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McNally: After the Sexual Offences Act 2003

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Lesbianism and the Criminal Law

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Abstract

This chapter considers the Sexual Offences Act 2003 in operation. It centres upon a prosecution founded on accusations of fraud: the 2013 appeal judgment in McNally. The defendant was convicted of sexual assault by penetration, on the basis that apparent consent was vitiated by fraud as to gender, and sentenced to three years’ imprisonment. The Court of Appeal considered when and why apparent consent would be vitiated by deception: particularly significant as McNally is not an isolated case.

Before 2003, sexual offences law had been riddled with inequalities; this chapter problematises any assumption that the 2003 Act has finally resolved those issues. In particular, critics writing from feminist and trans perspectives have identified fundamental problems with the way in which sexual consent is understood. These debates are considered, with particular attention to the implications for (absence of) consent between women, and possible approaches to reform are explored.

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Notes

  1. 1.

    The trial and appeal were widely reported in the press (e.g. O’Shea and Phillips 2013; Dixon 2013; Shaw 2013a, b; Greenwood 2013; Daily Mail 2013).

  2. 2.

    The case was reported in a range of media (e.g. BBC News 2012a, b; Rach 2015; Sabey et al. 2012). J subsequently waived her anonymity to give several interviews about her experience (Blake 2012a; Stretch 2012).

  3. 3.

    In her longer article about the case, Sophie Wilkinson (2017) says that the correct spelling is ‘Gail’, with the alternative spelling originating in a court report typo. I have retained the more common spelling, consistent with the wide range of press reports (e.g. Hattenstone 2017; Pidd 2017; Humphries 2015a, b, c, d; Swerling 2017).

  4. 4.

    It is therefore difficult to share the confidence of authors who state, for example, that McNally and Newland ‘are transgender men, or at least considered themselves to be’ (Brooks and Thompson 2019, p. 4).

  5. 5.

    Diane Hamer (1992, pp. 49–50) argued that Saunders marked a ‘discursive shift’, with the dildo discussed but no evidence of it produced in court. In fact, as was seen in Chap. 2, its absence was also a feature of historical prosecutions.

  6. 6.

    For discussion of the complex cultural implications of the dildo, including masculinist interpretations of it as a prosthetic indicating lesbians’ penis envy, see Hamming (2001, pp. 329–32).

  7. 7.

    For the general susceptibility of victims to repeat victimisation in deception involving romance, even where the fraud should be obvious, see Gillespie (2017, p. 221).

  8. 8.

    In 2017/2018, only 6 per cent of sexual offences cases reported to police resulted in a charge or summons (Office for National Statistics 2018, p. 20).

  9. 9.

    The defendant was convicted on that basis following a retrial (Byrne 2012).

  10. 10.

    At para. 21, apparently as a gloss on Assange. Bunting also sees this as an open question (Bunting 2013).

  11. 11.

    In relation to ‘common sense’ in these cases, see Doig (2013) and Laird (2014). More generally, see Finch and Munro (2006) and Rosenfeld (2014).

  12. 12.

    This is effectively the route taken by Rubenfeld when he argues for a force requirement and asserts that ‘deceptive sex, however bad it may be, isn’t that bad’ (2013, p. 1416; emphasis in original).

  13. 13.

    For further discussion of the dangers of allowing the law to use and define rigid divisions of sexuality and gender, see Gross (2009, pp. 217–24).

  14. 14.

    The same model more or less explicitly underlies Hyman Gross’s arguments on deceptive consent (2007).

  15. 15.

    Laird (2014) supports such an offence; Bunting and Sharpe are unenthusiastic but consider it preferable to expanding existing offences (Bunting 2013; A. Sharpe 2018, p. 62).

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  1. Law School, The Open University, Milton Keynes, UK

    Caroline Derry

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Correspondence to Caroline Derry .

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Derry, C. (2020). McNally: After the Sexual Offences Act 2003. In: Lesbianism and the Criminal Law . Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-35300-1_8

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  • DOI: https://doi.org/10.1007/978-3-030-35300-1_8

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