When “Gender Deception” Is a Crime
A girl is in love with a boy who has the winsome name of Kye Fortune. On Facebook, Kye is cute and muscular: he posts videos of him dancing and the lyrics of romantic songs he’s written. It’s 2011, and they are students in northern England. Kye and the girl go to the same university, but they have never met in person. Instead, for a year and a half, they talk on the phone every day for hours. Kye sends the girl an “eternity ring” that she takes as a marriage proposal. But, whenever they plan to meet, fate intervenes. First, Kye is in a car accident, and then doctors find a cancerous tumor in his head and he has to go in for surgery.
The girl’s best friend, Gayle, is childhood friends with Kye, and Gayle agrees to help the lovers meet. But Kye is insecure about the scars on his chest and on his head, so the girl agrees to blindfold herself with a silk scarf before meeting him. On Valentine’s Day, Gayle, the diligent wingwoman, drives Kye to the girl’s house, and he and the girl share a kiss. The girl can feel his hands shaking.
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Though Gayle is white and Kye is of Filipino descent, in other respects they are strikingly similar: the two have the same birthday, work at the same gym, study the same double major (marketing and creative writing), and speak in the same voice, though they have two different phone numbers. Sometimes the girl calls Gayle and talks to her, and sometimes she calls Kye and talks to him. And sometimes a text message that comes from Kye’s number refers to him in the third person—“He wouldn’t ever do anything purposely to upset you”—as if, actually, the message came from Gayle.
Kye and the girl start to meet once or twice a week in the girl’s apartment, watching TV and cuddling and getting takeout. The girl says that she was blindfolded during every single one of these hang outs, and that she heard, rather than watched, the TV. The meetings are lazy and blissful: they can spend an entire day just lying on top of each other. They have what the girl later calls “normal boy and girl sex.” The girl says that Kye is the love of her life. She can’t wait to be “Mrs. Fortune.”
On a Sunday in June of 2013, two years into their relationship, Kye comes over to the girl’s apartment and they have sex. The girl, still blindfolded, reaches for his head. Her eternity ring catches on his wool hat, and as the hat slips her hand touches long silky hair—“like a Barbie doll’s,” she says later. She rips the blindfold off and sees her best friend, wearing a dildo. The girl asks Gayle what the hell she is doing. Gayle asks the girl what she means.
Gayle recalls this moment differently. She says, for example, that the girl was not blindfolded. She says that Kye—an online persona she had maintained for over a decade as what she describes as a “coping mechanism”—had been brought to life as a “role play” that she and the girl jointly authored in order to be together while keeping one foot in the closet. In the days before that Sunday, they had argued, because Gayle wanted to come out to her parents. As they finished having sex, the girl suddenly started screaming. “She just switched,” Gayle says.
The girl runs into the bathroom. Per a recording, she calls 999, the British emergency number, but then tells them it isn’t an emergency. She pushes Gayle down the stairs. They go out into the street and have a heated argument—the video, though not the audio, is captured on CCTV. Gayle gets in her car and drives to a nearby bridge, where she jumps into a canal. The police find her wet and shivering, having hurt her ankle in the short fall.
“You are sick,” the girl texts Gayle.
“I love you,” Gayle texts the girl.
In the days after the fight, the girl gets an e-mail from Kye’s address. “You’ll never understand what it is like to be physically unable to be yourself,” Kye writes. “And to live as someone that isn’t who you were meant to be. With you I never intended it to go this far. It turned from a seed to a tree and I was stuck. Every day I felt guilty, but I couldn’t leave you, as you needed me.” A few hours later, the girl goes to the police to report that her best friend has repeatedly raped her.
The discrepancies between the two friends’ stories are striking. Setting aside the existence or nonexistence of the blindfold, there is, for example, the story of how they met. Gayle recalls that she met the girl at a “gay night” at a bar (the theme was Gender Blender), and that the girl was the first person she ever came out to, after which they bonded over both being in the closet. The girl—British law prohibits the release of the name of a complainant in sexual-assault cases—acknowledges that she frequently went to such events with a gay male friend. But she says that she and Gayle met at a library, and that, though they never discussed their sexuality, she assumed that Gayle was straight, “normal,” like her. “She’s dangerous,” the girl later told the police. “She’s mental. She could do this to someone else.”
In “The Bed Trick: Sex and Deception on Trial,” a new book about the 2015 trial and 2017 retrial of Gayle Newland, the British writer and editor Izabella Scott goes to some lengths to avoid calling either Gayle or her ex-best friend “mental.” Scott is wary of the antagonistic structure of a sex-crime trial, which may or may not get at the truth but certainly makes everyone look bad along the way. She worries about the narratives put forward by the respective lawyers: that Gayle is a scheming lesbian who for years manipulated her naïve friend, or that the girl, whom Scott refers to as Miss X, is a false victim, raking her friend through the legal coals in order to prove to herself and to the world that she is one-hundred-per-cent straight. In both narratives, Scott remarks, “there is a conniving woman.”
In contrast, Scott tries “to be on both their sides.” Like Gayle, Scott is a lesbian, and she is sensitive to the disgust-driven criminalization of queer desire. Like Miss X, she is a former complainant in a well-publicized sex crime (an attempted rape while she was on vacation in India), and she writes movingly about how an initial violation can be compounded by a lack of power over one’s story. Scott’s efforts to “create a scenario where neither are lying and where both stories can be true” make “The Bed Trick” a strange kind of legal drama. The usual pleasures of reading about the courtroom—the vicarious thrill of being both detective and jury—give way to the slower burn of cultural analysis. Scott treats the tale of Gayle and Miss X as a rich and layered text, in which the inconsistencies are not lies to be triumphantly exposed but symbols to be recursively interpreted.
The titular bed trick refers to the literary device, beloved by Shakespeare and by opera buffa, in which a lover sneaks into a bed and, under cover of darkness, is taken for someone else. The situation was often played for laughs, but Scott argues that it touches on basic insecurities, about how well we know our lovers, and how interchangeable lovers and their parts really are. Miss X, for example, says that she had sex with Kye about twenty times. She never realized that the penis in question was rubber rather than flesh—she thought its texture came from a condom.
The widespread adoption of electricity robbed the bed trick of its fictional heft, but the telephone and the internet have enabled new forms of sexual deception. The term “catfish” was coined by a documentary of the same name from 2010, just before Gayle and Miss X began exchanging messages. “Catfish” follows a twenty-four-year-old named Nev Shulman who starts up an online flirtation with a woman his age. Nev discovers that he has actually been sexting with Angela, an apple-cheeked middle-aged mother who spends her days caring for her two disabled stepsons. When they eventually meet, it’s clear that their bond was not entirely spurious: the encounter is fraught with longing on Angela’s side and a confused shame on Nev’s. If you fall in love with a person’s invented self, the documentary asks, have you, in a way, fallen in love with that person?
Absolutely not, Miss X says. “If I’d known that there was a woman with a strap-on, having penetrative sex with me,” she testified, “I would not have carried on.” And: “I cannot believe that I was sleeping with a woman this whole time. I just can’t. It makes me feel sick.” In court, she was visibly distressed by the presence of a bright pink dildo, which was brought in as an exhibit. “You think it’s hilarious!” she told a solicitor. “You think this bad movie here that’s my life—you think it’s a joke.” She told the police that she would rather have been raped by a man. Scott speculates that this “preference for heterosexual rape” may stem less from homophobia (in the most literal sense) and more from from Miss X’s anger at a specific woman’s lies. Miss X, after all, recounts a double betrayal. It’s not just that her fiancé “died” that day, as she described it to the police. It’s that her best friend killed him.
Kye had been a “dream guy”—different from other boys. Miss X explained that she had gone to “Gender Blender”—where Gayle claims they met—not because she was gay but because she enjoyed being able to go out without getting hit on by straight men. She fell for Kye because he was “sensitive”; he liked rom-coms and poetry, and he took Valentine’s Day seriously. “Guys don’t really, you know, think the way I think,” Miss X recalls Kye saying. “They wouldn’t be able to empathize with you the way I can. I get it. But, you know, I work out, I’m still a manly man, I could look after you. You’ve got the best of both worlds.”
I was reminded, in reading this, of “Shinjuku Boys,” a 1995 documentary about three handsome onabe, trans-masc employees at a Tokyo bar where young women pay to drink and flirt and sometimes do more with the besuited hosts. The documentary argues that, for the “ordinary girl” who frequents such bars, onabe are the “ideal” men—male enough not to threaten the customers’ idea of themselves as heterosexual, female enough to be beautiful. When they have sex with customers, onabe give but never receive. “It’s a mental thing,” one of them says. “If this girl is letting me do this, then I’ve fooled her. . . . In other words, she has accepted me as a man, and I feel relieved.” In Gayle’s version of events, she and Miss X jointly created the masculine ideal of Kye to serve a similar purpose. Gayle recalls how comforted she was after their shaking first kiss, when Miss X referred to her by his name.
In order to preserve the illusion of a male body, onabe don’t take off their clothes. Gayle also appears to have worn some sort of cloth barrier between herself and Miss X, what Miss X recalls Kye describing as a “circulation suit” intended to keep in the wires and “nozzle” that had been attached to his chest during his surgeries. (It was, he said, the only way he could leave the hospital to come see her.) When the police found Gayle after her leap into the canal, she was wearing a swimsuit underneath her street clothes.
In Leslie Feinberg’s 1993 novel “Stone Butch Blues,” the butch narrator, Jess, picks up a waitress named Annie who, like most people, takes Jess for a man. Maintaining this impression during sex requires Jess to go to the bathroom for costume changes involving a dildo and a pair of socks that stands in for a flaccid penis. Annie is deeply touched by Jess’s consideration and skill as a lover. But Jess knows that it can’t last. Annie hates “queers,” who she believes are pedophiles. “Sooner or later, it was going to blow up,” Jess muses, before saying goodbye to a wistful Annie.
This one-night stand is a distilled version of the years-long entanglement between Gayle and Miss X. Annie was attracted to Jess’s personality and appearance, and experienced the sex they had as pleasurable and unusually respectful. But, like Miss X, Annie would not have knowingly consented to queer sex. Was it an affront to Annie’s bodily autonomy for her to believe that she was having sex with a penis when she was actually having sex with a dildo?
The legal theory behind this idea is known as “rape by deception.” In both the United Kingdom and the United States, these cases have historically been brought in extremely narrow circumstances, typically against doctors who penetrated their patients under the guise of medical treatment, or against men who had sex with a woman by pretending to be her husband, a classic variant of the bed trick. In almost every other case, you can lie to a sexual partner, or even betray them in a devastating way, without committing a crime. It’s not illegal to lie about your age, your wealth, or your feelings about the other person. Nor is it generally illegal to seduce someone using an entirely fabricated persona. In the past decade, British prosecutors have declined to bring charges against the so-called Spy Cops—undercover police officers who, while posing as activists, slept with at least fifty women, and in some cases fathered their children.
For centuries, a situation like that between Jess and Annie would have been outside the very realm of sexual-assault laws, which understood the crime as something that could be committed only by men. Scott describes a number of eighteenth- and nineteenth-century legal cases brought against “female husbands” by wives who had been duped in the bedroom, presumably by the use of prosthetic penises. The accused were sometimes seriously punished—stripped and whipped in a town square. But they could be prosecuted only on catchall charges: vagrancy, perjury, or breach of the peace.
Feminists in the last third of the twentienth century successfully fought to expand the reach of sexual-assault laws in the U.S. and the U.K. They made spousal rape a crime. They worked to change our understanding of rape as something defined not strictly by the presence of force but also by the absence of consent. In 2003, the U.K. passed the landmark Sexual Offenses Act. This law made sexual assault a crime that could be committed by people of any sex—through penetration by a penis, dildo, tongue, or finger. And it reframed rape by deception around consent, which it defined as agreement by a person “with the freedom and capacity to make that choice.”
The new consent paradigm opened up the possibility that many other forms of deception might strip a person of the capacity to freely choose and so turn apparently consensual sex, post hoc, into rape. Some legal philosophers argue that any lie can invalidate the sexual contract and violate the autonomy of the person who was lied to. The problem, of course, is that lovers are lying to each other all the time. We lie about our interest in astrology or bitcoin or a particular musician to attract a potential lover. We pretend to be better than we are: we fail to mention illnesses, debts, and arrests. We say that we are faithful when we are not. Can it really be that sex under any of these misapprehensions is rape?
In an essay from 2013, the Yale Law professor Jed Rubenfeld concluded that the only way out of this conundrum was to abandon consent and return to a force definition of rape. (Rubenfeld was later accused of sexually harassing students; after an investigation, Yale suspended him for two years.) In response to this provocation, legal scholars have spilled much ink trying to draw a line around exactly what kinds of lies make sex fraudulent. In the United States, where sexual-assault laws vary by state, the debate remains active. Feminists in New York recently pushed for a bill that would redefine consent as “knowledgeable and informed agreement” obtained without “fraud, concealment, or artifice.” Queer activists worry that laws like these would criminalize trans people who don’t choose to explain their gender history, or extend the number of states that make it illegal not to disclose untransmittable H.I.V. Such laws might also have the effect of recriminalizing adultery.
Characteristically, Scott avoids taking any hard stances. But her examples make clear that the interests of the powerful have always determined what kinds of lies are deemed to invalidate sexual consent. In twentieth-century United States, during a peak in racial essentialism, courts heard the cases of spouses who sought to have their marriages annulled because they had been deceived about their partner’s race. One woman who thought her husband was “Spanish Catalan” brought a case when she found out he was Filipino. In 2010, a married Muslim Palestinian man was convicted by an Israeli court—and went to jail—for having had sex with an Israeli woman while representing himself as a Jewish bachelor.
In England, the Sexual Offenses Act has selectively expanded what counts as sexual fraud. The precedent for Gayle’s trial stemmed from a 2013 case involving a seventeen-year-old named Justine McNally, then living as a boy, who had sex with a sixteen-year-old girl who later claimed that she did not know McNally had been assigned female at birth. McNally was charged with assault on the basis of “fraudulent deception” for presenting as a “male.” She pleaded guilty on the advice of her lawyer, and was sentenced to three years in jail. Then she appealed, claiming that she and her accuser had dated for three years, and that it was actually the complainant’s mother who had first raised the alarm after finding a dildo in a backpack. In its decision, the Court of Appeals set what became known as the McNally principle. It found that McNally had been deceptive, and that gender deception was one of very few lies that could render consent impossible. The others involve condom use and ejaculation.
The shortness of this list leads to an odd conclusion. If Gayle Newland had been a cis man who had seduced Miss X by pretending to be Kye Fortune, the case would have fallen outside the McNally principle, and Miss X would have had very little chance of having her complaint heard. For every hundred rape complaints brought to the police in Britain, charges are filed in only one or two. “Is the dildo more guilty—more prosecutable—than flesh?” asks Scott, who tends to make her most biting points in question form.
One day, we might think less severely about someone lying to a sexual partner about their sex assigned at birth. In the UK, however, that day is not today. Since the McNally principle was implemented, according to research by the law professor Alex Sharpe, there have been nine prosecutions in the U.K. against lesbians or trans men who were charged with “gender deception.” All of them, including Gayle, were convicted. She was sentenced to eight years, reduced in the second trial to six, and placed indefinitely on the sex-offender registry.
“You should be locked up for what you’ve done,” Miss X texted Gayle on the night of their rupture. “I hate myself,” Gayle texted back. And then, “I said lies to hide lies but I didn’t lie about everything and it was me and still is.” ♦