Dude Looks Like a Lady: Gender Deception, Consent and Ethics
| Date | 01 August 2019 |
| DOI | 10.1177/0022018319834373 |
| Author | Victoria Brooks,Jack Clayton Thompson |
| Published date | 01 August 2019 |
| Subject Matter | Articles |
Article
Dude Looks Like a Lady: Gender
Deception, Consent and Ethics
Victoria Brooks
University of Westminster, UK
Jack Clayton Thompson
University of Brighton, UK
Abstract
Finding the answer to whether consent is present within a sexual encounter has become
increasingly difficult for the courts. We argue that this is due to the focus placed on entrenching
gender binaries, a conservative sexual ethic and clear offender/victim roles. It should be the
case that the court’s task is to find the truth of the encounter in coming to a judgment as to the
ethical balance, rather than judging the parties’ conformity to cisnormative and hetero-
normative roles. This endeavour is obscured by the court’s need to exclude ‘sex talk’, or
otherwise testimony as to the messy reality of the encounter, in favour of asserting gender
identity and a procreative understanding of sex. We are, therefore, left in the position where
the required information necessary for valid consent is obscured by the courts. We draw on an
analysis of cases involving issues relating to consent to sex in order to argue for a judicial
approach that is informed by a more flexible understanding of sexual autonomy.
Keywords
Gender, consent, sexual violence, transgender, sexual ethics, deception
Introduction
When sexual offences come to trial, little of the actual sex is discussed, much less understood. The law,
whether it be judges, the jury, or those presenting the case for the complainant and the defendant, is
resistant to talking explicitly about bodies. Yet beneath this dry and distanced language of the law, there
are a multiplicity of implicit conversations about bodies, about lust, in the form of judgments. These
judgments are about the suitability of any given body to fit the ‘heteronormative’ and arguably pro-
creative agenda of the law. It could be argued that the law is progressive, which allows gender recog-
nition, and preserves the requirement of sexual autonomy at the heart of the consent framework under the
Sexual Offences Act 2003. It is clear through recent transphobic judgments made in cases such as
Corresponding author:
Victoria Brooks, School of Law, University of Westminster, 4–12 Little Titchfield St, Fitzrovia, London W1W 7BY, UK.
E-mail: v.brooks@westminster.ac.uk
The Journal of Criminal Law
2019, Vol. 83(4) 258–271
ªThe Author(s) 2019
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DOI: 10.1177/0022018319834373
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