The question of consent in relation to sexual relations can be an incredibly complicated one. Cases can sometimes throw up sets of circumstances that would be considered, and tossed out as being too fanciful, by a law professor.
Recently, there have been several cases of people who have pretended to be a different gender in order to trick another into engaging into ‘consensual’ sexual activity with them.
Consensual is in inverted commas, because a critical question is : ‘When does somebody’s factual consent deemed not to be legal consent?’
On 23rd March the case of Jennifer Staines gave another example of this.
Ms Staines was a 23 year woman who created a fake identity – Jason Spiller – online. Her victims were three girls, one started when she was aged 13 and the other two 17.
It seems that the deception went on for a long period of time, up to five years, and Ms Staines even went on holiday with the family of one.
There is fuller coverage in the Bristol Post, but even then the charges aren’t clear. But it seems that it is as follows :
A – aged 13 (when Ms Staines was 17)
Ms Staines and A talked on social media, and then on a webcam (with Ms Staines always wearing a hat). He stayed with A and her family for 5 days, turning up with presents for A.
Ms Staines wanted sex with A, but she said that she was not ready for that, although they did ‘snog’. A had sent Ms Staines naked and topless photographs of herself.
1 x Sexual Assault (presumably kissing, although this would fall more naturally into ‘sexual activity with a child’)
2 x Indecent Images of a child
B – aged 17 (when Ms Staines was 21)
B and Ms Staines engaged in a sexual relationship and had sex ‘some fifteen times‘. Ms Staines used a rubber penis to do this, and used a condom to keep up the pretence.
This was always in the dark, and Ms Staines wouldn’t take her clothes off, saying she had stab scars in her chest (and therefore wore a bandage) and always kept her boxer shorts on (with socks in them, to keep up the pretence). Ms Staines said that she had been circumcised and it was painful to touch her penis, which is why she always kept her boxer shorts on.
This must have been convincing as B went to her doctor, thinking that she was pregnant.
2 x Sexual Assault (we don’t really know what these relate to)
C – aged 17 (when Ms Staines was 22)
C and Ms Staines engaged in a sexual relationship, during which Ms Staines “touched her intimately and used a sex toy on her“.
It seems that C’s family thought that Ms Staines was a woman, which C refused to believe, thinking that she and Ms Staines would start a family.
3 x Sexual Assault (presumably the two instances referred to above, and another which we are not clear about)
She was sentenced to 39 months. It seems that the investigation started 18 months ago, but we don’t know what stage of the proceedings the case was at (and therefore how much credit Ms Staines would get) when she pleaded guilty.
We would guess this gives a starting point of between 3½ and 5 years. The maximum for Sexual Assault is 10 years, and there are Sentencing Guidelines (page 18). On the face of the news reports, this would be a Cat 2A offence, with a starting point of 2 years and a range of 1 to 4 years.
Here, there were three victims, and multiple offending (as well as the images) so this would not necessarily be out of kilter.
The problem here is that we don’t have any clear idea of what the charges were. On the face of it, if these happened when A was 12, then whilst kissing is less serious (Cat 3A – see page 38) it is still a serious offence.
B presents the biggest problem. Having ‘sex’ with a rubber penis would normally be charged as assault by penetration (Cat 3A – page 13) which has a starting point of 4 years.
But she was charged with Sexual Assault, so it may be that the above facts are incorrect. There will probably be an appeal, so it may be that the full facts are put into the public domain and we can revisit it.
All in all though, on the bare facts that we have, the sentence seems right.
I would separate A off, as the sexual activity (seems to have) happened when she was under the age of consent, which is something that Ms Staines knew, and so very different issues apply.
I wrote a fairly long piece called ‘when is consent not consent‘ which sets some of the problems of holding that a deception over your gender can vitiate consent.
Since then, there has been the case of Gayle Newland, which may still be in the process of an appeal.
We are told that Ms Staines ‘suffers from’ (if that’s the right word) gender dysphoria – a mismatch between her biological sex at birth and the one that she identifies with. This is a feature of the other cases mentioned above.
Whilst it is obviously wrong to deceive others in this way, it does not seem that this is a straight case of abuse of another – Ms Staines is a vulnerable person who felt herself to be a man.
Although I am not a fan of more legislation, and it is barely more than a decade since the last big review of sexual offences, this is an area of the law that it seems to me would benefit from careful consideration by Parliament as to whether the ‘straight’ sexual offences are the appropriate way to deal with people like Ms Staines.