Gender, "deception" and the law, pt. 3

This is the third post in a series inspired by the Angie Zapata murder trial in Colorado, and in particularly by the suggestion by some people that transgender people who are victims of hate crimes by sexual partners were themselves guilty of "deception." In the first post, I sketched out the traditional narrow legal interpretation of the kind of deception that can vitiate sexual consent. In the second post, I explored possible extensions of this concept and argued against them. This post specifically considers the question of disclosure by transgender people of their sexual anatomy and/or gender history to sexual partners.

Actual gender "deception" cases. A recent article by an Israeli law professor identified five cases internationally in which transgender individuals have been prosecuted for failing to disclose their gender history to sexual partners: two cases in the U.S., one in the U.K., and two in Israel. See Aeyal Gross, Gender Outlaws Before the Law: The Courts of the Borderland, 32 Harvard Journal of Law & Gender 165 (2009).

• In the United Kingdom in 1991, Jimmy Saunders was charged with indecent assault on the basis that he concealed the fact that he was born female from two sexual partners. He was convicted, though the Court of Appeals reduced his sentence.
  
• In Colorado in 1995 - the same state where the Zapata murder took place - Sean O'Neill was charged with false impersonation and sexual assault on the basis that he concealed the fact that he was born female from four sexual partners. He plead guilty to lesser charges.
• In 1997 in Washington state, Christopher Wheatley was charged with sexual assault on the basis that he concealed the fact that he was born female from two sexual partners. He plead guilty.
• In Haifa, Israel in 2003, Hen Alkobi was charged with sexual assault and "impersonation of another person" on the basis that he concealed the fact that he was born female from four sexual partners. He plead guilty to the sexual assault charge, contested the impersonation charge, and was convicted on both charges.
• In 2007, another transgender man in Israel was charged with statutory rape as well as "indecedent acts" on the basis that he fraudulently obtained consent from a sexual partner by concealing the fact that he was born female. (My only source for this case is Gross, who does not give a name and says the case was ongoing as of early this year.)

I would be very interested to find out more about these cases than is available in readily-accessible, English-language sources, particularly the U.K. and recent Israeli cases.

Notably, all of these cases involved male-identified transgender persons who had sexual relationships with underage women (and in all but one case, with multiple underage partners). It thus appears that it is peculiarly trans men who partner with women who are in danger of being prosecuted for dating without disclosing (whereas women who partner with men are in more danger of being killed by their partners). Additionally, each of these cases apparently could have been prosecuted solely on charges of statutory rape. Thus, these are not cases of individuals being singled out for prosecution based on failure to disclose, but rather cases that would have been prosecuted regardless based on the involvement of minors - though it is clear that prosecutors and/or judges in these cases did have particular reactions of disgust to these gender-variant defendants, and to their involvement of seemingly unwitting young women in what these authorities no doubt regarded as homosexuality.

As far as I can tell, in only one of these cases -- the U.K. case -- did a court rule that failure to disclose one's anatomy or gender history vitiates consent and creates liability for sexual assault. In the other cases, it appears the defendants simply decided to strike a deal, which made sense given that they were probably liable for statutory rape regardless. The latter cases provide no support for the legal theory that these circumstances negate consent. Even in the Saunders case, it's not clear from secondary sources to what extent this aspect of the prosecution was challenged, or even if the assault convictions themselves (rather than just the sentence) were appealed.

U.K. law today. In 2000, the Law Commission of the United Kingdom specifically recommended that the U.K. Sex Offences Act not be interpreted to treat a failure to disclose transgender status as deception that vitiates consent. The Commission reasoned that this would amount to "the creation of a special rule for transsexuals," and accordingly would likely violate the European Convention on Human Rights, which prohibits discrimination against trans people and guarantees the right to expression and recognition of a person's gender identity. (While the Commission stated this recommendation only in terms of individuals who had undergone sex reassignment surgery, it would probably take a different view now that, under the Gender Recognition Act, the U.K. permits change of legal gender in the absence of surgery.)

Regardless, in 2003 the U.K. revised its sexual offenses law, and narrowed the language concerning deception. Following the traditional approach of American courts, the current language covers only situations of deception about "the nature or purpose of the relevant act" or "impersonating a person known personally to the complainant." Thus, regardless of the Saunders case, it appears that UK law today would not treat failure to disclose anatomy or gender history as rape or indecent assault.

Trans people are not liars. Consider why a transgender person would hesitate disclose their sexual anatomy or gender history to an actual or potential sexual partner. Trans people are not sexual predators looking for unsuspecting victims. They live in a society where their gender identity and expression are not accepted as authentic by many, perhaps most people around them - indeed, where that identity and expression are viewed as mere pretense. They live in a society where fear and loathing of gender variance and homosexuality are intense. These fears are linked by failure to understand or accept trans identities, and manifest most strongly as fears of sexual pollution. These facts are particularly salient for trans people who are young, are just beginning or have recently made a gender transition, and who live in rural or socially conservative areas. Add to this the psychic distress, embarassment and extreme shyness many trans people experience regarding aspects of their sexual anatomy and gender history. Being rejected by a partner who does not accept their gender identity is a painful prospect - as is seeking out partners who will desire them precisely because of not accepting their gender identity.

Given this context, disclosure to potential partners is fraught on all sides for many trans people. The partner who will both accept their identity and still desire them will be rare - depending on geography and other factors, perhaps very rare. At the same time, by not disclosing they are not lying: they are simply living their lives and presenting their authentic gender, as they do in other social relationships. And once an interpersonal connection exists, the prospect of coming out can be frightening, and appear very much easier to postpone or avoid.

Trans people are no more liars when they do not disclose these matters to potential partners than they are liars by simply living their lives. This is who they are. Of course, in a long-term relationship, tiptoeing around the personal details will be difficult and probably unhealthy for the relationship. For this reason, and in response to very real fears of violence, trans people usually do disclose to sexual partners, especially when looking for a lasting romantic relationship. While I have little sympathey for other people's anxieties about being sexually polluted by a sexual partner with the "wrong" body parts, it's never desirable to risk distress to others. But I find it difficult to judge morally, and repulsive to punish criminally, the choice of some individuals, particularly in casual encounters or at the beginning of a relationship, not to come out.

Gender, "deception" and the law, pt. 1

Last week, a Colorado jury sentenced Allen Andrade to life in prison for the brutal murder of 18-year-old Angie Zapata. The jury rejected Andrade's attempt to mitigate his crime by arguing he was provoked into a crime of passion following the discovery that Zapata, with whom he'd had a sexual encounter, was a transgender woman. Queer and transgender blogs covered the story of the trial quite thoroughly (I've mentioned it previously too), and I won't recount all that here. Suffice to say that whatever my usual qualms about our criminal justice system, the Zapata verdict was reassuring in its rejection of the desperate but nonetheless vile victim-blaming defense strategy. Still, a number of commentators have predictably placed the blame on Zapata for her own gruesome death by condemning her supposed "deception" about her gender history. (The local paper covering the trial even ran the headline "Andrade: Stunned Victim or homophobe?") Some have gone so far as to suggest that such "deception" of a sexual partner could constitute criminal sexual assault.

The suggestion that transgender people who fail to disclose their gender history to sexual partners are themselves perpetrators of sexual violence owes more to horror of transgender people themselves, and of perceived "homosexual" acts, than to legal interpretation. Yes, many rape and sexual assault statutes state that deception vitiates consent. But the inherently malleable concept of deception has rightly been narrowly interpreted by courts. In this and a subsequent post I hope to sketch out some of the how and why of that interpretation, and why extending it to situations like the Zapata case would be legally untenable and morally unacceptable.

American and British courts have interpreted the concept of deception in rape and sexual assault statutes narrowly, to account for a few obvious situations in which the defendant's conduct obviously vitiates consent and fits within, or closely resembles, the common law concept of battery. See, e.g., David P. Bryden, Redefining Rape, 3 Buffalo Crim. L. Rev. 317, 457-75 (2000). This is a sensible approach, given how malleable and potentially limitless the concept of deception is.

Nature of the act. Courts have regularly said that fraud concerning the "nature of the act" vitiates consent, but by that they mean something very specific: the defendant causes the victim to believe that an otherwise unwanted sexual contact is something else entirely. The classic examples are medical professionals purporting to conduct a clinical examination or deliver a medical treatment.

Mistaken identity. Courts have also recognized identity fraud as vitiating consent, and this also means something very specific: the defendant causes the victim to believe that the defendant is actually some other person altogether. The classic example is the defendant posing as a person's spouse.

Infection, fertility and common-law battery. Several states now criminalize exposure of unwitting sexual partners to a sexually transmitted disease, but this is not classified as a species of rape. Rather, it is considered akin to common-law battery; liability is based not on whether the sexual partner would have consented given certain information, but rather on the potential physical injury. One could also imagine liability for lying about having had a vasectomy, but in this scenario, too, liability would be based not on the notion that consent to sex was vitiated as such, but that the victim would probably have insisted on using contraception. It was not the sex that was unwanted, but the consequences. These statutes are controversial, of course, both as a matter of justice and of public health.

In a follow-up post I intend to sketch the debate over extending the deception concept to other scenarios, and argue that doing so is unwise; and to discuss briefly the handful of cases in which transgender people have been prosecuted for "deception" of sexual partners.

Trans murder trial faces hurdle; media makes a sideshow of pronouns

A Colorado man is set to go on trial next month for the murder of 18-year-old Angie Zapata - though that trial is now facing a potentially serious snag after the judge ordered the defendant's confession thrown out because of overreaching by police. The local Greeley Tribune has covered the story extensively; the quality of their coverage has been mixed. (Compare this to a very professional and respectful profile of the case by ABC News.) Today they an unfortunately sensational article devoted to the use of pronouns in the case.

All of this is quite beside the point of this case, a tragedy shockingly similar to the murder of Gwen Araujo in California in 2002. But the issue is not without some news value, if not, as the paper's approach suggest, simply because it's "odd." As National Center for Transgender Equality director Mara Keisling hints in the article, the contestation of trans identities themselves is invariably a strong undercurrent in these cases, and here as elsewhere the defense has to some extent tried to dehumanize the victim by invalidating her identity. Even as the prosecution and defense are contesting the guilt of the accused, they are also, with each reference to the victim, contesting who she was. While the article suggests that the court may address this linguistic issue before trial, I expect this will not be the subject of any ruling; the lawyers will just keep using their contrasting language.

Unusually, the article makes a point of its own journalistic conventions by pointing out that the AP stylebook directs reporters to use language consistent with individuals' gender identity and expression. Many reporters don't know that this guidance exists or choose not to follow it, and I have periodically taken it upon myself to point it out in letters to the editor.

Slain Teen's Family "Sues Everybody For Not Destroying His Gayness"

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Headline courtesy of Joe.My.God, who has provided extensive coverage of the Lawrence King tragedy since the California student was murdered one year ago. Another high school student is currently facing trial for the murder, which has been charged as a hate crime and which shocked civil rights activists across the country.

In a suit filed last year, the King family claimed their son's school was at fault for failing to enforce its dress code. Their theory was that the teen's gender-nonconforming attire and makeup made him a target for violence. That's right: since they can't exactly blame the victim, their own son, they're doing the next best thing: blaming his gender expression, and the school authorities for failing to suppress it.

Here's my legal analysis: this is nonsense. Here's my more detailed legal analysis: 1) Schools have a duty to protect students from severe or violent anti-gay bullying. 2) Students have a First Amendment right to variant gender expression. 3) Schools have authority to limit student speech that may be "disruptive," but that authority is largely limited to speech that is disruptive in itself, and usually does not extend to speech that simply might inflame classmates' political loyalties or social prejudices. 4) More to the point, while the precise scope of schools' authority to limit controversial speech is debatable, a school's liability is another matter. The lawsuit essentially seeks to force schools to suppress expression of queer identities on pain of massive legal judgments. It frames student-on-student violence as an unavoidable result of queer expression, thereby blaming the victims of hate violence and implicitly absolving the school of any responsibility to protect students once they are targeted by bullies.

But this is what you'd expect from a family that threw their son out of the house for being queer: it's not homophobia that killed Lawrence King, it turns out, but queerness itself. And now the family has taken this broken logic even further by suing the youth shelter that took King in after they threw him out, for giving him women's clothing and makeup; and suing the Ventura County Rainbow Alliance, which hosted youth programs attended by the teen, for supposedly encouraging him to hit on his killer. They also sued a teacher and a counter social worker on similar grounds. So now their theory is that not only do schools have a responsibility to keep students safe by suppressing queer speech, but anyone who provides services to youth and fails to discourage queer expression is responsible for hate violence against them.

This would just be funny if it didn't reflect the way so many parents, and other people who work with youth, think: that queerness is an inherently dangerous behavior that kids stumble into and need to be protected from. In other words, guns don't kill people, being a faggot kills people.

(As a side note, it will be interesting to see whether social-conservative groups decide to highlight this case as an example of how liberals are perverting and endangering our kids, or will rightly recognize that the lawsuit itself, rather than the conduct of the defendants, is what will appall most people.)

For good measure, though, the King family did include a claim against King's murderer.