Monday, 15 April 2013

Is it a crime to be Transgender - Yes, it is, according to the ScottishHigh Court

In the High Court in Scotland, a transgender man, was sentenced to 3 years probation and 240 hours community service.

The man was charged and convicted of obtaining sexual intimacy by fraud.

The man did not reveal his gender recognition history to two female partners. When it was discovered that he was biologically female a complaint was made to the Police and he was subsequently charged with obtaining sexual intimacy by fraud.

The man was reported to have been 21 at the time and at least one of his partners was believed to be 15.

In Scotland, the Crown Office and Procurator Fiscal Service (COPFS) is the responsible body for prosecuting crime.

The COPFS is meant to act in the public interest and the reasons behind a decision to prosecute or not to prosecute are generally private.

The COPFS in making a decision, is meant to follow what is known as the Prosecution Code.

In this present case, a decision to prosecute on a different charge could have been made. However, this was not done.

Likewise, a decision could have been taken not to prosecute.

Taking this into account the COPFS has left itself open to accusations of transphobia.

The Equality Act 2010 and The Human Rights Act 1998

The COPFS is a public authority and as such, is not meant to discriminate, has to promote equality of opportunity and also to foster good relations between individuals who share protected characteristics.

It is not clear to what extent, if any, these obligations extend to or apply to the particular decision making process concerning whether or not to prosecute or what charge to bring in the event of a decision being made to prosecute.

The Equality Act does not extend to judicial decision making.

The COPFS is a public authority for the purpose of the Human Rights Act and decisions made in respect of prosecutions should be made in accordance with the Convention Rights and other International Law obligations.

Questions that arise

A number of important questions have been raised as a consequence of this particular prosecution.

1.  If the decision to prosecute or not to prosecute, is made in private with no reasons having to be provided, how can we be assured that that decision makers were not influenced by prejudice?

2.  Alternatively, if a decision is not made out of prejudice, could ignorance of this issues be involved - perhaps a series of wrong or false assumptions having been made?

3.  If the COPFS sought to act in the public interest, and followed the Prosecution Code, did it take into account the effect on the accused and the wider LGBT community? For example, reduced confidence in the judicial system by LGBT people and or more specifically creating a climate of fear amongst transgender people that if they do no reveal their full history to potential partners, they will face prosecution?

Scotland’s national transgender equality charity, The Scottish Transgender Alliance (STA), based at the Equality Network, warned that

“the nature of this prosecution has seriously undermined trans people’s trust in the Scottish criminal justice system.”

Nathan Gale, of the STA, has sought an urgent meeting with the Lord Advocate. Gale said:

“I sincerely hope that COPFS will understand the seriousness of trans people’s fears and respond to our call to take urgent steps to address them.”

Prejudice already exists

Transgender people already face a climate of prejudice and a lack of understanding.

It is conceivable, even if it was not intended, that such a high profile prosecution of this sort, will fan the flames of prejudice and actually create a retrograde approach to transgender equality issues in the broadest sense.

It has become too easy for people to read something, such as the BBC reporting of this case - which referred to the man in his birth gender rather than in his chosen gender - to assume that being Transgender is not real or some other form of sexual deviance because of the criminal prosecution in this present case.

Other news reports have also discriminated in this way. In one article, the man was described as a "sex fraud woman...".

The phraseology and use of language here is ignorant and dangerous. 

It creates a public perception that being transgender is not real - where women or men seek to impersonate for sex.

It also creates the false impression that being transgender is criminal. 

If the BBC and other media outlets can openly discriminate in this way, then it will only encourage others to do so as well.

No right to privacy?

Another interesting argument that has been presented by the Equality Network / Scottish Transgender Alliance, is that this prosecution creates a public perception that Transgender people are not entitled to their privacy.

The right to privacy is an important human right.

There can be exceptions and where there is a legal exception it has to be necessary and proportionate.

The exception also has to be applied equally across the board and not single out a particular group for special attention; in other words, any law permitting the exception should not discriminate.

A necessary and proportionate exception would include requiring someone who works with either Children or vulnerable adults to be a member of the Protection of Vulnerable Groups (PVG) scheme and have a Criminal Records Bureaux check. 

The above example of an exception, would apply equally to everyone.  It would not single out transgender people for special attention.

So why has the criminal law singled out a trans man for special attention in this case? 

Consider this hypothetical comparator, would a non transgender heterosexual male face prosecution for failing to reveal to his partner(s) his particular sexual history?

Similarly, would this hypothetical male also face prosecution for failing to reveal intimate details of his personal and private medical history to each and everyone of his partner(s)?

I believe that the answer to both questions is a resounding no!

Taking this into account, why then, should a transgender male, not be afforded the same right to privacy as the hypothetical comparator described above?

Different treatment for transgender people

This Equality Network highlights the differential treatment in this case by using a tangible comparator; 

"As a comparative example, a 31 year old man who had sex with a 14 year old girl who had claimed to be over 16 was prosecuted at the Sheriff Court and also sentenced to 240 hours of community service, whereas Wilson’s case was prosecuted at the High Court, reserved for the most serious offences. This lends weight to the STA’s claim that Wilson’s fraud prosecution was 'a completely inappropriate charge.' "

In my view, this is where the COPFS fails the public interest test.

As the prosecuting authority, it is bound to operate the same standard, whether gay or straight, trans or non trans.

It is not in the public interest to single out one particular group for special attention.

It is also not in the public interest to single out trans men or trans women for prosecution because they expect the same degree of privacy regarding their private lives as anyone else.

The prosecutor should also know, or ought to know that transgender people may feel isolated and marginalised and not know how or where to access support services.

These issues and others, such as the negative impact of the prosecution, should have formed part of the COPFS thinking in applying the Prosecution Code and then in their decision to prosecute. 

Questions - but for an appeal

I was not party to the full details of this particular case.

Hypothetically, if an appeal was raised, the Court could be asked to answer some of the questions posed by this article, for example the privacy issue.

A full analysis of the general law is outside the scope of this particular article, but other commentators have suggested that the offence of obtaining sexual intimacy by fraud may not actually exist as part of the Scottish statutory sexual offenses framework.

Stephen Whittle, Professor of Equalities Law at Manchester Metropolitan University, analyses this point in his blog article entitled "Chris Wilson: Convicted because of his Clothes"

If this is the case, and the COPFS is further challenged, it may offer another avenue for appeal.

If there is no offence, then there cannot be a prosecution.

In this case, one would have to ask, why did both the COPFS and the High Court allow a prosecution? Ignorance of the issues or prejudice?

There are also questions about the cross over between equality / non discrimination law and the criminal law.

Usually, in these cases, the Scottish Parliament has passed new legislation to rectify problems as and when they do arise. This has been the case with sexual offences to date, for example, making them gender neutral.

This does not mean that all of Scots criminal law has been updated; just the more obvious examples.

The majority of the criminal common law predates our non discrimination law and therefore it could be argued that existing criminal law - at common law at least - has to be reviewed again.

However, these are mute points.

There is one major stumbling block to any appeal here - the accused pled guilty.

The guilty plea has provided the COPFS and the Court with the perfect cover, even if mistakes have been made in this case.

Unless an exception can be made, and it is not beyond the realm of possibility, there will be no appeal and the questions posed concerning the legitimacy of the charge and a Transgender man's right to sexual privacy will go unanswered.

Other legal options available

It is still possible for the matter to return to Court. 

The Lord Advocate, could ask the Court to determine to true application of the criminal law in relation to a transgender people's right to privacy, taking into account the now developed jurisprudence of both Human Rights and Equality Law. 

This procedure, is known as a Lord Advocate's Reference.   

As a matter of Civil Law, anyone who now feels that the law discriminates against them, is entitled to seek as judicial review. 

In these circumstances, it may be possible, to ask the Court of Session - Scotland's Civil Supreme Court - to issue a special order known as a "declarator of incompatibility". 

If such an order were issued, the Scottish Government and possibly the Lord Advocate, would be required to act. 

Lessons for the future

Whatever happens in the future, the COPFS and Police will have lessons to learn from this case.

The Equality Network has been vocal in its criticism of the COPFS in this case and rightly so.

A petition has also been presented to the COPFS and a meeting sought with the Lord Advocate about the issues raised as a consequence of this prosecution.

In my view, this prosecution has set a dangerous precedent - in effect making it a crime to be Transgender.

No comments:

Post a Comment