This week witnessed yet another sexual offences conviction for gender fraud (three counts of sexual assault, to be specific) on the basis that the defendant, Gayle Newland, “pretended” to be a man. This particular, and now all too familiar, criminal justice and media trope is alarming for a variety of reasons. These include legal inconsistency, in that gender identity is singled out as the piece of information or slice of subjectivity that demands revelation, the ease with which desire-led intimacy and consent are legally uncoupled, and problematic conclusions of deception in cases involving transgender defendants.
However, it is not doctrinal legal issues concerning the construction of ‘consent’ and/or ‘deception’ that interest me here, but rather what is elided by exclusive media and academic focus on these two legal and philosophical concepts. The most surprising and, for me at least, counter-intuitive aspect of the Newland case, and others before it, lies not in legal conclusions as to where consent ends and deception begins, but in the prior suspension of disbelief regarding the implausibility of the story that makes everything else possible: complaint, prosecution, conviction, sentence, hysteria.
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