When is a rape not a rape?

The “sex by deception” law must stay to protect women from trans predators

This article is taken from the July 2021 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issue for just £10.

Stonewall has long campaigned for gender identity to trump biological sex in law, policy and wider society. This is well-known by the increasing numbers of us in the trenches of the gender war. Taking the “trans women are women” mantra to its logical conclusion, it is no wonder the equal rights charity is now seeking to make changes to the criminal code that could lead to a redefinition of sexual offences. 

What has now become a trans-rights lobby group is calling for a change in the law that would protect trans men and trans woman initiating a sexual encounter with someone, while actively, falsely, claiming to be of the same sex from being charged with sexual assault. The so-called “sex by deception” clause.

Women cannot rape because the law is defined as being committed by a man

While I have grave concerns about the convictions of Gayle Newland and Justine McNally (both lesbians who, it is claimed, posed as men during sexual encounters with female sexual partners), we need to be realistic. Men identifying as lesbian trans women while keeping their identity from women during sex are the substantially greater threat. Oddly enough, “changing sex” does not change who most rapists are. To be blunt, a trans woman with a penis — which is what a large majority of them have — can identify as and claim to be a lesbian. 

Rape is defined in England and Wales as, (a) he (A) intentionally penetrates the vagina, anus or mouth of another person (B) with his penis, (b) B does not consent to the penetration, and (c) A does not reasonably believe that B consents.

The key words here are “he”, “his” and “penis”. Women cannot rape, because the crime is defined as being committed by a person with a penis (a man). But shockingly, a number of police forces already use “preferred pronouns” to record complaints of rape, and judges have warned female victims of male violence to use “she” when giving evidence in court against their male attackers.

Stonewall frames its concerns about “sex by deception” as it relates to trans people as an issue of privacy. For example:

Recent “sex by deception” cases involving trans people and gender identity issues have revealed an alarming lack of clarity around trans people’s rights and obligations to disclose or not disclose their trans history to their sexual partners. These cases demonstrate that it is possible for non-disclosure of a person’s trans status to impair the validity of consent. This leaves a great many trans individuals at risk of prosecution for a criminal offence.

Call me the old-fashioned type of lesbian, but I think it’s perfectly reasonable to be informed by a potential sexual partner if a penis might be involved. 

Much of the criminal justice system has been already been captured by Stonewall. Many police forces, the Crown Prosecution Service and hundreds of governmental, legal, charitable and private organisations have signed up to the protection racket otherwise known as the Stonewall Diversity Champions scheme. A few are falling away in shame now, but there has been no explanation why so many signed up in the first place to jump through hoops held up by Stonewall. 

Thanks to this highly dubious organisation, “gender” is now accepted by many to be “assigned at birth” and a characteristic that cannot be changed, whereas “sex” has been redefined as a “social construct”. Last year, the Labour MP Dawn Butler went so far as to claim babies are “born without a sex”. 

It is no wonder that much of the media reporting on the disgraceful case of Karen White included the Orwellian phrase, “her erect penis”. The truth is, if trans women are women, and ex-men can simply self-identify as women without surgery or hormones being involved, then the categories of “male” and “female” when it comes to rape law have become obsolete.

It’s reasonable to to be expect to be informed by a potential sexual partner that a penis is involved

Trans women that identify as lesbians have long campaiged for the “right” to have sex as women with women, whether or not a penis is involved. In 2009, a trans woman going by the alias “Genderbitch” was one of the first to declare that some lesbians have penises. Genderbitch, who identified as a lesbian, blogged: “Seriously, if you’re attracted to women, then that means you’re attracted to women. Not vaginas. Not tits. Being attracted to individuals with vaginas and tits is fine.”

Genderbitch then went on to outline the etiquette of sexual rejection:

There’s nothing wrong with simply saying to someone, “You’re not my type.” You’re not obligated to explain why, and I know that I wouldn’t hold it against you for not finding my genitals physically attractive. Anyone that does is being fairly fucking unreasonable. But don’t couch it as “Well, I’m a lesbian, I don’t like people with penises.” Yeah, that’s fucking cissexist as hell. 

Going by this logic, a lesbian is transphobic and indeed “cissexist” if she rejects the trans woman on the grounds that “she” has a penis.

This blog came three years before the term “cotton ceiling” (a riff on glass ceiling) came into popular use on social media. In 2012, Drew DeVeau, a trans activist and porn performer, invented the term to describe the difficulties faced by men who identify as lesbians in finding actual lesbians as sexual partners. When lesbians argued they did not want to have sexual relationships with people with penises, the phrase was rebranded “ladystick” or “girldick”. 

Stonewall has never really been interested in women, unless they have a penis

Josie* (not her real name) is a university student in England who was raped in early 2018. Last year Josie’s mother Elsie* contacted me to ask for advice and support following the collapse of her daughter’s rape trial. During a night out with some female friends, Josie, a lesbian, started chatting to Marsha* who later joined the group in going on to a lesbian nightclub. Marsha could not find their hotel at the end of the evening and seemed quite drunk and somewhat disorientated.

Marsha “passed very well” for a woman on the night of the rape, according to Josie. Conveniently, however, Marsha did not “pass” during their attendance at court, but was dressed and presented in a far more traditional male way. With the benefit of hindsight, this makes complete sense given the defence strategy used during the trial.

The defence used in court, which led to an acquittal, was that Josie was well aware that Marsha was a trans woman, and that Josie reported Marsha for rape as a result of being “transphobic”. The defence claimed that if the jury couldn’t be persuaded that the defendant in court passed convincingly as a woman, then Josie must have consented, and therefore a rape cannot have taken place.

“Marsha gave no indication that she was trans and kept referring to a couple of YouTube bloggers who are lesbians,” Josie said. “You don’t get to use your femininity to gain the trust of a female and then use your masculinity to destroy them,” she added. “I felt and still do feel an extra sense of violation, at being accused of being transphobic in court after being brave enough to speak my truth as a victim of rape.”

Elsie told me she and her daughter often wonder if the rapist might have been found guilty if the case had been presented as rape by deception. “Stacked alongside the many myths about rape, my daughter didn’t stand a chance in court without that vital element of deception having been at the forefront of the prosecution’s case. Without deception, the case was as strong as a chocolate teapot.”

Stonewall has many supporters for its campaign to remove the sex by deception clause. According to legal academic and trans activist Alex Sharpe, in an article for the New Statesman in 2015 — the year Stonewall first highlighted its intention to campaign to remove it — “… gender identity is singled out as the piece of information or slice of subjectivity that demands revelation”. 

But biological sex is the issue here, not gender identity. What else might be more relevant for a person to know in order to give informed consent to sex? What could be more reasonable to want to know?

Protecting the “privacy” of trans women has become a bigger issue than protecting women from rape

In their 2019 paper, Dude Looks like a Lady: Gender Deception, Consent and Ethics, academics Victoria Brooks and Jack Clayton Thompson argued argue that sex by deception “provides no justification why rights to privacy are subservient to corresponding rights to sexual integrity or why it is justifiable for a trans person specifically to disclose their bodily history rather than a cisperson being required to disclose their bodily history.”

The presence of a penis is being described here as “bodily history”, as though adopting a new “gender identity” washes away the biological reality.

The LGBT Foundation is another trans lobby group. It is also critical of the law on sex by deception and makes the ridiculous statement: “Trans bodies are varied and the assumption that all men have penises, and all women have vaginas is not only transphobic, but legally inaccurate.”

Stonewall has never really been interested in women, unless they have a penis, and nor does it concern itself with the shocking levels of sexual violence experienced by women. The current conviction rate stands at around 1.5 per cent of all rapes reported to police and yet Stonewall is fighting to remove the legal right for Rape Crisis centres and domestic violence refuges to remain women-only. They also argue that trans women convicted of sexual offences against women and children should be housed in women’s prisons. 

I asked Stonewall why they’re campaigning to remove sex by deception. “We want to live in a world where all LGBTQ+ people are safe and free to be themselves, and this includes ensuring that all lesbian, bi, trans and queer women are protected from sexual violence,” came the response. “Sexual violence can affect all women, including lesbian, gay, bi and trans women, while the vast majority is perpetrated by cis men.” 

The usual flannel. When the “privacy” of trans women becomes a bigger issue than protecting women from rape, it shines a light on the moral compass of what has become a misogynistic men’s rights organisation.

*Name have been changed for legal reasons

Enjoying The Critic online? It's even better in print

Try five issues of Britain’s newest magazine for £10

Critic magazine cover