Described as a bizarre and astonishing deception the conviction of Gayle Newland has garnered significant public attention. Holding herself out as male, Newland had used a prosthetic penis to penetrate a female partner who had believed Newland to be male.
The situation was certainly unusual. The couple had initially met online where Newland maintained a profile in the name of Kye Fortune. As the relationship progressed to face-to-face meetings Newland's victim was instructed to wear a blindfold to prevent her seeing 'Kye's' face - which Newland had described as disfigured. The case turned upon the reality of consent; Newland's partner had believed she was agreeing to sexual activity with a male and penetration by a penis. A jury found that the consent given was not valid in these circumstances and reached a verdict of guilty on three counts of assault by penetration.
But is it correct to describe such a long run gender deception as unusual? In recent memory a number of similar cases have reached the courts and I've been researching the history of gender deceptions by women and have discovered that such frauds have been perpetrated throughout modern history.
Some women who adopted a male persona undoubtedly felt themselves male, others disguised themselves to work, to commit crimes or to perform - and many took female partners. Few went through a ceremony of marriage though some did, and in many of these cases their partners claimed they had no idea their 'husbands' were female.
The 1746 case of Mary Hamilton, a woman who held herself out as male and took 14 wives prompted public interest and legal censure. Hamilton had used a fake penis to penetrate at least one wife and was prosecuted under the Vagrancy Act 1744 for "using any subtle craft, means, or device, by palmistry or otherwise, to deceive and impose on any of his Majesty's subjects"; essentially an offence of fraud. It was suspected Mary had married her many wives to take control of their property.
Two similar cases came to court in the 1700s and in both the offenders were charged with property offences. These charges reflected the social concerns of the time. The protection of property was paramount in many cases although the very public punishments inflicted on these offenders - whippings and the use of the pillory - reveal these cases were understood to have a sexual dimension.
Becoming a man gave women practical advantages - as a man they could move freely in the public sphere and take male jobs. In 1862, Ann Hughes (alias John Jones), was brought before the Manchester magistrates for threatening to beat the woman she lived with "as husband" The Times explained her disguise had been adopted in order to earn a man's wage. Numerous cases throughout the Victorian period were received with the same ambivalence.
The tale of "man-woman" Henry Stokes, a bricksetter and publican, attracted national attention when it was revealed (upon his suicide in 1859) that although born female Stokes had lived his entire life as a man and had married twice. His first marriage had ended acrimoniously, with Stokes accused of assault and his wife testifying - to the entertainment of the community - that he was female. His second wife, to whom he stayed married for 25 years, claimed she had not known Henry had been born female, although the newspapers speculated shame had kept her from admitting his true gender.
Many partners were undoubtedly unwilling to come forward and face social embarrassment, some would have been aware that the law was unwilling to find that such deceptions should or could result in a conviction. Others may simply have known their partner was a woman.
In the cause celebre of the early twentieth century Colonel Victor Barker (also known as Valerie Barker) came to public attention in 1929 when arrested for failing to appear on a bankruptcy summons. In 1923 Barker had gone through a marriage ceremony with Elfrida Haward and had since successfully passed as a man. When the prison doctor revealed Barker was female Elfrida claimed not to have known and Barker was convicted of making a false statement on a marriage certificate.
Claims of ignorance made by the wives and partners of these women are plausible, sexual innocence and a good disguise are not the preserve of the modern day. When, in 1946, Ellen May Young presented herself as male and romanced Irene Palmer into marriage the press belittled Palmer for failing to uncover the truth. The relationship may have been physical but, as the prosecution explained "Miss Palmer was a typical country girl who had not had much to do with men".
It was not until 1991 that a gender deception used to negate consent when 17-year-old Jennifer (alias Jimmy) Saunders was convicted of indecent assault for the sexual penetration of two young women.
These are only a few examples from many, but they illustrate that gender deceptions have not been without precedent. The Newland case is far from unique.