by Allison Moore
Edge Hill University
Sociological Research Online, 21 (2), 10
Received: 10 Jan 2016 | Accepted: 5 May 2016 | Published: 31 May 2016
In September 2015, Gayle Newland became the fourth person to be convicted of 'gender-fraud' since 2012 in the UK. This article offers a critical analysis of the media representation of these four cases and considers the extent to which the defendants are subjected to shaming and humiliation processes and presented as objects of disgust. The significance of media representation of legal cases is that it provides an insight into the ways in which legal discourses are interpreted, reinterpreted and often over simplified by those outside the legal profession. It highlights how legal discourses sit within a network of wider discourses and, therefore, illustrates the intertextuality of the law. Cheung (2014: 301) has suggested that, whilst the role of shame punishments in the criminal justice system has been subject to considerable academic scrutiny, 'social policing by shaming transgressions via the internet' has been under researched. This article will demonstrate that online news stories and the readers' comments that accompany them are important 21st century tools in the shaming and humiliation of those who have transgressed socially constructed gender norms.
1.1 On 15th September 2015 Gayle Newland was convicted of three counts of sexual assault by penetration under the Sexual Offences Act 2003 and was subsequently sentenced to eight years' imprisonment. The 'crime' she committed was that she had 'posed' as a man in order to engage in a sexual relationship with her friend, a cisgender woman. The sentencing judge, Roger Dutton, told Newland that she had committed 'a callous breach of the trust that your friend had in you' Gayle Newland was the fourth person in the United Kingdom to be convicted of 'gender-fraud' since 2012. In 2012 Gemma Barker pleaded guilty to two counts of sexual assault on girls that she had sexual relationships with under the pseudonyms Aaron Lampard, Connor McCormack and Luke Jones. During sentencing Judge Peter Moss said Barker was 'deceptive and deceitful'. In Edinburgh in March 2013, Chris Wilson pleaded guilty to the offence of 'obtaining sexual intimacy by fraud' with two girls, one of whom was under the age of 16 and was sentenced to 240 hours of community service. Wilson had been diagnosed with Gender Identity Disorder and had lived his life as male since early childhood. Although both girls consented to sexual intimacy with him the offence of 'obtaining sexual intimacy by fraud' is the result of the fact that he did not disclose his gender history to them. In the same month Justine McNally was convicted of six counts of Assault by Penetration. McNally met the complainant, a cisgender woman, online under the name of 'Scott'. An online relationship developed and they met on several occasions and were sexually intimate, although the complainant claimed she was unaware of McNally's gender history. Sentencing judge, James Patrick, said that McNally had exhibited 'selfish and callous behaviour - a grave abuse of trust of her [the complainant], her family and friends through your behaviour over a period of years' McNally was sentenced to three years imprisonment. Barker, Wilson and McNally were also placed on the Sex Offenders' Register for life.
1.2 During the court cases the judges used highly emotive language to describe the actions of the defendants, illustrating that, far from being neutral and value free, the law is, and has always been, informed and underpinned by emotions. Martha Nussbaum (2004: p.5) suggests that 'law without appeals to emotions is virtually unthinkable' because the law consistently attempts to ascertain and evaluate people's emotions. She maintains that the emotions of shame, disgust and humiliation have long been employed within the law. Indeed, 'naming and shaming' is an important aspect of the punishment of individuals who violate community defined standards and disgust is the principal and sometimes only reason that a particular act is classified as a crime.
1.3 The community defined standards that the defendants convicted of 'gender-fraud' violated were the binary system of sex/gender and heteronormativity. According to Butler (1990; 1993; 2004), sex and gender are both discursive constructions existing within a heterosexual matrix that assumes a causal relationship between biological sex, (including, chromosomes, hormones, gonads and genitalia, which must, themselves, be congruous), gender identity and sexual desire/identity. In order for our gender to be intelligible, the expectation is that it conforms to the heterosexual matrix and that there is congruence between our sex, gender and sexuality. For Butler, the laws that determine intelligibility are based on particular epistemological assumptions about the 'knowability of the human' (Butler 2006: p.183). Indeed, 'the very notion of "the person" is called into question by the cultural emergence of those "incoherent" or "discontinuous" gendered beings who appear to be persons but who fail to conform to the gendered norms of cultural intelligibility by which persons are defined.' (Butler 1990: p.23).
1.4 Hegemonic discourses about the connectivity between sex, gender and sexuality create 'truths' about the immutability of the category of sex and of the socially intelligible ways of 'doing' gender (Sanger 2008). These discourses become accepted as truths and become institutionalised in the law. Writing specifically about the recent 'gender fraud' cases, Alex Sharpe (2016) argues that the categories we identify as men and women are cisgender men and women and that 'the CPS continue[s] to privilege cisgender interpretations of gender in deciding whether to bring sexual offence prosecutions.' Gross (2009: p.165) suggests that the main aim of the law in cases like these is 'not to protect sexual autonomy against fraudulent solicitation of sex, but rather to protect gender norms and compulsory heterosexuality'.
1.5 These convictions have been subject to considerable critique (see, for example, Sharpe 2013a, 2013b, 2014, 2015; Whittle 2013). However, rather than focus on the legal judgments, this article will offer a critical analysis of the media representation of the four cases. It will outline the role of the emotions of shame, disgust and humiliation in the organisation of social life, generally, and in the application of the law, specifically. The article will argue that these emotions are especially likely to be normatively constructed, reflecting and reinforcing social hierarchies and inequalities and it is, therefore, problematic when these emotions are evident in the development of the law. Drawing on the work of Martha Nussbaum and William Miller, it will then critically consider the extent to which shame, humiliation and disgust are evident in the media coverage of 'gender-fraud' cases. The significance of media representation of legal cases is that it provides an insight into the ways in which legal discourses are interpreted, reinterpreted and often over simplified by those outside the legal profession. In this way, it is possible to identify how the operation of shame, disgust and humiliation in the law is reflected and/or rejected in media coverage and readers' comments. It highlights how legal discourses sit within a network of wider discourses and, therefore, illustrates the intertextuality of legal discourses. Cheung (2014: p.301) has suggested that, whilst the role of shame punishments in the criminal justice system has been subject to considerable academic scrutiny, 'social policing by shaming transgressions via the internet' has been under researched. This article will demonstrate that online news stories and the readers' comments that accompany them are important 21st century tools in the shaming and humiliation of those who have transgressed gender norms.
2.1 A sample of 31 online news stories and eight associated comments' boards were analysed using Critical Discourse Analysis. Critical discourse analysts take a critical stance on discursive practices and are principally concerned with critiquing 'the way social power abuse, dominance and inequality are enacted, reproduced and resisted by text and talk in the social and political context' (van Dijk 2001: p.354). So CDA is primarily interested in the relationship between language and power (Wodak 2001). Language, whether it is written or spoken, is a representational system that uses signs and symbols 'to stand for or represent to other people our concepts, ideas and feelings' (Hall 1997: p.1). It exists within, what Stuart Hall calls, a circuit of culture in which language both reflects and creates meaning. For CDA, language is, therefore, a social process or a socially constitutive process in so far as 'it constitutes situations, objects of knowledge, and the social identities of and relationships between people and groups of people' (Fairclough & Wodak 1997: p.258). Further, if we accept Hall's argument that language sits in a circuit of culture, texts do not exist in isolation. They are located in specific socio-cultural and historical contexts and are related to other linguistic texts. So, discourse analysis is concerned with the study of a 'class of texts' (Chalaby 1996: p.684) and the intertextuality between them. 'To enter into the study of discourse, therefore, is to enter into debates about the foundations on which knowledge is built, subjectivity is constructed and society is managed. These are debates about the nature of meaning' (Wetherell 2001: p.5).
2.2 Methodologically, CDA is rooted in the hermeneutic tradition of analysis and interpretation of texts. Meyer (2001) suggests that CDA should not be thought of as a single method as there is no one, or even typical way, way of collecting or analysing data. Samples are not required to be representative but researchers tend to select and analyse, what Meyer (2001) calls, 'typical texts' related to the topic under investigation. Rather than a method, CDA should be thought of instead as a particular approach or stance to an issue. Norman Fairclough (2001) has proposed a five stage analytical framework for conducting critical discourse analysis. Stage One is the identification of a social problem. As Fairclough rightly points out, this raises the questions of who defines something as a problem and who is affected by it? Given CDA's aims of exposing the ways in which hierarchy and inequality are reinforced and perpetuated, the social problems that critical discourse analysts are concerned with are those that affect the most marginalised and vulnerable groups in society. Stage Two requires the researcher to ask what it is that is preventing the problem from being resolved or, 'what is it about the way in which social life is structured and organized that makes this a problem which is resistant to easy resolution?' (Fairclough 2001: p.125). In Stage Three of Fairclough's analytical framework, the researcher considers whether the social order 'needs' the problem in question; whether the existence of the problem serves to sustain the existing social order? Fairclough (2001: p.126) characterizes Stage Four as a move from 'negative to positive critique'. Having identified obstacles to the resolution of the problem in Stage Two, the researcher now considers ways in which the social order might be challenged. The final stage of the framework requires a reflection on how effective the analysis is as a critique of dominant discourses and social process.
2.3 Applying a critical discourse analysis to the media representation of cases of 'gender-fraud' illustrates the pervasiveness of cisgender privilege and the discourses and social processes that help to sustain it. Its intertextual approach to understanding discourses contextualises legal discourses within a wider network of discourses that intersect to construct the transgender subject. Norman Fairclough's Five Stage Analytical Framework was utilised in the analysis and interpretation and the research sample was made up of 'typical texts' of online news media sources.
2.4 The sample of online news items was selected by typing the words 'Gemma Barker', 'Chris Wilson', 'Christine Wilson', 'Justine McNally' and 'Gayle Newland' into an Internet Search Engine. The selection was restricted to UK news items that were publically and openly accessible and an attempt was made to ensure that the sample included broadsheet, tabloid and online only news coverage. However, this sample cannot be seen as representative of all news coverage of the cases, nor are any claims of representativeness being made. Instead, it should be understood as an indicative sample of the news coverage publically available to anyone doing an internet search of these legal cases.
2.5 Although internet based research has grown over recent years and has been employed in a range of different disciplines, Convery and Cox (2012: p.51) claim that there is 'a 'technology lag' where ethics has played catch-up to the various methodological options available to the researcher'. There is disagreement amongst researchers as to the nature of the ethical dilemmas that online research presents and how they should be resolved, particularly with regards to issues of consent, anonymity, and the blurring of the public/private distinction in cyberspace. For the purposes of this research Holmes' (2009) position on internet message boards was adopted which states that as the posts on these boards are publically available, often for many years after the comment was originally posted, they should be considered in much the same way as newspaper archives. Readers who post comments online are usually required to provide a username. For the purposes of this research, readers will be considered authors of their posts and, therefore, their comments are attributed to them rather than being anonymised. (AOIR 2002).
3.1 Emotions are ubiquitous in social life. Without the ability to understand and express our own emotions and, perhaps more importantly, without the ability to read and interpret the emotions of others, it would be impossible to negotiate social relationships and navigate our way through everyday interactions. Given the ubiquity and complexity of emotions in social life, it would be a mistake to assume that the law is exempt from emotionality. Although frequently presented as objective, neutral and value-free, the law has always been informed and underpinned by emotions. However, some commentators have suggested that since the 1990s law has undergone a process of 'emotionalisation' and that emotions such as anger, shame and disgust are seen as 'valuable barometers of social morality' (Karstedt 2002: p.299).
4.1 A number of contemporary social scientists have positioned shame at the heart of the organisation of social life (see, for exampleElias 1994; Scheff 2000, 2001; Probyn 2005; Ahmed 2007). However, arguably, the German sociologist, Norbert Elias, has provided one of the most comprehensive histories of the development of shame in Western societies. He suggested that shame played a central role in what he called the civilizing process, a set of interrelated social developments that emerged in the mid sixteenth century and which were characterised by fundamental changes in the way that people related to and interacted with one another. Precipitated by modernisation, urbanisation and the growth of industrial capitalism and, in particular, the increased interdependence produced by complex divisions of labour and the proximity of one's neighbours, the civilising process increased individuals' sense of themselves in relation to others, This increased cognizance of self in relation to others and increased awareness of the actual, or perceived, ramifications of our actions brought about feelings of shame, or anticipation of shame, concerning behaviours no longer considered socially acceptable in modern society. According to Scheff (2001) shame served a two-fold function. First, it served to maintain the distance or boundary, both physical and psychological, between ourselves and others and; second, it facilitated the development of a socially constituted sense of conscience to act as a 'moral' barometer of our behaviour.
4.2 Shame and stigma are inextricably linked, especially when someone is being shamed simply because they do not conform to normative standards. For Erving Goffman (1963), stigma is the social disapproval of an individual or a member of a group because of an actual or perceived attribute that deviates from societal norms. Every society makes distinctions between normal and abnormal and, as a result, every member of each society develops a view of the world 'from a perspective of its norm of normalcy' (Nussbaum 2004: p.217). An individual who deviates in some way from this normalcy is therefore pathologised as a result (Nussbaum 2004).
4.3 So, the use of shame and stigma in society at large and in the implementation of the law performs important boundary work. This is not to say that shame does not have a place in the law. Where conduct is wrong and constitutes a gross violation of society's standards of behaviour, for example, murder or sexual violence, punishments that shame offenders might be considered appropriate and legitimate. However, shaming punishments predicated solely on the grounds that a behaviour transgresses normatively defined standards of behaviour are problematic because they signify the boundary between what is considered 'normal' and 'abnormal' and, in so doing, preserve taken for granted, but socially constructed, notions of what is acceptable and unacceptable.
5.1 The term humiliation is often used interchangeably with shame and embarrassment as though there were no discernible differences between them. William Miller (1993: p.133), however, suggests that whilst humiliation 'bears significant points of contact with shame on its dark side and with embarrassment and even amusement on its lighter side', it can be differentiated from its emotional relatives in a number of ways. Intent is an important prerequisite of humiliation for Nussbaum (2004) who suggests that if we set out to embarrass someone deliberately, however short lived and trivial the consequences may be, we have moved into the realm of humiliation. The distinction between shame and humiliation lies in the work that humiliation does in damaging an individual's dignity. Humiliation as punishment always 'carries the implication that a very painful lesson is being imposed at the cost of the victim's dignity […] all behaviour that is designed to humiliate contravenes the normative expectations built into modern notions of human rights' (Lindner 2001: p.51). Lindner (2001) suggests that it is this contravention of human rights and disregard for individuals' dignity and humanity that has led some political philosophers to appeal to a 'politics of recognition' on the grounds that lack of recognition is inherently humiliating. Axel Honneth (1997), for example argues that treating an individual with dignity and respect results in 'the avoidance of humiliation' (Honneth 1997: p.306) and, further, 'humiliation of persons is internally linked to the violation of the principles of equal treatment' (Honneth 1997: p.307).
5.2 So, in society generally and the law, in particular, shame and humiliation 'carry out the same kind of rough work of punishing moral and social failure' (Miller 1993: p.x-xi) Humiliation and shaming punishments mark individuals out as having less moral worth which, in turn, justifies actions that disregard their dignity.
6.1 Disgust is such a pervasive experience in our everyday lives that some commentators would argue that it belongs to the realm of primordial and instinctual drives rather than the realm of emotions (Miller 1997) In part, this is due to the fact that disgust is an especially embodied, visceral emotion that is usually accompanied by autonomic physical responses such as nausea. However, Miller (1997: p.8, emphasis in original) maintains that what defines disgust as an emotion is that it 'is a feeling about something and in response to something not just a raw unattached feeling.' For him, disgust 'is a strong aversive emotion' (ibid, p. 25), concerned with fears over contamination and pollution and the dangers posed by the object determined to be disgusting. Quite simply, in recognising our own disgust at a disgusting object we run of the risk of 'contamination' and 'pollution' and thereby becoming disgusting ourselves.
6.2 Disgust is generally reserved for those things that remind us of our animal bodies. So, bodily excretions, secretions and odours elicit feelings of disgust that seem to be fairly universal and appear across cultures. Nussbaum (2004: p.72) also suggests that within most cultures, some groups of people are marked out as 'bearers of a contamination that the healthy element of society must keep at bay.' What is noteworthy here is that whilst disgust at bodily fluids can be founds across cultures, the groups of people marked out as bearers of contamination are socially, culturally and historically constituted. Disgust, therefore, can also be a powerful 'mode of disapprobation' (Miller 1997: p.35) and, as such, serves important ideological objectives of reinforcing and reproducing social order. Disgust carries with it connotations of purity and contamination, and superiority and inferiority. The expression of disgust is 'an assertion of a claim to superiority that at the same time recognises the vulnerability of the superiority to the defilement of the low' (Miller 1997: p.9). Indeed, such is the significance of the role of disgust in the perpetuation and reproduction of relations of superiority and inferiority that Nussbaum (2004: p.117) states that 'the really civilized nation must make a strenuous effort to counter the power of disgust, as a barrier to the full equality and mutual respect of all citizens.'
6.3 So far, focussing on shame, humiliation and disgust, this article has provided an overview of the centrality of emotions in social life, generally, and in the law in particular. The ubiquity of these emotions might lead to the assumption that they are natural, instinctual and, even, inevitable in some situations. However, it has been argued that, rather than natural phenomena, the emotions of shame, humiliation and disgust are especially likely to be normatively constructed, reflecting pre-existing ideas about society's norms and values and serving to maintain social hierarchies. These emotions do important work maintaining the boundary between constructions of 'normal' and 'abnormal' and in preventing the polluting influence of what has been categorised as 'abnormal'. It will now go on to offer a critical analysis of the media representation of the cases of Barker, Wilson, McNally and Newland and consider the extent to which shame, humiliation and disgust are evident in the coverage.
7.1 Shame performs two diametrically opposed functions within the law. On the one hand, the law is thought to protect the human dignity of all its citizens and prevent the shaming and stigmatization of particular groups in society. From this perspective, the law should prohibit the shaming of already marginalised groups of people, introduce measures that improve the position of members of those groups in society and refuse to be 'a partner to the social infliction of shame' (Nussbaum 2004: p.174). On the other hand, and in direct contrast, the role of the law is increasingly seen as shaming those who have transgressed society's norms. In the news coverage of the four cases it is possible to identify both usages of the concept of shame.
7.2 In the media representations of Barker, Wilson, McNally and Newland shame and humiliation are almost indistinguishable. Indeed, Nussbaum (2004) suggests that humiliation is the active, public face of shame and, as such, the differentiation between them is not always clearly evident. A look at the headlines of the news articles covering the cases illustrates the centrality of shame and humiliation in the reporting:
Woman who tricked two teenage girls into relationships by disguising herself as a boy faces jail (The Telegraph, 17.01.2012)
Woman, 25, posed as a boy so she could seduce teenage girls into sexual relationships (MailOnline, 07.03.2013)
Anger as sex fraud woman avoids prison (HeraldScotland, 10.04.2013) 18-year-old woman masqueraded as boy to get girl into bed ( The Telegraph, 21.03.2013)
Justine McNally, who pretended to be a boy to take 16-year-old schoolgirl's virginity jailed (Huffington Post, 22.03.2013)
Gayle Newland: Sex attacker who posed as man lodges new appeal (BBCNews, 23.11.2015)
7.3 Although news headlines are supposed to be short, succinct and capture the essence of the story, they also speak volumes about the value positions of their authors. Whilst these headlines come from a variety of news media, including tabloids, broadsheets and online only news providers and are reporting on four different cases their similarities are striking. In four of the six headlines listed here, the defendants were called 'women' and the victims were referred to as 'girls'. It is not only the transgression of the social taboo of intergenerational intimacy that is being alluded to here but, more specifically and more shamefully, that the women in question were guilty of sexual exploitation of the girls. The positioning of the defendants as 'women' and the victims as 'girls' was most clearly evident in the reporting of the Barker, Wilson and McNally cases. Whilst it is certainly the case that these defendants were adults when they were tried, the implication of sexual exploitation of minors does not accurately reflect the facts of the cases nor does it reflect their convictions. For example, Justine McNally was 19 when she pleaded guilty to six counts of sexual assault by penetration but she had met the complainant when they were 13 and 12, respectively and the 'offences' took place when the complainant was 16. In other words, although not legally an adult, she was old enough to consent to sex under the Sexual Offences Act 2003. Although Barker and Wilson were adults when they had relationships with the complainants, neither of them were convicted nor even charged with sex with a minor. Instead, the charges rested on deception and fraud. However, to allude to sexual exploitation of minors shames Barker, Wilson and McNally for transgressing one of the most guarded of social norms, the protection of children.
7.4 The other community defined standard that all defendants are shamed and humiliated for transgressing is their failure to conform to the heterosexual cultural matrix based on a binary sex/gender model that assumes congruity between sex and gender. At the time the offences took place, Wilson and McNally identified as male. The headlines that refer to them as women masquerading, pretending or disguised as boys denies their ontology, the phenomenology of their body and their gender identity. The refusal of recognition constitutes a form of humiliation as the defendants' personhood is nullified and they are reduced to non-persons (Juang 2006). Only two news sources reported a case in a way that respected the defendant's gender identity. The PinkNews referred to Chris Wilson as a transman and GayStar News referred to him as a man. However, the other five news articles covering this story that were analysed not only referred to him as a woman but also used the name Christine Wilson rather than Chris Wilson. Although Barker and Newland appear to have identified as lesbian women rather than transmen, the references to their pretence or disguise as men denies the possibility of women performing their gender in ways that might be characterised as masculine. It is illustrative of the regulation of 'marginal sexuality through a focus on the gender performances that accompany it […] prosecution is always about the punishment of gender "deviance."' (Sharpe 2015)
7.5 Nussbaum (2004) suggests that there is a relationship between the stigmatisation and humiliation of individuals and the characterisation of them as having less moral worth. Terms like trickery, pretence, deception and fraud are hardly imbued with moral integrity and their repeated usage in the all the news articles analysed implies that the cases involved active and intentional deception. For example, Gemma Barker is referred to as a 'Mistress of Disguise', Chris Wilson as a 'conwoman' and Justine McNally as having constructed 'a web of lies'. The rhetoric of deception present in both the legal judgements and media representation is exacerbated where there appears to be an anomaly between gender presentation/identity and the sexed body or, more specifically, genitalia, because such incongruity renders the body unintelligible. According to Bettcher (2007: p.47) 'genital exposure as sex verification' is a, not uncommon, feature of transphobic violence. The highly publicised murders of American transgender teenagers, Gwen Araujo and Teena Brandon, involved forced genital exposure 'amid accusations of deception and betrayal, followed by extreme violence and finally murder' (Bettcher 2007: p.47). The expectation that trans people should disclose their gender history can be seen as a kind of figurative genital exposure, a form of symbolic violence that serves to naturalise and reinforce relations of dominance and subordination in the gender hierarchy. Bourdieu defined symbolic violence as 'a gentle violence, imperceptible and invisible even to its victims exerted for the most part through the purely symbolic channels of communication and cognition (more precisely, misrecognition), recognition, or even feeling' (Bourdieu 2001: p.1-2).
7.6 The expectation that trans or genderqueer people disclose their gender history prior to sexual intimacy with a cisgender partner perpetuates the stigmatisation of trans identities, it marks them out as different and 'abnormal' to the 'norm' of the cisgender referent. Disclosing their gender history means exposing the 'real' self, what Sharpe (2009: p.259) refers to as a 'return to the "truth" of the past'. This illustrates what Bettcher (2007) calls the double bind that transgender people face. On the one hand, one can choose to share one's gender history with a prospective partner but to do so carries considerable risks of verbal and/or physical assault and of not having one's identity acknowledged because of assumptions that one is 'really' a girl who dresses like a boy, and vice versa… So, the options really are very limited to 'disclose 'who one is' and come out as a pretender or masquerader, or refuse to disclose (be a deceiver) and run the risk of forced disclosure, the effect of which is exposure as a liar' (Bettcher 2007: p.50). Feinberg (1998) argues that the very process of making daily decisions about if or when or how to make disclosures is a degradation of one's humanity, of one's very being.
7.7 Miller (1993) suggests that humiliation is utilised to expose pretension. Here he is referring to pretensions of grandeur or pretensions of vanity and is frequently employed when an individual, usually someone of a lower-rank, claims the status or purports to be someone of a higher rank. For Miller (1993: p.145 Italics in original), 'If shame is the consequence of not living up to what we ought to, then humiliation is the consequence of trying to live up to what we have no right to'. He differentiates this type of humiliation, which he sees as part of the everyday, 'the normal and the familiar' (Miller 1993:p.165) from humiliation with a big H. This is humiliation on the grounds that one's 'humanity is a pretence' (ibid. p.165) and it tells its 'victims that all social norms are suspended in dealings with them because they are not human.' (ibid.p.167).
7.8 Applying Miller's theory of humiliation as the unmasking of pretence to the cases of Barker, Wilson, McNally and Newland, it can be argued that it is possible to identify both humiliation with a small 'h' and humiliation with a big 'H'. If humiliation with a big 'H' exposes an individual's humanity as pretence, the news headlines that refer to Wilson and McNally as women deny their ontology and therefore reduce them to non-persons. According to Miller's model, humiliation with a small 'h' is meted out when individuals claim a higher rank or status than they are entitled to. A binary system of gender is predicated on two opposite, mutually exclusive but complementary, categories of male and female, masculinity and femininity. In a binary model, one category only makes sense with reference and in relation to its opposite and in most binaries, and in particular those that are based on socially constructed categories, the two oppositional categories are not accorded the same value, with one category being privileged over the other. In a heteropatriarchal society, masculinity is privileged over femininity and heterosexuality is privileged over homosexuality. To expose Barker, Wilson, McNally and Newland as women pretending to be men, their claim to the higher rank of 'manhood' is deflated. Humiliation with a small 'h' is evident in the following excerpts:
The secret was exposed when a family friend McNally was staying with discovered a strap-on sex toy and bra in her backpack. (Pink News, 13.06.13)
A copy of Wilson's passport was emailed to the girl, who then confronted Wilson. She admitted to her pretence and the girl ended their relationship. (MailOnline 07.03.2013)
When one of her victims became suspicious, she reported Barker to police, who eventually discovered the truth. ( Huffington Post, 18.01.2012)
[The victim] had sex with her 10 times until the victim ripped off her mask and saw Newland was wearing a prosthetic penis. (MailOnline 17.11.2015)
7.9 Here, their pretension as males is exposed and the 'truth' of their identity is uncovered. In the cases of Wilson, McNally and Newland, the pretension was deflated and, arguably the humiliation greater because of the discovery of items that marked them out as female; a strap-on sex toy or prosthetic penis signifies the absence of a penis, a bra indicates the presence of breasts and a passport is a statement of your legally registered gender.
8.1 The news coverage of all four cases emphasised the shame and indignity suffered by the complainants and, in so doing, further shamed the defendants. The reporting highlighted the youth, naivety and vulnerability of the complainants.
She had her first sexual encounter with you, and you abused her trust so badly she finds it difficult to trust other people (Judge James Patrick cited in The Metro, 21.03.2013)
the judge told Barker … 'The psychological damage to these innocent young women is self-evident' ( The Metro, 05.03.2012)
On finding out the accused true identity, the complainer struggled to come to terms with the accused's deceit ( IBTimes, 07.03.2013)
The prosecution said it was an 'unusual case' set against an 'extraordinary background' in which the defendant targeted the 'naive and vulnerable' complainant - who said she was not gay - in an elaborate deception. ( MailOnline 17.11.2015)
8.2 Many of the news articles directly cited the judgments from the cases, which illustrates how legal discourses should be understood intertextually, existing in a wider network of discourses. As well as stressing the 'innocence' and naïvety' of the complainants, the coverage also referred to pre-sentence reports and defence statements that attest to the vulnerabilities of the defendants.
Mr Thomas [Defending Counsel] said McNally, the youngest of four children, had reacted badly to the divorce of her parents and has confusion about gender issues. (ibtimes, 22.03.2013)
Ms Patel [Gemma Barker's defence counsel] said … 'my client is rather a lonely person.' She said that Barker appeared to be suffering from a disorder on the autistic spectrum. (The Telegraph, 17.01.2012)
The judge pointed to Newland's various disorders, which were identifed in a psychiatric report, including social anxiety disorder, a personality disorder, depression and obsessive compulsive disorder. (The Guardian, 12.11.2015)
8.3 Despite the fact that the vulnerabilities of the defendants were referred to they were generally not portrayed in a sympathetic light and, instead, they were represented as manipulative predators exploiting the 'innocence' of their victims. Even when the defendants vulnerabilities were taken into account as mitigation in sentencing, as in the case of Chris Wilson and in Justine McNally's successful appeal against her sentence, the coverage of this in the news was overshadowed by the narrative of deception on their parts. To emphasise the vulnerabilities of the complainants and downplay those of the defendants serves to dehumanize the defendants and is an important feature in the humiliation process. Miller (1993: p.62) suggests that an individual who engenders a sense of pity 'reveals a certain humanity with its victims.' In order to punish and humiliate individuals who violate community defined standards they cannot be seen to be like the rest of the community; they are 'Othered' and their characteristics, strengths and weaknesses that make them human are denied.
8.4 The 'deception' also induced shame in the victims because of how 'convincing' it was. Speaking about her relationship with Gemma Barker/Connor McCormack, Jessica Sayers said 'I know people will be wondering how I didn't realise it was her. But she was so clever about it and I was young and naïve.' The victims' shame that is represented in the news coverage is twofold; shame of contact with a transgender person and shame of inadvertent homosexual contact.
8.5 In the news coverage of the cases, there is repeated reference to witness impact statements that had the victims known the gender history of the defendants they would not have consented to sexual intimacy. In other words, their heterosexual identity is affirmed and their contact with homosexuality is stipulated as accidental. In this way, the complainants' heterosexual identity that has been spoiled by their inadvertent homosexual contact is restored (Goffman 1963) In the coverage of the Gemma Barker case, in particular, the defendant as Connor, Luke and Aaron, was characterised as an 'ideal boyfriend'. Jessica Sayers said 'Nobody knows what it is like to be told the person you love and want to spend the rest of your life with is not real' and added 'When we kissed it was just like a normal kiss.' (ibtimes 07.03.2012) Similarly, Megan Adie, one of the girls Chris Wilson had a relationship with, described him as her 'first love' (The Telegraph,09.04.2013). In her discussion of Brandon Teena, Judith Halberstam (2005) recalls that his girlfriends 'called him "a perfect gentleman" and that "Many of the women in their accounts of Brandon describe him as a fantasy, an ideal, an improved and even aristocratic version of the usual forms of masculinity they came across"' (Halberstam 2005: p.65) In other words, Brandon was able to give the girls a version of masculinity that they not only found attractive but was a better version of masculinity than they were used to. He 'excelled in the performance of masculinity' (Halberstam 2005: p.65), a performance that disrupts assumptions about the essential nature of masculinity and, therefore, destabilises the heterosexual cultural matrix. In the cases of Barker, Wilson, McNally and Newland, individuals with female genitalia and assigned a female gender identity at birth performed masculinity so well that, not only the girls that they had relationships with but also their friends and families, had no reason to doubt their gender presentation and identity. This threatens the very foundation of the sex=gender=sexuality model and demonstrates that there is no necessary or inevitable relationship between biological sex, gender identity and sexual desire. Arguably, it is the threat that this poses to the gendered social order that was a driving factor in their criminal convictions.
9.1 Of the 31 online news articles that were analysed, eight were accompanied by readers' comments and, in total, 875 comments were posted. Not surprisingly, a diverse and disparate range of views were represented in these posts but it was possible to identify six attitudinal themes that were evident in the posts. First, in relation to the Barker, McNally and Newland cases, a number of readers stated that, in their view, the sex acts between the defendants and complainants were consensual and, therefore no crime had been committed. These posts tended to be based on the view that although deception had occurred it was analogous with other types of deception that occur in sexual relationships.
Atlanta - Non-disclosure of gender history should not invalidate consent. End of. Is gender history something many people would wish to know about a sexual partner? Yes. Is it something which might change a decision about whether to have a sexual relationship? Yes. But so are a million other things. We don't prosecute people who lie to get sex; if we locked up every married man who pretended to be single to get laid, there would be no prison cells left. Conversely a trans person concealing their gender history is likely doing so for their safety and dignity, and not as part of a sexual scheme. (Pink News, 13.06.2013).
Chewy - Men have been trying to trick women in to having sex with them for Years … ( Mail Online, 18.01.2012)
gb - I don't understand why she gets a prison sentence for this. Seems to me that deceptive, cheating husbands and wives, boyfriends and girlfriends up and down the country should be put away for their infidelities also??? OK, it's all a bit odd but that doesn't mean she should be locked up. ( Mail Online, 06.03.2012)
9.2 However, far more responses reflected the second theme which was that, whilst a wrong had been suffered by the complainants, the defendants were in need of psychiatric support rather than incarceration.
hoveheart – if it had happened to someone close to me I would feel disgusted at the betrayal however surely this girl needs help rather than 3 years prison? I've no idea how the victim feels, I feel for both girls in this. ( Mail Online 21.03.2013)
Anon - I feel very sorry for the victim but I don't think prison is an appropriate place for the perpetrator […] Psychiatric help would probably be more useful. She's obviously very disturbed ( Mail Online, 21.03.2013)
lai - she is CLEARLY VERY mentally unwell and needs compassion (as everyone does), and more importantly Very good psychological HELP. ( Mail Online, 06.03.2012)
Paul Rossi - Absurd and grossly excessive sentence. Hope she appeals. The woman needs help, not imprisonment. ( The Huffington Post UK, 12.11.2015
9.3 Although these responses appear to be sympathetic towards the defendants and are opposed to a custodial sentence, the characterisation of the defendants as 'disturbed' and in need of psychiatric/psychological help does not reduce their stigmatisation. It simply brands them with the mark of a different type of stigma; stigma on the grounds of mental disorder. There is a substantial body of literature that highlights the relationship between a diagnosis of mental ill health and stigmatisation. However, when mental disorder is being used in this context, it has two separate but related consequences. First, the refusal to recognise the defendants' gender identity can be understood as an erasure of transgender people (Namaste 2000), a denial of their ontology and, in turn, their humanity. Non recognition is itself a key mechanism in shaming and humiliation processes. Second, although their trans status is denied, the defendants are still stigmatised because their 'gender confusion' is characterised as a symptom of mental ill health and the boundary between the 'normals' (Goffman 1963) who have no 'gender confusion' and are therefore mentally well, and the 'abnormals' is maintained.
9.4 The third theme reflected in the posts was that a crime had been committed and that punishment was appropriate, with some readers stating that the punishments were too lenient. This view was expressed in relation to all four cases and appeared with almost equal frequency as the view that the defendants were mentally disturbed, with the exception of the Newland case where online comments were more likely to reflect that her sentence was excessive.
Matthew - … Nobody was harmed???? Try telling that to her victims who were emotionally and sexually violated. They deserve justice for the way she exploited them. I can't believe some of the comments on this matter. An adult dressed up as a young boy, created fake profiles online and groomed two young girls into having intimate relationships with them, but some seem to find that acceptable?!! Really? I don't. And had this been a 20-year old man grooming young girls for their sexual gratification I guarantee you there would be nobody at all defending them or saying they got too harsh a sentence. Why the difference in opinion simply because she is female? ( Mail Online, 06.03.2012)
Rockvilla - Oh, its ok, she has a 'disorder' of course she does. Lock her up and throw the key away. ( Mail Online, 07.03.2013)
Truth Hurts - Paedophile! send her to prison ( Mail Online, 21.03.2013)
gem - really she is just as bad as paedophiles, lying over the net to seduce other's! this is a sick, sick world! ( Mail Online, 21.03.2013)
weAll – iNothing - She's clearly guilty and had been setting things up, step by step over many many years. If she gets a lesser sentence that would be a massive disrespect and injustice to all her victims. MailOnline 17.11.2015
9.5 These posts tended to articulate the view that the defendants were sexual predators and paedophiles and, therefore, reflected the inference of sexual exploitation of girls that was evident in the news article headlines. Considered, almost universally in the United Kingdom, to be a gross and heinous transgression of social norms, reports of exploitation of minors produces disgust in the readers and disgust was frequently expressed in these posts.
Tammi - not the first girl to do this! Its dishusting (sic) why feel the need to abuse a girl OR boys trust. Mess yourself up not others" ( Mail Online, 07.03.2013)
uzoma93 - Predators these days. Disgusting ( Mail Online, 21.03.2013).
9.6 Although disgust was associated with the view that the offences constituted sexual exploitation of young girls, some posts expressed, what appeared to be, generalised disgust at the content of the news story. However, on closer examination this disgust, and the fourth theme identified in the posts, seems to be focused almost exclusively on the gender non-conformity of the defendants.
Seltzman - Eughhhh this is so gross ( Mail Online, 07.03.2013)
here, there, everywhere! - Disgusting woman! ( Mail Online, 07.03.2013)
amelie - I really can't believe what I have just read, this is absolutely disgusting. Christine really is sick in the head! ( Mail Online, 07.03.2013)
anon_girl - Ugh, she's so creepy-looking. Weirdo. ( Mail Online, 06.03.2012)
Tiggs - That's gross… ( Mail Online, 18.01.2012)
9.7 If we accept the argument that disgust is an embodied emotion, usually accompanied by autonomic physical responses, one needs to ask how it is that the newspaper readers are able to express an embodied emotion about something they have not experienced; what is it that they are disgusted about? Nussbaum (2004: p.88) has argued that disgust is principally concerned with the 'borders of the body' and, importantly, with protecting the borders of the body from contamination. In the cases of Barker, Wilson, McNally and Newland, the body borders at risk from pollution are those that exist within the heterosexual matrix where biological sex and gender identity are assumed congruent and sexual desire is orientated towards heterosexuality. So, the readers' disgust is not triggered by a primary object which would produce a sensory or visceral response but, instead, should be understood as constructive disgust (Nussbaum 2004) in so far as it is socially and culturally contingent; disgust at the queer or transgender body in a society based on sex and gender binaries. It is noteworthy that, although only 93 of the 875 posts related to the Wilson case, the majority of comments expressing generalised disgust can be found in them. Where Barker, McNally and Newland were frequently characterised as 'confused' in the readers' comments with the implication that their confusion can be 'corrected' with the right kind of 'help', Wilson had identified as male since early childhood and had a diagnosis of Gender Identity Disorder, a psychiatric label applied to individuals who have a strong and persistent cross-gender identification. Arguably, Wilson's persistent, rather than transient, cross-gender identity represents a greater threat of contamination of the heterosxualised cultural matrix and, therefore, provokes greater feelings of fear which is often expressed through disgust.
9.8 The readers' expressions of disgust also link in with, what Nussbaum (2004) calls, eudaimonistic judgment, which involves connecting 'the suffering person to the sympathetic viewer's own possibilities and vulnerabilities' (Nussbaum 2004: p.50). Quite simply, eudaimonistic judgment means putting oneself in someone else's shoes. The numerous posts that state sympathy for the victims in these cases suggest compassion on the grounds of the connectivity between their experiences and the readers' own imaginings of themselves in similar circumstances. Indeed, some posts clearly state how the reader imagines they would feel and would respond in similar scenarios.
Jc – I'd be too mortified to tell anyone! ( Mail Online, 21.03.2013)
Friday Jones - Know what a civilized person would have done had they discovered that their partner was trans and found it a big turn-off for whatever reason? BREAK UP WITH THE PARTNER. Not call the cops and have their partner arrested for sexual offenses based on mutually enjoyed previous encounters ( Pink News, 13.06.2013)
scarlettb - that's embarrassing ( Mail Online, 21.03.2013)
Sarah - That is DISGUSTING. Imagine being inside the poor victims head now, what a horrible experience ( Mail Online, 07.03.2013)
9.9 However, where eudaimonistic judgments involve compassion on the grounds of mutuality and connectivity, a significant number of the readers' comments made judgments about the victims because they did not behave in ways they would have themselves. This leads on to the fifth attitudinal theme that was evident in the posts and concerns disbelief of the victims' stories and shaming them for their actions.
Terence - What a bizarre story. Either she was very good at it or her 'victims' as you call them, were very stupid indeed. ( Mail Online 18.01.2012)
tiffany17 - Some serious issues there, but I do have sympathy for the victim as that is a horrible betrayal of trust, however I must wonder how you do not differentiate between a male and female at that age when boys have slight facial hair and get very tall and skinny normally. ( Mail Online, 21.03.2013)
catherine22 - How could they not notice she was a girl? The lips give it away for a start … And what normal 16 year old 'boy' doesn't have facial hair? ( Mail Online, 06.03.2012)
ManOfKent - I'm torn on this one. She seems totally manipulative and the alter ego took considerable effort to build and maintain. On the other hand, do I believe that the other girl really didn't know she wasn't a man? No, I don't. It just goes against all common sense. ( Mail Online 17.11.2015)
Rob Gale - I could almost accept it if Newland was a masculine sort of Woman. But she actualy [sic] looks very feminine, with a nice figure. There is no way that her supposed victim didn't know she was a woman! ( The Huffington Post UK, 13.11.2015
9.10 If compassion relies on our shared humanity and shared vulnerabilities, these posts serve to sever that connection and distance the reader from the victims. When the readers post questions asking 'How could they not notice she was a girl?' or how did the girls not 'recognise their friend dressed up as a boy?' arguably what is really being said is that 'I would notice she was a girl' and 'I would be able to recognise my friend dressed up as a boy.' Underpinning these comments are the assumptions that there is a relationship between biological sex and gender identity and that biological sex trumps gender identity. In other words, it is irrelevant how the defendants identified, they were 'really' girls dressed up as boys. Further, to acknowledge the connectivity between the readers and the victims means acknowledging the complexity of sexual attraction and recognising the fluidity of both gender and sexual identity, which would fundamentally undermine the heterosexual cultural matrix. So, comments that shame the victims, serve to protect the readers' gender and sexual identities and perpetuate the notion of cisgender as the norm against which transgender is positioned as abnormal.
9.11 The sixth theme that can be identified in the readers' comments can be categorised as non-recognition or misrecognition of transgenderism and, as already argued, non-recognition is itself humiliating. Some examples of non-recognition in the readers' posts have already been provided, such as the characterisation of the defendant's gender identity as a symptom of mental illness and the references to them as 'really' girls. However, there were other ways of erasing or misrepresenting transgenderism that are worthy of some attention as they all serve to humiliate trans identities.
9.12 In the posts about Barker, Wilson and McNally, there were a number of references to their supposed inability to have sex.
petemus1- How can a girl take another girl's virginity ??? puzzled!!( Mail Online, 21.03.2013)
Ross - How dose (sic) one lose there (sic) verginty (sic) to the same sex ( Mail Online 07.03.2013)
Tracey - How dim do you have to be to miss the vital appendage????? Did they miss the Sex Education Leason? (sic) ( Mail Online, 06.03.2012)
9.13 These posts reflect, what Tamsin Wilton has called, genital identities, which are predicated on the assumption that 'a body with a vagina and uterus is allocated meanings that include its being for penetration/impregnation by a penis, while the meanings of a body which has a penis include its being for penetrating/impregnating a vagina/uterus' (Wilton 1996: p.104). Such attitudes are underpinned by the heteronormative view that 'real' sex involves penile-vaginal penetration and requires a 'real' penis. Once again, there is a positioning of transgender people as 'unreal', 'inauthentic' and 'performers'.
9.14 There was also frequent use of 'humour' in the posts as the following examples indicate.
Craig - Well MI5 are looking for talented recruits… ( Mail Online 18.01.2012)
Peter - She/He would give mrs doubtfire a run for her/his money. Mail Online 18.01.2012
Steve - My Wife wants me to disguise myself as Brad Pitt for some reason!!!!!! ( Mail Online, 06.03.2012)
Dennis Wright - She will think all her Chrismas [sic] have come at once - Locked up in a Womens [sic] Prison!! ( The Huffington Post UK, 12.11.2015)
9.15 Thompson (2011) has argued that humour plays a key role in the discrimination and oppression of marginalised groups of people. 'Humour can tell us a great deal about what is valued in a culture, as well as what is feared or rejected … humour is used to set down boundaries, thereby defining the parameters of that particular cultural formation.' (Thompson 2011: p.27). It frequently relies on stereotypes, which themselves are dehumanising and can result in, what Thompson (2011) calls trivialisation. In this context it is being used as a strategy of embarrassment at best and humiliation at worst, placing the defendants outside the parameters of the cultural formation of the heterosexual matrix.
9.16 What is interesting to note about the readers' comments is that whilst most comments forums have strict guidelines, regulated and enforced by forum moderators on what can and cannot be said because they recognise that 'incivility in the forums is toxic to their brand identity and serves to antagonise, polarise and silence the very readers they are trying to attract' (Santana 2014) no such codes of civility were extended to what it was permissible for readers to write about Barker, Wilson, McNally and Newland.
10.1 This article has critically analysed how Barker, Wilson, McNally and Newland were subjected to shaming and humiliation processes and were presented as objects of disgust as a result of their transgression of gender norms in online news media and reader comments forums. The findings from the critical discourse analysis suggest that, although they were convicted of sexual assault and, in Wilson's case, 'obtaining sexual intimacy by fraud', the 'crime' they actually committed and the one they were punished and shamed for was their failure to conform to sex-gender norms. By analysing how the cases were represented in the media and received by readers, it has illustrated the intertextuality of the law. Jurisprudence cannot be considered in isolation from the wider discursive networks that construct, reconstruct and reproduce the gender non-conforming subject. When shame, humiliation and disgust are evident in a legal ruling they co-exist with, support and reinforce those same shaming and humiliating processes in other areas of social life. If Karstedt (2002: p.299) is right that emotions, such as shame, humiliation and disgust act as a 'valuable barometer of social morality', we must ask ourselves what the convictions of Barker, Wilson and McNally tell us about social morality in the United Kingdom in the 21st century and what does it tell us about the position of queer and transgender people in relation to it. It would appear that social morality, what as a society we believe to be right and wrong, acceptable and unacceptable, legitimate and illegitimate, is predicated on a two sex/gender model that is oriented towards heterosexuality and, as a result excludes genderqueer and transgender people.
10.2 The sex acts the defendants engaged with the complainants were all consensual, the ability of the complainants to give their consent was never in doubt and there was never any question that the defendants had coerced the complainants into engaging in sexual intimacy with them. Their 'crime' was their failure to share their gender history with the complainants. There is no requirement or even expectation that an individual would disclose any other aspect of their current or past identity and experiences, such as race, ethnicity, sexuality, disability, how many sexual partners they have had, whether they have ever had any sexually transmitted infections, whether they have a criminal record and so on. It would appear through these cases that the only people who are legally required to make disclosures about their history are transgender and genderqueer people. The logical conclusion, therefore, is that, if Barker, Wilson and McNally committed a 'crime' it was because they were trans or genderqueer. It was their failure to conform to a binary sex/gender model that assumes congruity between sex and gender that provoked disgust and they were subjected to shaming and humiliating process because of their genderqueer or transgender status.
R. v McNally (Justine)  EWCA Crim 1051;  2 W.L.R. 200 (CA (Crim Div))
R. v Wilson (Christopher) Unreported March 6, 2013 (Scotland)
R. v Newland (Gayle)  November, 12, 2015 (England)
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3 http://www.bbc.co.uk/news/uk-england-surrey-17256641 Accessed 01/08/2015
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