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.
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.
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.