Tough Questions: It’s Shitty, But Is It Sexual Assault?


While scrolling through my news feed, I came across an article in the Austin Daily Globe that caught my eye for its transphobic wording. The caption under the thumbnail read “A woman who blindfolded herself during sex with her ‘boyfriend’ was shocked to learn that it wasn’t a man at all”.

Aaaarrrrgghhhh. It? Really? I clicked on it, expecting to read and rail against some transphobic garbage about a trans-man waiting a while before revealing his gender identity to his girlfriend.

Instead, I proceeded to read a story that was so bizarre, I made sure to check that it was reported by several other news outlets before talking about it here.

 

Apparently, a woman met a man online who identified himself as Kye Fortune. This man has multiple social media accounts, and was an all-round lovely person. They eventually form an online relationship but they did not meet, as Kye lived far away and explained that he was very shy because he was disfigured by having undergone multiple surgeries. When they finally did meet he asked her to wear a blindfold, as he was still grappling with his insecurities over his physical disfigurement. Their relationship became sexual, and eventually they even got engaged.

During this two year long relationship, this woman also met a friend of Kye’s, named Gayle Newland. They also became good friends, as they had this man in common and also seemed to share many interests.

Do you see where this is going?

One day, when having sex, something seemed off. The woman finally took off her blindfold, only to discover that her fiance was none other than Gayle, her female friend. She was shocked, sickened, and pressed charges against Gayle, who was eventually found guilty of three counts of sexual assault.

Hmmm. That certainly is a tale to digest.

The first reaction is, how could she not have suspected something sooner? I want to steer clear of the victim blaming however. After all, people have fallen for the Nigerian Prince email scheme, and I don’t think they deserved it for being gullible and vulnerable. Hindsight is always 20/20, and of course we do not know all of the details of how she fell for “Kye”, or how much her desire to be loved had clouded her judgement.

In court, Gayle Newland claimed that there was no blindfold, that they were simply role playing because the woman (who has not been identified) was struggling to accept the fact that she was gay. Well, this story is so bizarre that that scenario is just as plausible as the victim’s side of the story. I hope that a proper investigation was conducted before Gayle Newland was tried and sentenced. Either way, for the sake of argument, let’s take the victim’s side of the story to be true.

The question is, does misrepresenting yourself for sex rise to the level of sexual assault?

If a man pretends to be a famous athlete or movie star to get a woman in bed, is he committing sexual assault? If a woman pretends to be a rich and powerful businesswoman and implies that she can help your job prospects, is she committing sexual assault? If someone enters into a relationship under false financial pretenses, are all sexual encounters within that relationship retroactively considered non-consensual? I think the gut reaction to that is “no”. In that case, is there any form of misrepresentation that arises to the level of sexual assault?

I think there is. For example, if two people decide they want to have sex, then one waits for the other in a dark room, and a third person enters and has sex with them unbeknownst to the victim, I believe that is sexual assault. That person did not consent to have sex with that other person, and consenting to a sexual act does not mean consent to a sexual act with anybody who happens to be there.

So thus the question becomes, does this specific case more closely resemble the first set of scenarios, or the second one?

The victim in question did not consent to sex nor to a relationship with Gayle Newland. However, the person she did consent to was a fiction. Kye Fortune did not exist, but rather was a male version of Gayle Newland. So, is misrepresenting your gender as bad as misrepresenting who you are?

For me, this is a very tough question. On the one hand, assuming that misrepresenting your gender is such a gross violation as to automatically rise to the level of sexual assault feels icky, and very cis- and hetero-normative. On the other hand I want to empathize with the victim, and I understand that she must feel greatly betrayed and humiliated by the whole thing.

All in all, I feel that Gayle Newland should be found guilty of something. She went to extraordinary lengths to con this woman into thinking that Kye Fortune was not only a real person, but a separate person from herself as Gayle Newland. However, I don’t think the conviction should be sexual assault. Rather I would think she is guilty of fraud, or some similar kind of crime.

No matter how you slice it, I think it is definitely a tough one.

So, what do you think? Is it just shitty, is it fraud, or is it sexual assault?

Comments

  1. Siobhan says

    The question is, does misrepresenting yourself for sex rise to the level of sexual assault?

    Legally, in the United Kingdom, “rape by deception” laws have been successfully brought against several gender-ambiguous people. So, legally, the case law answer might be “yes” for Brits. The trick is all of the defendants tried under these laws: 1) Never clearly identified as transgender; 2) Were all rural and isolated and never disclosed that they were questioning or trans or gay or whatever the case may be. Both matter, because in urban areas the general consensus is “disclose in public before sexual contact” which ought to deflect accusations of rape by deception, and urban centres often have LGBT support resources which can coach on these sorts of issues. The defendants who have been prosecuted in this manner never had any such support, and nobody who has clearly identified as trans has ever been brought to court under these circumstances.

    It’s worth noting that regardless of the questionable ethics, there was a blog that extensively studied the judges’ logic in all three rulings. I can’t find the blog, which is upsetting, but it revealed through court transcripts that there is still a tremendous anti-queer animus by all the judges who presided over these cases. The author of the blog concluded that case law could even be brought against a trans rape victim who could be charged with “rape by deception” after being the one assaulted and the only thing stopping that from happening is “prosecutorial discretion.” It’s also rather unclear if a homophobic gay or questioning person can turn around and charge their experimental partners with rape after they’ve been found out… the finer points of Newland’s prosecution have never been made public, but their side of the story is chilling as fuck if even partially true. Basically the whole thing is a massive civil rights clusterfuck and every time British trans and queer folk have asked for clarification the government has shrugged and said it’s “all case by case.” Not. Comforting.

    Part of the trick here is that when you perceive a trans person as one sex, that’s not “deception,” or at least it shouldn’t be understood as deception. But if a more clear cut case ever hits the courts and they rule against the defendant, then yeah, British trans people get to “enjoy” a whole new type of legal repression as walking “rapists by deception” who are under legal obligation to disclose their gender history as soon as the vaguest overtures of interest are received from bigoted cis people. I’m sure that’s never ended poorly.

    You know what else is particularly stunning? “Rape by deception” has been defeated against people who were lying about their STI status (HIV excluded) in the UK.

    That’s right, being trans or gender questioning is considered worse than having an STI. You can lie about your age. Your job. Your criminal background. Your religion. Your ethnicity. Your physical health. And there are certainly people for whom one of these categories contains dealbreakers. The courts have only singled out HIV+ and trans. Hence the accusations of anti-queer animus by the judges.

    I live in a very tolerant area of my city, and always self-select my dating with other queer people, and I still have to plan my disclosures meticulously. I can’t imagine trying to work around a legal obligation with restrictive circumstances and severe consequences thrown in.

    • thoughtsofcrys says

      Yea, you’ve convinced me that these “rape by deception” laws need to be seriously revisited. If you have a murky quagmire which basically allows any one judge to decide for themselves what is and is not rape, you guarantee a society in which the people who are already the most disenfranchised to be the only ones punished for simple virtue of their being different.

  2. Pierce R. Butler says

    … people have fallen for the Nigerian Prince email scheme, and I don’t think they deserved it for being gullible and vulnerable.

    You can make a pretty good case that they – and the victims of many other frauds – “deserve” (gawd, what a loaded word!) it for their greed.

    As for the Gayle N situation, I agree that the lies and general skeeviness don’t add up to assault (except perhaps psychologically), but have no idea about the present status of the law on misrepresentation for sexual exploitation. Unfortunately, it seems these days the only legislators and judges willing to wade into such murk come from the ranks of hyperchristians and their ilk, the very last people we want establishing control over our sex lives.

  3. says

    I don’t know about the legal issues, but it definitely wasn’t right. Gayle received consent through deception, and probably won’t have gotten it if she were honest.

    The story is unusual, but sometimes the need for love overrides rational thinking.

  4. says

    If there isn’t informed consent, then it’s rape. I thought we all knew this by now. As for your gut reaction being ‘No’, mine was ‘Yes’, and ‘come on, how does manipulating someone into sex by withholding facts and/or lying about them not equal rape?’

    You’re saying that somehow a person is less hurt by an event by learning about it post facto? Tell that to someone who is told their partner died in a car crash yesterday.

    Sure we could just grade distress in levels, but I thought that we in the progressive bits of the internet were all about preventing the distress and finding ways to assist, not saying that people have no right to feel violated if it isn’t immediate, violent and horrifying.

    • thoughtsofcrys says

      Just to be clear, you’re saying that you do think that pretending to have more money than you actually have when chatting someone up does equal rape?
      If that is so, then if a trans-person does not reveal that they were born a different gender than they are now before a sexual encounter, is that also rape? Because, from some comments here it seems these UK laws are used to criminalize trans people, and I personally dont agree with that

      • says

        This is a tricky question. I hope to be a trans ally in my conduct, but informed consent is informed consent.

        Yes, society should stop giving a fuck and respect people for who they are. This is a separate issue to this narrow case.

        If you portray yourself as K, while you are A, just to have sex with someone, then how can that someone give informed consent? Just because someone is trans, can they decieve people into sex? Yes, it’s fucking awful to be a trans person in this society, yes society needs to change.

        As to money, I’ve seen this arguement a couple of times. It boils down to a slut shaming blame the victim anti-sex worker arguement. Person A will only have sex with Person B if B is rich. Okies, two divisions, A is a prostitute of some kind, and you’re essentially saying that prostitutes can’t be raped. Really?

        Second is A is a money grubbing, gold digging, completely unpleasant person. Then the arguement is that because they’re an unpleasant person it doesn’t matter if they’re raped, because, of course, they’re an unpleasant person.

        Neither are valid arguements. If informed consent is not agreed on, then it’s rape.

        And yes, this means two people can rape each other. It’s just far more likely that one person’s trust and body is being violated.

        • thoughtsofcrys says

          I think that there must be a fundamental breakdown of communication happening here. How on Earth does anything I said follow logically to prostitutes can’t be raped?? Yes, prostitutes are human beings with their own minds, and thus they can be raped. Obviously.

          Basically, what I am saying is that I think that it is rape if you don’t consent to performing a sexual act on or with a specific person. If a prostitute is forced to commit a sexual act on a person without his/her consent, that is rape. However, that does not mean that not knowing every personal detail about the person you are having sex with beforehand = rape.

          IMO, consent is about the sexual act in question, and the identity of the person you are having sex with. I think that expanding that definition to encompass any aspect of that person’s personal life sets a terrible precedent. Oh you look white, but now I discover that you have a black parent! I would have never had sex with you if I had known you were half-black! You raped me! Oh you drive a fancy car, but it turns out you were just borrowing it from your dad and it’s not yours? I would have never had sex with you if I had known you didn’t own the car! You raped me! That doesn’t mean that these scenarios would happen often, I am sure they would be quite rare. Instead, I think that defining consent to mean not knowing any one personal detail about them before the act is most likely to harm the people that are already the most discriminated against in our society, like trans-people.

          For me, consent works a little something like this:

          Person A: Hi, I’m A. Would it be alright if I kiss you?
          Person B: Yes, it would.
          Person A: That’s nice. Is it OK if we undress?
          Person B: I’d rather not. Let’s just stick to kissing for now. Maybe later
          Person A: OK then.

          etc. etc. Consent to kissing does not = consent to further sexual acts. Each act needs to be consented to by both parties. The end, regardless of whether one of those two people is a sex worker, that makes no difference. I don’t think that’s a strange stance to take on this topic, even in these “progressive bits of the internet”.

          P.S. As for your comment on trans-people. While I do not want to presume to speak to them, that same gut of mine takes issue with your comment “If you portray yourself as K, while you are A, just to have sex with someone, then how can that someone give informed consent?”. A trans-woman is not portraying herself as a woman just to have sex, she is a woman. Not knowing that she happened to be assigned to a different gender at birth before you have sex with her does not, in my opinion, mean that she raped you when you consented to have sex with her.

  5. Jessie Harban says

    I think it does count as rape by deception, because she didn’t simply lie about her gender— she went to great lengths to explicitly establish “Kye” as a separate person from “Gayle,” so you can’t just say he’s a “male version” of her.

    You can’t take extraordinary measures to establish a fictional persona as being a real person who is definitely someone other than you and then claim that consenting to sex with the persona automatically counts as consenting to sex with you. Gender has nothing to do with it except tangentially.

    • thoughtsofcrys says

      I think that’s what it comes down to, though. From the way it was reported, the case revolved around whether or not the victim knew that Gayle was female. If I were the judge, I would be far more focused on evidence regarding how much Kye was different from Gayle. As in, is Kye just the representation of Gayle’s gender fluidity, or was Kye a complex persona used to scam a poor woman into thinking she was in a relationship, like those online scam artists who pretend to be a war vet looking for love when they’re really just some dude in Arkansas looking for money. Either way, I double down that Gayle should be found guilty of something, regardless of whetheror not it is rape

      • The Mellow Monkey says

        As in, is Kye just the representation of Gayle’s gender fluidity, or was Kye a complex persona used to scam a poor woman into thinking she was in a relationship, like those online scam artists who pretend to be a war vet looking for love when they’re really just some dude in Arkansas looking for money.

        From my reading, Kye was Filipino and Latino while Gayle is white, and Kye had a complex medical history (car accident followed by a diagnosis of brain cancer) that the victim emotionally supported Kye through. A complex medical history that did not exist. This was absolutely an entirely separate, unique person to the victim. The transphobia involved in the reporting and prosecution of this case actually ends up masking the true violation. The victim didn’t consent to have sex with someone who was different from what she was told: she consented to an entire relationship with a person who was not Gayle. And this is clear because she was friends with Gayle as well.

        Since Gayle was so demonstrably a separate person from Kye to the victim (and the victim “knew” them both and saw them as different people), the victim was not consenting to sex with Gayle only she thought Gayle was a cis man. She wasn’t consenting to sex with Gayle at all.

        The transphobia can’t be separated out from how this story developed, but any scenario creating the same violation absent the issue of gender looks a hell of a lot like sexual assault to me.

  6. agender says

    Maybe it should be fraud or something else in the civil law, to show that to go to such length to deceive is not an acceptable way people should treat each other.
    But as soon it comes to the PENAL LAW – no, to employ it cannot be acceptable for us. It is the faithheads which make use of the penal law (s, plural, of any country) to shove their worldview down everybody else´ s throat.
    It was not violence, it was no risk for an unwanted pregancy (and the financial burden to travel far and wide to obtain an abortion), the socalled victim has no problems obtaining and paying expensive medicine for a long time….
    To keep people who assault, bully, blackmail…. behind bars and stop them to repeat THIS SHOULD be the role of the penal laws.
    This from my point of experience, because it is very simple to understand “I am not interested at all” and leave me in peace, and anything else is trying to force me into a situation which will cook up my PTSD, and where I do not feel anything desirable. But then, I do not lknow about abovementioned websites at all.
    I am the embodiment of minimalism in the field, and wish the penal laws would AT LEAST work in such clearcut instances – to mix it up means that some religious worldview is creeping or being shoved in – to the detriment of victims.
    The civil laws are much more able to cope with degrees, skewed “relationships” or not met expectations for such.
    (I do share the “feel”, Crys. There is something wrong with this Kye/Gayle person, very reckless towards his/her(?) sexual partners.)

  7. Mattmon666 says

    If, during a sexual encounter, a person says “no, stop”, and the person doesn’t stop, then it is sexual assault. But if the person does stop, then it is not sexual assault.

    So the only relevant conditions are, 1. upon taking the blindfold off and finding out that the person was Gayle, did she say “no, stop”? 2. And if she did say that, was the plea to stop followed? If yes to both questions, there was no sexual assault.

    • thoughtsofcrys says

      Mmm I’ll have to disagree with you there. It is not sexual assault if the person stops after you ask them to IF you consented to have sex with that person in the first place. Take the example I gave about someone waiting in a dark room for someone to have sex with, only to then be tricked into having sex with a completely different person. That is sexual assault regardless of whether or not they were asked to stop, because they never got the consent in the first place.
      Having saying “no stop” as your only metric for sexual assault also means that you also disqualify people who were raped while unconscious as being victims of rape. Rape should be defined as an absence of consent, not as a continuation after hearing the word “no”.

  8. Mattmon666 says

    This is a complete misunderstanding of what consent is. If you go ahead and have sex with the person, and don’t take any steps to stop it, then the assumption is that consent was given. You did consent to have sex with the person, just from the fact that the sex happened of your own choice.

    Now, after learning that you’d been tricked, then you would probably be angry enough to not consent to sex with the other person, the one that put you up to this situation. That’s not anybody else’s problem.

    When you’re making out with a person, you don’t have to specifically state that the sex can continue happening, you just let it happen at a pace that you are comfortable with.

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