When I first saw the photographs of Ciara Watkin (CW), a trans identified man, taken during his sexual assault trial at Teesside Crown Court, I wondered how anyone gifted with sight could mistake him for a woman. The heart of the case against him was that he had obtained consent to sexual activity by a deception as to his sex. In other words, he had led his victim (V) to believe that he was female.
It seemed absurd. In the press photos, CW wore false eyelashes and women’s clothing, but he also had visible stubble, a typically male browbone and jaw and, in profile, it was clear that he has a penis.
Understandably, his defence relied on the fact that he was so observably male that V’s assertion of being deceived must have been untrue; perhaps shame, embarrassment, regret, internalised homophobia, or a combination of these factors moved V to close his eyes to the obvious.
I had the advantage of attending the trial during the judge’s summing up of the evidence. It was as thought-provoking as it was illuminating.
The Evidence
The sexual assaults took place when both CW and the victim were 17, four years before the trial.
The two met on snapchat, where CW presented as a girl.
When they met up and sexual activity started, CW told the victim that he was menstruating at the time, which V accepted as a reason for CW’s refusal to let V touch his chest, thighs or groin area.
They met a second time at V’s home. At trial, V’s mother explained that she suspected that CW was a boy but said nothing at the time to V. At some point, some of V’s friends unexpectedly arrived. They were less circumspect than his mother and, with the kind of tact we readily associate with teenaged boys, mocked V about this “girl” being a boy. Still V continued to accept CW’s deception.
CW’s mother told CW that it was not fair to lead V on, and that she thought he should tell V that he was trans.
At some point CW blocked contact from V, but a little later messaged him to disclose that he (CW) was trans. V’s mother saw her son’s reaction to this communication, which was one of shock and incredulity. V later described how painful and difficult the news was, because he “doesn’t swing that way”.
It was not V who went initially to the police; it was a staff member at his school.
In his police interview, CW admitted deliberately deceiving V into believing he was female and accepted that he did so because he didn’t think V would be interested in him if he had disclosed that he was male.
How did it happen?
So how earth did CW fool V? Isn’t there something questionable about V’s claim that he didn’t know?
The jury clearly accepted that he had been deceived, and CW did too. It also seems that their respective mothers and V’s friends also saw that he had been deceived.
Evidence of a complainant’s sexual history in such cases is treated as inadmissible unless it can be shown to meet stringent legal criteria as to its relevance to the case. I am not aware of any evidence about V’s sexual experience, save for the judge’s comment that he was “naïve”.
The physical maturation that takes place between the ages of 17 and 21 can be very significant indeed. There are no publicly available photos of CW at the time, at least none which haven’t been very heavily filtered, so it is not safe to assume that unfiltered pictures of him now reflect his unfiltered appearance at the time.
Psychological maturation and the impact of life experience are no less significant. It is not fair or accurate to ask a jury to use the map of two 21 year olds to navigate the territory of two 17 year olds.
I think it is also important to bear in mind the possibility that a flirtatious or sexually charged exchange (between inexperienced adolescents) can create a powerful cognitive bias, effectively priming the victim of a deception to continue to accept the deception. Crudely put, we see what we are looking to see, and so it is not implausible to me that V went to meet a girl he fancied and, the exchanges with the girl he fancied firmly imprinted on his mind, perceived the person he met as precisely that.
Much of the reporting of this case has been sensationalist, trading heavily on a “WTF?” reaction to the unfiltered, contemporary photos of CW. I’m not suggesting that the press shouldn’t be able to report the case in that way, but I think it must be agonising for the victim. The entire country was invited to laugh at him for his credulity, almost as if he was to blame for an experience that has left him not knowing who he is.
Our freedom to choose the sex of our partner, on each occasion, is integral to our sexual autonomy. Sexual orientation is not, in my view, susceptible to analysis which diagnoses it as transphobic, homophobic or suffering from any other moral, political, or religious failing. To argue otherwise is vain in every sense and quite disconnected from reality. Similarly, any argument that no harm has been done if a deceived person is brought by the act to orgasm (or some other discernible degree of sexual pleasure) is a callous disaggregation of what sex can mean for the human beings involved.
In R v McNally (Justine) [2013] EWCA Crim 1051, the Court of Appeal said that there was a “common sense” difference between a sexual act performed by a man and the same sexual act performed by a woman. That difference, the Court concluded, was fundamental enough to change “the sexual nature of the act”. In this case, as in the case of McNally, the victim could not properly be said to have consented to the act. The victim consented to something quite different and so did not consent at all.
What of Ciara Watkin?
Some may be surprised at the extent of my sympathy for Ciara Watkin. He has been held responsible for committing a number of very serious offences; he must be, because the legal responsibility begins and ends with him.
But I do not think that the wider responsibility does.
Language used by trans activists and widely disseminated by Stonewall contrives to give the impression that, when a person identifies as trans, a right of secrecy about his or her sex is now conferred on that person. This, in the hallucination of Stonewall Law, is an absolute right and is enforceable against the whole world. In effect, no one is entitled to know the truth, still less entitled to say it.
Young people of CW’s age have been schooled in the language of “misgendering” and “deadnaming” and told that speaking accurately about someone’s sex and previous name is a source of “harm”.
I looked at the reporting of this case by Pink News. Pink News is an online publication devoted to advancing the expansion of trans rights, a devotion seemingly rooted in the conviction that trans identified people are the most oppressed minority on the planet.
The comments were mixed, and more interesting than the article. No one was particularly condemnatory of CW; the harshest comment was that his conduct could not be condoned, and that the best policy was always disclosure. One person commented that you shouldn’t be dating if you weren’t prepared to be honest. Others believed that there was nothing wrong with what he had done, and that he was entitled to his privacy. One person opined that since the For Women Scotland judgment only related to the Equality Act, it was unfair that it was applied in criminal law. Others believed that this was a part of a growing trend of bigotry in the law, and that the victim should have been punished for his transphobia. These beliefs are one thing, but what struck me was the ignorance of the criminal law as it applies in this area. The class of deceptions which are capable of invalidating sexual consent is very narrow indeed, but the case of McNally established that it certainly includes sex. However much a person may want to be, or even imagine themselves to be, the other sex, however much a person wishes to ignore their sex, or is deeply distressed by the fact of their sex, there is no legal entitlement to deceive a sexual partner about it.
People who, for whatever reason, present in a way which conceals their sex should surely be protected from misinformation about where the legal boundaries lie. If CW was never told that a deliberate deception as to his sex risked conviction for serious criminal offences, then it is hard to shake the feeling that we have allowed a deficit to accrue in how we educate a generation for whom successful sex-deception will be an increased risk. Those who have taken puberty blockers and cross-sex hormones will be far more likely to pass as the other sex than those who have not; this will not avail them of any legal protection if they do not disclose their sex to a partner. Indeed, the more successful a deception, and the more desired its success, the more culpable the deceiver is likely to be deemed. No one has the right to “go stealth” when it comes to sexual consent. When those who are in a position to educate decide to ignore, or promote confusion about, the law then it is most frequently going to be young, inexperienced people like CW and his victim who pay the price.
Sarah Vine KC