Iām confused. I mean, more than usual. How is the statute worded that this is illegal? Is it because consent depends on gender representation?
What does this mean for non-transitioning transgendered people? They can (and should) present as a gender matching their identity, but must āadmitā to being the biological one at some point?
Hard cases make for bad law
This is such a weird, bizarre case. I recall another one where a woman found out her husband was female after a year of marriage. I donāt know what part of your brain has to shut off to engage in a relationship where you have sex but never actually feel a real penis and not have alarm bells screaming in your head.
Ignoring gender, think of this situation:
Person A agrees to have sex with Person B
Person B, without Person Aās knowledge, swaps for Person C, who Person A does not want to have sex with.
The method for the person not knowing doesnāt really matter ā blindfold, drugs, a hole in the sheet, whatever. Sex is consensual and itās expected that you should agree who youāre having sex with.
If you are deceiving someone to get consent, and donāt believe that they would give you consent were you not deceiving them, then you are certainly running up against sexual assault. But then again, that would clearly be thought of differently if the deception were a man pretending to make more money than he did, or a man who wanting darkness/blindfolding because he had a politically charged tattoo that he didnāt think his partner would approve of.
I think we have to imagine that it is possible to give conditional consent - consent only if certain facts are true (one might imagine giving consent only if someone had really had a vasectomy). Itās nonsense to say that a reasonable person ought to know in general that āyou are the gender I think you areā is always a condition of consent. But if a person is engaging in deceit to fool the other person about something, it lends credibility to the idea that they did know it was important to the other person. This condition would not apply to trans people who are not responsible for how other people gender them and are not deceiving anyone who genders them incorrectly, but seems like it would apply to a case like this if the alleged victimās claims of blindfolding and being unaware are true.
There is also the issue that penetrating someone with an object when they consented to be penetrated by a part of your body would be something Iād usually call sexual assault. And then on the flip side of that weāve got the question of whether a dildo is necessarily not a part of the body of the person wearing it - it could be regarded as a prosthetic.
What a mess.
I donāt see how thatās even vaguely analogous. A person who is female bodies who represents themselves as being male bodied isnāt two different people.
IANAL, but my understanding is that intent is important for most common law jurisdictions. Since the defendant claimed her accuser knew she was female and in a lesbian relationship, sheās implicitly not claiming to be trans. To claim that defense, she would have needed to claim to be trans, not lesbian. Moreover, she did not simply claim to be a man, she actively blindfolded her partner with intent to deceive during sex, which is predatory behavior regardless of the motive.
This is one of those intersectional areas where balancing the rights of individuals gets tricky. However, I donāt think its unreasonable to expect a different standard of disclosure during sexual intimacy than in other areas of social life. A sexual partner has, IMHO, more of a need, right and expectation to know someoneās biological status than anyone else.
Or, indeed, if you were an undercover policeman.
See, again, thatās tricky as hell. The civil suit against the police for intentionally deceiving and traumatizing them makes perfect sense to me. The police department can have acted deplorably, but in general misrepresenting yourself to get someone to sleep with you is a facet of life that maybe weād be better off without but that I donāt think we can criminalize broadly. If someone picks someone else up claiming to be a plumber when they are really a stenographer, I donāt think any of us would think that sounded like a sexual assault. And Iām pretty sure lying about your feelings for someone as part of a sexual encounter is extremely common. Charging people for saying āI love youā before sex when they clearly donāt mean it does not sound like a tenable way to go.
So we get back to this idea of what really makes a difference to people and, more than that, what a reasonable person ought to know really makes a difference to people. And we have a case where there is something that a reasonable person will know really make a difference (your sex) and that at the same time is discriminatory. At some point in the past a woman probably could have charged a man with sexual assault if she didnāt know he was black when she agreed to have sex with him. He might have known that this would matter to her, but itās appalling to think that would constitute an assault.
The standard we should all be going for is continuous and enthusiastic consent. But I feel like if you give continuous and enthusiastic consent, you still do so in a world where you cannot have perfect knowledge of the person you are with. Caveat sexor?
What if the condition is knowing the person is trans? Should a potential partner have a right to make the answer to that question a condition of consent* and, if a trans-person knew it was important to the other person, should they disclose the fact? My very inexpert understanding, which may very well be wrong, is that straight transman or straight transwoman is widely regarded both within and without the trans community as different from cis-male or cis-female.
And yes, what a mess.
*Just to be clear, obviously everyone should have the right to deny consent for any reason or no reason at all. My question is whether a prospective partner is justified in even asking certain questions, like have you ever been a woman or are you a virgin.
I think we have to imagine that all consent is conditional. Of course, the conditions might be the matter of dispute, but Iād say that a personās gender, the part or object involved, etc are all part of a customary understanding that can only be vitiated by explicit agreement.
I guess the analog is more like this - someone says:
My name is Brad Pitt, I am a famous movie star. Have sex with me but keep this blindfold on.
When you find out it is not Brad Pitt well, it is still the same person you were having sex with before, but not the person you agreed to have sex with anyway.
In this case, the person stays the same. Itās only their hardware that was not what is expected.
What about the case when she lays him, after he pretends to be a fighter pilot at the bar, and it turns out heās just a pizza car driver? Does it count as having sex with somebody else than agreed with?
In case anyone didnāt see this a few weeks agoā¦
I suspect youād be hard-pressed to get many people to consider that sexual assault, even though youāre actively deceiving them. Is there not a distinction between deception about peripheral aspects of oneās self that arenāt pertinent to sexual activity and deception about things that effect sexual activity, such as whether youāre penetrating your partner with a body-part or a sex-toy? Ultimately the wider question boils down to whether and what is any of the other personās business. It may or may not be just, but society tends to regard biological status as more relevant to sexual consent than career or past sexual activity.
While the details are salacious, and perhaps more noteworthy because of the similarity to (the also real life case of) Brandon Teena, It should come as a surprise to no one that there is a long history of intercourse being solicited through deception, and that there is a whole body of case law on this topic. One paper I found on the topic is this law journal article by Cleveland-Marshall College of Law professor Patricia Falk. Well worth skimming, if not reading in its entirety.
Iām scratching my head so much itās bleeding.
I thought about posting something about him. But I donāt know anything beyond watching Boys Donāt Cry years ago and skimming his Wiki entry just now.
On the other hand, suppose someone consented to be sexually stimulated with a hand - would it be sexual assault if the hand turned out to be prosthetic, unbeknownst to them? It seems abhorrent and discriminatory to me to say that a personās hand isnāt their hand because itās not the hand they were born with (or they were born without a hand). So then that goes into an unknowable well of intention where we have to psychologically examine the alleged attackerās relationship with her strap on.
Iām sure there is, but Iām also sure that body of case law was created almost entirely at times when transgender people were not considered real members of their gender. Itās reasonable to expect that itās case law that might have to get with the times.
Iām not so sure about the personās gender, and whether thatās a fair thing to include. Iām more sure about objects to be involved, but see above misgivings about objects being part of people.
At any rate, it is unbelievable to me that this is going to trial. How many cases of rape never get to trial because they will just be he said/she said? And now we have a case that is going to trial despite the fact that the entire case rests upon the insistence of the victim that she did not know the alleged attack was a woman, vs. the insistence of the alleged attacker that the victim did know she was a woman? If this is part of a new trend towards prosecuting more sexual assault cases then I applaud that trend. But I think we can all be forgiven for thinking this case is laced with homophobia.
