Queering Judgment
| DOI | 10.1177/0022018317728828 |
| Date | 01 October 2017 |
| Published date | 01 October 2017 |
| Subject Matter | Articles |
The Journal of Criminal Law
2017, Vol. 81(5) 417–435
Queering Judgment: The Case
ª The Author(s) 2017
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DOI: 10.1177/0022018317728828
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Alex Sharpe
School of Law, Keele University, Keele, Staffordshire, UK
Abstract
This article is a response to a series of recent successful sexual offence prosecutions brought
against transgender and other gender non-conforming people for gender identity fraud, and
specifically to Leveson LJ’s judgment in the Court of Appeal decision of R v McNal y. The decision is
now the leading authority on sexual fraud generally, and gender identity fraud specifically, under
English law. The response will take the form of an academic judgment, in this instance a dissenting
or counter-judgment. The article will (i) present the facts of the case, (ii) provide some detail
regarding the developing jurisprudence of the courts regarding sexual fraud, (iii) preface the
counter-judgment with an explanation of why an exercise in academic judgement-writing is
valuable, (iv) consider a queer approach to law, and detail some queer principles around which the
counter-judgment will be organised and (v) present the counter-judgment, highlighting not only
that McNally could have been decided differently, but that it ought to have been decided differently.
Keywords
consent, fraud, harm, judgment-writing, queer, transgender
Introduction
This article is a response to a series of recent and successful sexual offence prosecutions brought against
transgender and other gender non-conforming people for gender identity fraud in the UK,1 and specif-
ically to Leveson LJ’s judgment in the English Court of Appeal decision of R v McNally.2 The decision
is now the leading authority on sexual fraud generally, and gender identity fraud specifically, under
1. R v Barker 5/3/12 (Unrept, Guildford Crown Court, Judge Moss); R v Wilson 7/3/13 (Unrept, Edinburgh High Court, Lord
Bannatyne); R v McNally [2013] EWCA Crim 1051; R v Newland 15/9/15 (Unrept, Chester Crown Court, Judge Dutton); R v
Lee (Mason) 16/12/15 (Unrept, Lincoln Crown Court, Judge Heath); R v Staines 24/3/16 (Unrept, Bristol Crown Court, Judge
Cotter); R v Newland 29/6/17 (Unrept, Manchester Crown Court, Judge Stockdale). There was also an earlier case (R v Saunders
12/10/91 (Unrept, Doncaster Crown Court, Judge Crabtree). All defendants, except Wilson and Lee (Mason), received custodial
sentences ranging between two and a half and eight years and all were placed on sex offenders registers.
2. Above n 1.
Corresponding author:
Alex Sharpe, School of Law, Keele University, Keele, Staffordshire, ST5 5BG, UK.
E-mail: a.sharpe@keele.ac.uk
418
The Journal of Criminal Law 81(5)
English law. The response will take the form of an academic judgment, in this instance a dissenting or
counter-judgment. The article will proceed as follows. First, it will present the facts of the McNally case.
Second, it will provide some detail regarding the developing jurisprudence of the courts regarding sexual
fraud. This will be kept to a minimum given that the counter-judgment will deal with relevant law at
length. Third, it will preface the counter-judgment with an explanation of why an exercise in academic
judgment-writing is valuable. In this regard, the article will draw significantly on feminist judgment-
writing projects. Fourth, the article will consider a queer approach to law and will detail some queer
principles around which the counter-judgment will be organised, while at the same time highlighting
tensions between queer theory and engagement with law and judgment. Finally, the article will present
the counter-judgment which will suggest McNally was wrongly decided.
The Facts of the Case
The complainant and defendant met online through a social networking game. At this point, McNally,
who used the name ‘Scott Hill’,3 was 13 and the female complainant 12. Over three years later, during
which time they continued their cyber relationship, the parties met in person and on several occasions. At
this stage, McNally was 17 and the complainant 16. On two of these occasions, McNally digitally and
orally penetrated the complainant. Subsequently, the complainant ‘discovered’ McNally’s gender his-
tory and claimed to feel physically sick.4 The defendant was charged with six counts of assault by
penetration,5 convicted and sentenced to three years detention in a young offender institution.6 The
complainant’s consent to sex was found to have been vitiated due to the defendant’s ‘active deception’
regarding her gender identity. That is, McNally had presented as male, while the court found her to be
female. In addition to her male gender performance, the court found active deception to reside in, among
other things, a series of statements she made to the complainant, mainly concerned with what she wanted
to do to the complainant sexually and how she imagined their future together. The court’s finding of
deception presupposes lack of knowledge on the part of the complainant regarding the defendant’s
gender history. This finding that the complainant believed the defendant to be a cisgender man, proved
possible despite the parties spending considerable time together and engaging in penetrative sex on
multiple occasions, and despite the fact that the defendant has breasts, a voice within the female range,
and has not benefited from the masculinising effects of male hormones. It is curious that the Crown
Prosecution Service, the trial judge and the Court of Appeal, all appeared to accept so readily a claim so
apparently antithetical to common sense. These issues, and the Court of Appeal’s interpretation of the
facts, will be considered in detail in the counter-judgment.
The parties in McNally might be described as a cisgender7 female complainant and a transgender
man, respectively. However, there is uncertainty regarding the precise nature of the defendant’s gender
identity, a fact that served to undermine the efforts of McNally’s counsel before the Court of Appeal.
Whether Justine McNally is transgender is perhaps a moot point. She is certainly a gender non-
conforming person. However, there was evidence to suggest that she believed herself to be a transgender
man at the time of sexual intimacy with the complainant, albeit she asserted a female gender identity at
the time of plea and subsequent appeal. It is because of this latter fact that female pronouns will be used
3. Above n. 1 at para. 3.
4. Above n. 1 at para. 10.
5. Section 2 Sexual Offences Act, 2003.
6. On appeal, the sentence was reduced to nine months suspended for two years (Above n. 1 at para. 2).
7. The complainant is also cissexual, that is, a person ‘who ha[s] only ever experienced their subconscious and physical sexes as
being aligned’ (J. Serano, Whipping Girl: A Transsexual Woman on Sexism and the Scapegoating of Femininity (Seal Press:
Berkeley, CA, 2007) 33). The related term cisgender refers to those cissexual people who are comfortable with gender
expectations that are socially constructed to follow from the fact of cissexuality. Some cissexual people, for example, queer
identified people, do not identify as cisgender, and it is cisgender, rather than cissexual, complainant status that is likely to be
the better indicator of whether a gender identity fraud complaint will be made.
Sharpe
419
throughout this article. Nevertheless, the authenticity of McNally’s assertion of a male gender identity,
prior to and at the time of sexual intimacy between the parties, goes to the heart of the case because it is at
this time, and not subsequently, when criminal liability arises.
Sexual Fraud Law
Since the enactment of the Sexual Offences Act 2003, which, informed by feminist advocacy and the
Setting the Boundaries Report, placed greater emphasis on the complainant’s right to sexual autonomy,8
we have witnessed an expansion of the law pertaining to sexual fraud. While this might be viewed as
consistent with the aim of achieving substantive equality for cisgender women, it appears to have had the
opposite effect for transgender and other gender non-conforming defendants. Prior to this legislation,
prosecutions for sexual fraud were essentially limited to two particular types of circumstance, ones long
recognised at common law, namely fraud in the factum and fraud in the inducement. The former refers to
scenarios where the fraud went to the sexual act itself and appears to have been confined to a handful of
cases involving naive young women who were apparently unaware they were engaging in sexual
intercourse due to some false representation made by the defendant9 or who had been deceived into
believing it was a medical procedure.10 The latter referred to the scenario where a male defendant had
sex with a woman through deceiving her into believing he was her husband.11
Prior to 2003, these categories exhausted the possibility of prosecuting sexual offences on the basis of
fraud. Beyond these categories, fraud was considered consistent with consent, a matter going only to
surrounding circumstances or to an attribute of the defendant.12 The legislation placed both these types
of fraud on a statutory footing as conclusive presumptions. Fraud in the factum was expanded to include
fraud as to the ‘purpose’ as well as the ‘nature’ of the sexual act,13 and fraud in the inducement became
uncoupled from its prior gendered and marital restrictions.14 However, and despite some academic
emphasis on the wider...
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