as them wanting to enter into one but rather them engaging in predatory sexual behaviour with minors simply for their self-gratification.

                My second concern is that by, in my opinion, falsely representing the facts of these two cases; trans people will have unfounded fears; become more isolated; fail to seek advice, support or treatment and not enter into fully considered (by both sides) loving and sexual relationships.

                As for my "agenda", it can best summed up as a broad interpretation of the admonition inscribed over the main entrance on Old Bailey to the Central Criminal Court in London:

                Defend the Children of the Poor & Punish the Wrongdoer"
                 

                "Who stood against President Obama in 2012?" - The trivia question nobody can answer.

                by Lib Dem FoP on Sun Apr 07, 2013 at 09:49:24 AM PDT

                [ Parent ]

                •  You apparently have failed to read any of the... (1+ / 0-)
                  Recommended by:
                  Avilyn

                  ...other commentary here on the age issue.  This Israeli case does not in any way connect with Scotland.

                  You appear to be using the argument that all pre-treatment female to male transsexuals lie their way into underage girls' beds, commit assaults of a sexual nature and they should receive a "get out of jail free" card because of their sexual identity.
                  Bullshit.  I am a 19-years-post-operative transwoman and would demand that you withdraw that comment as uncalled for and vicious.  That statement springs anew from your brain and nowhere else.

                  You keep saying "I have shown".  You have shown nothing.  Scottish transpeople have fears.  I am simply sharing those fears.  If you have an argument with their fears, take it up with them!

                  I assure you I have no ignorance as to the legal situation for transpeople in the UK.

                  Referring to Mr. Wilson as a woman is uncalled for, by the way.

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