Woman who pretended to be a man sent to prison for 8...

Woman who pretended to be a man sent to prison for 8 years

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Photo from the BBC

Introduction and Factual Background

It was, on any view, a curious case.

On 12th November 2015 Gayle Newland, a 25 year old Marketing Manager, was jailed for 8 years.

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. It seems that she had been using the identity of Kye for ten years or so (before she met the victim). She spoke to the victim for many hours on the phone, imitating a man between 2011 and the beginning of 2013.

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.

Over a period of time, Ms Newland engaged in (factually consensual) sexual activity with the victim on about ten occasions. This ended when the victim took off her blindfold and saw that her partner was not a man, as she thought, but her female friend.

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 (not, as was reported in the news, Sexual Assault). 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.

 

Sentence

This would have been an incredibly difficult sentencing exercise.

The starting point is the Sentencing Guidelines (see page 13). The Sentencing Remarks have been published – this is always helpful, and is essential in a case such as this to help the public understand.

The Judge assessed it as Category 2 Harm on the basis that there was ‘severe psychological harm’ and the victim was ‘particularly vulnerable’. It was Culpability A due to the significant degree of planning makes it higher culpability.

This then gives a starting point of 8 years and a range of 5-13 years. The Judge rejected an argument that the case was one that fell outside of the Guidelines, and passed a sentence of 8 years, whilst commenting that the case probably merited more than that, but he was confining it to 8 years as an act of mercy.

 

Comment

Firstly – should this be a criminal offence at all? It feels so, given the circumstances, but it’s not so clear cut.

I have written a lot more about this in relation to the case of McNally a few years ago. The issue is an incredibly complex one (and a good antidote to anyone who says that consent is not complicated), but on the law as it stands, Ms Newland is guilty.

Whether or not this should constitute assault by penetration, or some other offence, the sentence passed seems way over the top (subject to the usual caveats about us only being able to go on what we can see in the newspapers).

Whatever lead her to do this, it would appear that Ms Newland is herself a vulnerable individual. In sentencing, the Judge said “the various disorders highlighted in the report including social anxiety disorder, personality disorder, depression and OCD.

[the psychiatrist] emphasises the close link with your troubling issues of sexuality with the one exacerbating the other and vice versa. Your history of low self esteem and blurred gender lines is important. You present a very troubling picture. Whilst there is no need for a Hospital Order it is plain that various aspects of your psychiatric condition require careful monitoring and treatment

Legally speaking, the presence of factual consent is not a mitigating factor, and may even be seen as an aggravating one.

But, stepping back, this is a very long sentence and it is hard to see that a sentence of that length is needed for what occurred, notwithstanding that it is very disturbing behaviour.

 

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Dan is a barrister at 2 Dr. Johnson’s Buildings practising in crime.

18 COMMENTS

  1. I agree with Dan Bunting that the sentence is excessive.

    The issue of lack of consent because of deception is interesting. I can see if that someone impersonates the boyfriend of a person and has sex with them in the dark then that is rape. But where do we draw the line?

    If a person pretends to be Justin Bieber in order to have a sex with a fan of that pop star, is that rape? What about someone who claims to be a barrister, but in fact is a solicitor, who has sex with someone who only has sex with barristers, and who finds the idea of sex with a solicitor to be repulsive? Is that rape? Or someone who seduced someone by telling them they were rich, but in fact was broke, is that rape? Or someone who tells a woman that he is unmarried, but in fact is married, and the woman would never agree to sex with a married man, is that rape?

    If had Gayle Newland declared herself to be trans-sexual and was legally male (although anatomically female), would that have made a difference?

  2. See R -v- Collins [1968] QB 100 for an interesting (not to say remarkable) case on the point.

    The victim was up for sexual contact with a man, not with a woman. That’s a wholly different matter from pretending to be rich and famous, or single, or a solicitor. if this was not a criminal offence, and a serious one to boot, the law would be absurd.

    But eight seems a bit steep. It will be interesting to see what the Court of Appeal makes of it if indeed she appeals, but why wouldn’t she?

    • I don’t understand why it is a “wholly different matter”. That seems to be just an assertion on your part.

      The woman deceived by the fake pop star, bogus barrister, married man etc could be just as devastated when the truth is revealed as a person who had been having sex with a woman, whom she believed to be man. Having your life ruined because your sexual partner has been lying to you does not mean that you have been the victim of a crime.

      As far as I can tell the case of R -v- Collins [1968] is a wholly different matter to those where a person lies about themselves in order to persuade a person to have sex. In Collins the perpetrator pretended to be someone with whom the victim was already in a sexual relationship and used darkness in order to carry out the deception. That is a different sort of deception than when a person tells a lie about themselves, in order that another person will consent to sex.

      • No: in Collins the complainant made the mistake and invited him in. As I say, a remarkable case. He did not deceive anybody. His conviction was quashed.

        Sex with a woman as opposed to sex with a man is an act of a different nature; rather like sex with a man was different to an operation to improve the voice which was the deceit by which the defendant in a case in 1870’s “had his wicked way” (in the language of the times) with a pupil; presumably over whatever was then the age of consent or he would have been charged with u.s.i.

  3. I actually felt for both parties in this case. Gayle or her male persona Kye clearly has some problem(s) with regards to sex and her own sexuality.
    Deception is wrong but I don’t agree with Dan that consent is complicated. The victim (complainant) believed she was having sex with a man and consented to sex with a man she didn’t consent to sex with another woman. She engaged in it (presumably) willingly, but not knowingly.

    Also is puzzling is how it was not apparent to the victim that Kye was a woman, I’m not blaming her for this, it’s something I’ve been mulling over all day, whether it is possible to not realise the gender of the person you’re having sex with if they haven’t had gender reassignment surgery and where all the original bits and pieces are present and correct. I also don’t understand how running two separate mobile phone numbers is necessarily sinister. I keep a phone for the school, work, family and another that I give where it doesn’t matter who has it or who calls it will never be an emergency.

    Eight years was a steep sentence and the BBC journalist who evocatively described the defendant’s reactions during and after sentencing with her sobbing and having to be physically removed by prison officers from the dock, her screams heard reverberating around the court building even afterwards, painted a sad and distressing picture of someone who is perhaps guilty but who was genuinely ignorant of own or the extent of her wrong doing and I presume it still stands that ignorance of the law is no excuse. A very sad case.

    • Agree. It seems that both parties are ‘disturbed’ in their own way.

      In terms of consent, of course in 99% of cases it’s very straightforward and the issue isn’t consent but who is telling the truth. But at the margins, the question of what is consent is a very complicated one.

  4. 8 years seems such a long long sentence. I do believe people need to have some sort of self preservation here, you’re having sex with a blindfold on with someone you’ve never seen. Seriously?!

  5. I can understand the conviction in this case if it were on the basis of a prosthetic being used (i.e. the Complainant did not consent to the physical insertion of an unknown plastic object). However, non-consent on the issue of gender seems incompatible with our stance on other issues. Few people would feel deception is a good thing in relationships: in the same way, it is not a good thing when a woman consents to her apparently ‘loyal’ husband of 20 years having sex with her (when he is in fact having multiple affairs). Or in the same way that a devoutly religious person might feel deceived if they thought they were having sex with someone of the same religion (but it turned out otherwise). However, the issue is whether these social deceptions are criminally prosecuted, and in those last two examples, it is my understanding that no such offences would be committed. We know that there are biological and hormonal issues that blur the gender lines: for example, someone could have physical characteristics of one gender, but their brain chemicals are equivalent that of another. And as I understand it, we are legally obliged not to discriminate against people on this basis. The Defendant in this case seemed to identify as a male (at least in her private relationships) and presented herself in a more obviously male way when interacting with the Complainant. The Complainant consented to sexual activity with the person she was interacting with. As I say, the use of a prosthetic was possibly a criminal offence. But I find this issue of ‘deception’ regarding gender a very grey area, and I have a real problem with such a long sentence for an offence that wasn’t obviously an offence until recent court decisions. If I’d been living under a rock and had sexual activity with a woman called Caitlyn Jenner, have I been the victim of a criminal offence if she did not tell me of her earlier gender status? Is it a ‘deception’ because she wore pretty dresses or a really high-quality hair weave? Do we have to work out whether the sexual activity was before Caitlyn had certain hormone injections? Or is it actually the case that deep down, Caitlyn was always female. I think it’s easier to leave gender out of it (as we cannot discriminate under the human rights act) and focus on things like deceptions as to the use of physical objects, etc.

  6. But, why is the possibility that her accuser lied not being discussed? Surely, this has to be a reasonable possibility.

  7. This is a very interesting transcript of at least part of what Newland said in court. It gives the very strong impression that what we apparently know from the media coverage is entirely scripted from the complainant’s narrative, which seems to have been swallowed whole by the media with far too little circumspection, especially given the incredulity of her claims to never having seen the face of a sexual partner of 2 years.

    From the outset, what we’ve been fed about this case seemed partial, to say the least. Arguably, this transcript gives at least some psychological and emotional veracity to the probability that the complainant knew far more than she led to believe.

    Jonathan Andrews’ point above raises a crucial point. It is surely also a reasonable possibility that the jury dealt with the trans/lesbian peculiarities of this case with prejudice.

    That the law became involved in this situation at all seems far more to do with the complainant’s fear of the exposure of her sexual proclivities, and far less to do with sexual assault in any sense.

    It’s a very sad case, and the legal problematics it seems to raise are probably in truth far more hypothetical than the reality of the situation suggests, in spite of the initial closure of sentencing.

    http://www.thejournal.ie/fake-penis-gayle-newland-2322396-Sep2015/

  8. Interested in your thoughts re the women deceived by undercover police officers and the similarities to this case.

    On the face of it there’s reasonable grounds to think that consent would not have been given if the true facts had been known so I think there’s at least a plausible case that Met police officers committed multiple rapes that have not been prosecuted.

    It’s not clear cut, but the deception certainly seems to go some way beyond pretending to be a footballer/racing driver.

  9. Er, no. There is no difference between pretending to be rich, single, in a glamorous line of work and pretending to be whatever these officers pretended to be as part of their cover. In the end the women concerned decided to go to bed with the man in whose presence they were. That’s quite different to pretending to be a woman when you are a man or, as here, vice versa. The women in the Met case were not raped, however badly they were treated. In fact I cannot see where the vicarious civil liability of the Met is coming from.

    • Andrew, an undercover police officer infiltrates a group and sleeps with a woman or women, fathers children with them all in order to gain information about the group’s activities. You are saying this is okay. It’s not a sexual assault. Why not? On what grounds is it in any way acceptable. Is it only an assault if you know you’ve been assaulted.

      • I don’t think Andrew is saying that what happened ‘is okay’. The behaviour of the police was completely immoral and nobody is defending it. It may be that it should be criminal, but it’s currently not (probably). But I don’t think anyone is saying that it is in any way acceptable.

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