And so here we are again. The relentless churn through the predictable life-cycle of the tabloid-tickling criminal case. Unusual case through to polarising verdict, through to “controversial” sentence and culminating in a red-top digging out a different case sentenced by the same judge to make whatever point fits their agenda.
The unusual case du jour is that of Gayle Newland, an apparently troubled young woman who impersonated a male called “Kye” and embarked upon a campaign of sexual activity with the unwitting complainant, who believed she was having penetrative intercourse with a man rather than a woman wearing a prosthetic penis. When the complainant removed the blindfold she had been persuaded to wear and saw the reality, criminal charges of assault by penetration followed, and yesterday Ms Newland was sentenced to 8 years’ imprisonment.
The Mirror, we learn today, is morally outraged by the discovery that HHJ Roger Dutton, who sentenced Gayle Newland yesterday, sentenced a paedophile to 4 years and 8 months’ porridge in 2010. The hack in question also sprays around vague details of historical sex offences dealt with by the same judge, inviting readers to draw the same conclusion: outrageous, arbitrary, transphobic sentencing exercise by another out-of-touch, paedo-hugging judge.
I’ll admit here to a very minor interest – I’ve appeared before HHJ Dutton at Chester Crown Court before. Soft on crime, he ain’t. Friends who practise in the north speak darkly of a “Chester uplift”; the judges at that court centre are not renowned for their leniency in sentencing. I will say with virtual certainty that Roger Dutton does not harbour affection for paedophiles. But nor does he exhibit a visceral loathing for non-cisgendered women, as is also crudely implied.
The problem that the judge faced is this: the Crown Prosecution Service chose, in its wisdom, to charge Gayle Newman with assault by penetration, contrary to section 2 of the Sexual Offences Act 2003. To get slightly technical, there was sexual penetration with an object, and although consent was given by the complaint at the time, the law (R v McNally  EWCA Crim 1051, considering sections 74 and section 76 of that Act) says that consent is vitiated by the fact that the defendant intentionally deceived the complainant as to her gender and therefore the nature of that penetration. Legally, the offence is made out.
And once the offence is made out, and once a jury convict upon it, the court is required to follow the Sentencing Guidelines set down by the Sentencing Council. The guidelines for assault by penetration are quite clear. And it is plain, reading them alongside the sentencing remarks, how the figure of 8 years’ imprisonment has been arrived at. This is not an arbitrary number plucked out of the ether – it is the recommended starting point for an offence of this type.
And the other offences trotted out by The Mirror – the paedos getting off lightly – will have been sentenced again faithfully to the relevant guidelines. The Mirror tells us little more about the facts of those comparators, but, assuming the Attorney General did not successfully refer them as unduly lenient to the Court of Appeal, they will have been sound sentences in law.
The problem, and it is nothing to do with this judge, is that given what we have been told about this case, it doesn’t feel like a case where 8 years’ imprisonment is proportionate. Although on the correct construction of the current law, the deception practised by Newland negated the complainant’s consent, it is perhaps more accurately painted as an offence of deception. And indeed, up until 2003, there was an offence (section 3 of the Sexual Offences Act 1956, seeing as you ask) of procuring sexual intercourse by false representation. Prior to the inception of the 2003 Sexual Offences Act, the Law Commission in fact recommended that the offence, or one like it, remain on the statute books. But Parliament for whatever reason elected not to, instead settling on an at-once vague and complicated definition of “consent” designed to embrace certain forms of deception.
There is an argument, of course, that this type of offence shouldn’t even exist. Where, the slippery slopists ask, does it end? If deception as to gender is an offence, what about deception as to transgender, or marital status, or income, or favoured shape of pasta? The reality is that each and every day people navigate the minefield of sexual relations accepting the risk – nay the inevitability – of certain playmates lying about their pasts, presents or futures. In sexual relationships, people fuck each other up emotionally with all manner of untruths. Should it be a criminal offence to do so? Should it, post-facto, vitiate consent? Thereby attracting the same custodial sentences, and the same stigma, as what the public would perhaps understand as “ordinary” non-consensual sexual offences?
I’m not sure, but what I do know is that if such conduct must be criminalised, the current legal position is entirely unsatisfactory.
As Ian Dunt pointed out yesterday, the state of the law is currently that a failure to disclose your HIV status does not vitiate otherwise-freely-given consent, whereas since 2013, and the case of McNally, it was been plain that deception as to gender does. Impersonating “a person known personally to the complainant” is also recognised as voiding consent, but falsely telling someone you’ve a day to live and your dying wish is for one last shag seemingly would not.
Instinctively I don’t think Gayle Newland should have received 8 years’ imprisonment, particularly when one looks at the comparable case of Justine McNally and her suspended sentence on appeal (although the personal circumstances of Newland and McNally appear quite distinct). 8 years is 3 years more than the maximum for inflicting grievous bodily harm without intent. If Newland had punched the complainant, who as a consequence fell, banged her head and ended up paralysed for life, she would not have received as long. But this is not the fault of the judges who sentence these cases – they are bound by the laws created by Parliament, the charging decisions of the CPS, the verdicts of the jury and the Sentencing Guidelines.
So, Daily Mirror, let’s please have a little less of the judiciary-bashing, and perhaps, if this case troubles you so much, some support for a sensible campaign for Parliament to review the increasingly-complex and blurred legal concept of consent? We wouldn’t want anyone to think you were just making cheap headlines out of a very sad and difficult case.