In a bizarre, sad and conflicting case, a woman has been sentenced to eight years’ imprisonment for duping a woman into sex by posing as a man. Gayle Newland, 25, was found guilty on three counts of sexual assault against a female friend, also 25, who identifies as straight.
In his sentencing remarks, Judge Roger Dutton told the marketing manager at Chester Crown court that she was ‘scheming’ ‘deceitful’ and ‘highly manipulative’.
Newland had been using bandages to bind her breasts, a swimming costume to eradicate her curves and a ‘prosthetic penis’ to have sex with her victim.
Using the pseudonym of ‘Kye’, ‘he’ would tell the victim to wear a blindfold when they were together, even while watching TV or sunbathing, explaining he’d had life-changing brain surgery that had left him insecure about his looks.
After having sex around 10 times, the victim suspected Kye was not who he said he was, that ‘something didn’t feel right’, so took off the blindfold and discovered ‘the evil truth’.
Newland’s relationship with Kye Fortune was ten years old. She’d created the false identity to talk to girls online when she was 13 and struggling with her sexuality. A psychiatrist in the case found she has five major psychological issues: social anxiety disorder, generalised anxiety disorder, major depression, obsessive compulsive disorder and symptoms of eating disorders.
By 15, Newland had created a Facebook profile for ‘half-Filipino, half-Latino’ Kye, using images she’d stolen from an American basketball player’s Myspace page.
After catfishing another woman who eventually sussed out Kye’s real identity, by 2011, Newland then used the Kye account to pursue a friend, a fellow student at the University of Chester, who already knew her as Gayle. After two years of first making contact, Kye met the victim in person in 2013.
The pair spent more than 100 hours together, the court heard, and eventually they had what Newland called consensual sex. She claimed they both were struggling with their sexuality so used this role play – including the dildo and the blindfold – to deal with it.
The victim stated that this sex can’t have been consensual, as she did not play a game, and consented to sex with Kye, not Newland. She wanted to have sex with a man, but did not want to have sex with a woman.
Defence lawyers for Newland disputed the victim’s allegations against her on the basis that a) the victim was university educated and she was too intelligent not to suss Kye out and b) at no point did the victim, who has previously had sex with men, suspect that the penis was in fact, a dildo.
Let’s talk about dildos for a moment. It is not yet known by The Debrief if the dildo was shown to the court as evidence. What is known is that Kye demanded the victim didn’t touch his ‘penis’ with her hands. However, even the most realistic dildos, the sorts used by trans men looking to ‘pass’ as male, will not feel entirely like a penis – they don’t ejaculate like penises, they don’t pulse like penises, they don’t get warm like penises, they certainly don’t smell like penises and nothing can quite re-create that peculiar magic of how testicles move during sex. And besides, the dildo used was a strap-on, which would have had a very tangible harness attached to its base.
However, the jury agreed that the victim truly believed that the ‘prosthetic penis’ Newland used was in fact a penis. But it leaves the case in a peculiar situation.
On the one hand, there is vindication for a female victim’s story in a court system that way too frequently does not take women’s claims seriously. On the other hand, here is a vulnerable, mentally unwell woman struggling with her gender identity and sexuality being handed down a custodial sentence of eight years.
The average sentence for a sexual offence is four and a half years, but Newland has been sentenced to eight years, which is the average sentence for a rape case. What was it about this case that made the judge hand Newland a bigger sentence than he did a paedophile who had raped four 13-year-old girls?
While previous cases of ‘gender fraud’ have seen sentences of 30 months and three years, respectively, there is no specific rule for the sentencing of these types of cases, so judges are making it up as they go along. Just to give you an idea of how judges treat queer people: one in five LGBT people can expect to receive poorer treatment than their straight peers if they appeared before a judge for a major criminal offence, according to research from Stonewall.
Only one in 38 rapes get reported, reach court and see the rapist convicted, with a similar pattern of attrition happening in sexual assault cases. So what made this case stand out?
There’s no doubt Kye/Gayle was emotionally manipulative, showing behaviour that is both ethically dodgy and potentially abusive. There’s no doubt that Newland was manipulative and determined enough to be a convincing liar. And we can’t blame the victim for the emotional manipulation she suffered.
As strange as it may be to, say, cover your eyes every time your boyfriend’s round and not suspect much from him, emotional manipulation can do all sorts of things to women too scared to leave a relationship.
But another factor at play in the sentencing is that the judge seems unable to grasp the complexities of Newland’s defence. With little knowledge of the struggles of queer identify and trouble with gender identity, how could he ever understand that two women could use sex toys and role play as part of a consensual relationship?
He seems to have held Newland’s defence up against the perceived norm of what sex is – straight, no kink – instead of what could be very much part of many queer women’s lives. As much as the judge was acting nobly to uphold one woman’s claim, how much of his sentencing was an opportunity to attack another woman’s deviant sexuality?
It’s encouraging to see one woman’s story be believed, but if that leads to a mentally unwell, struggling young woman to spend nigh on a decade in prison, where does that lead?
The precedent set by this is incredibly dangerous for those with wavering or non-binary gender identities, who already face much transphobia and homophobia outside of the legal system. There is something deeply personal and occasionally changeable about gender identity, so how is it made crystal clear before intercourse to someone who is adamant they will only sleep with one type of gender?
Could we reach a point where a trans person could be criminally punished for failing to disclose their trans status before sex?
Kye lied about many things, creating a whole fake family on Facebook to convince the victim ‘he’ was real. And a punishment must be handed down for the duplicity that led the victim to be penetrated, repeatedly, by an object she did not consent to.
But what other lies could someone be convicted for for telling before sex? What is it not OK to lie about before getting laid? That you’re a much nicer person than you’ve made out and that this won’t be a one-night-stand? That you’re on the pill? That you’re earning more money than you claimed when you were chatting over Tinder? That you’re not about to move to a different country?
The fact gender identity is a deciding factor in determining consent, while it’s not yet illegal in this country to have sex with someone without using a condom despite promising you would, is troubling. It also suggests that people only agree to sleep with others based on genitalia over their person, and that genitalia could be the sole thing holding an entire relationship together.
While discussions around consent, gender fluidity, dysmorphia and trans issues rise, cases of gender fraud must be included. And judges need to be trained to understand diverse sexual mores. Especially when gender deception is, by at least one judge, considered such a crime that he’ll give a mentally struggling young woman almost twice the sentence as a paedophile who raped four underage girls.
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Picture: PA
This article originally appeared on The Debrief.