The question of consent in relation to sexual interactions between people can throw up some incredibly complicated questions, one being question of when somebody tells lies about themselves vitiates consent.
We have previously looked at the case of Galye Newland, a 27 year old who was convicted in 2015 of various sexual offences, and sentenced to 8 years imprisonment. An appeal against conviction was allowed last year, and the matter sent back for a re-trial.
On 29th June 2017, the jury convicted her 11-1 of three counts of what was reported as sexual assault (although it may be assault be penetration).
Ms Newland befriended another woman (the complainant so we do not know her name) in 2011. For reasons that are not clear, she then set out to pretend to be a man and approach the victim.
Ms Newland created a fictitious Facebook profile in the identity of ‘Kye Fortune’ for this purpose, although it seems that she had been using the identity of Kye for ten years or so (before she met the victim).
Between 2011 and the beginning of 2013, she spoke to the victim for many hours on the phone talking, as well as swapping messages and photos online. Throughout this period, Ms Newland maintained the fiction that she was a man
At the same time, ‘Kye’ told the victim about a friend of hers who was also a student at Chester University – namely Ms Newland. It seems that Ms Newland (as herself) and the victim met up regularly and became good friends, to the extent that the victim confided in Ms Newland about Kye.
When it was time to meet up in February 2013, ‘Kye’ said that he “was insecure about his looks following supposed life-saving brain surgery” and asked the victim to wear a blindfold, while he wore a prosthetic penis.
Additionally, Kye told the victim that he “was bandaged around his chest because of a heart condition and had to wear a “medically necessary sort of bodysuit” during sex. In addition, he would have to wear a hat because of scarring caused by an operation on his brain tumour“.
Over a period of time, Ms Newland engaged in (factually consensual) sexual activity with the victim. This ended on 30th June 2013 when the victim took off her blindfold and saw that her partner was not a man, as she thought, but her female friend.
After that, Ms Newland tried to commit suicide and sent the victim apologetic emails.
The police were called in. Ms Newland accepting that she had a relationship with the victim, but said that the victim was never blindfolded and knew who she was.
The jury convicted Ms Newland of three counts of Assault by Penetration (and acquitted her of one further count). The basis for this would appear to have been that the victim was straight and would not have consented to the activity had she known that the person she was with was her friend and/or a female.
Although it seems extraordinary that this could be the case, the jury heard all the evidence and found Ms Newland guilty of these offences. The issue for the jury was summarised as “did the complainant really know she was having sex with her friend, or did she honestly think her sexual partner was a man she had met on the internet“?
The jury (by a majority) answered that question adversely to Ms Newland. It was clearly a difficult decision. According to the Guardian, Ms Newland “wailed as the foreman delivered the verdicts and could be heard from the dock saying: “I can’t go back to prison … A female member of the jury was visibly distressed as the verdicts were read out”.
On the last occasion, Ms Newland was sentenced to 8 years imprisonment, a sentence that many felt was perhaps too long (although such judgements were often made without the benefit of the full facts).
The Judge adjourned sentence until 20th July, with Ms Newland on bail, although he made it clear that the likely sentence is one of custody.
The starting point, as always, is the Sentencing Guidelines (see page 13). It is difficult to know where to place it; it would seem on the fact of it to be 3A, depending on the personal circumstances of the victim, but it is likely that this is a case that is outside of the guidelines. Or, at least, where a Judge would be entitled to go outside of them.
We do know that she cannot get a higher sentence than 8 years by virtue of para 2(1) Sch 2 Criminal Appeal Act 1968. Further, as she has been acquitted of a further offence, she can expect to receive a lesser sentence in any event. That is all before the Judge gives fresh consideration to the case in light of what he made of everything at trial.
These cases are very difficult ones, and it is clear that Ms Newland is herself a vulnerable woman.
Should it be a criminal offence at all? If so, should there be a separate offence of procuring sexual activity by deception, or something similar? How should it be sentenced?
These are all good questions to ask. There has ben a lot of public debate about them, and it is likely that it will be a long while before there is any consensus. But it is clear that on the law as it is now, Ms Newland was guilty of these offences.