Defining Consent: The Case of Jennifer Staines
We have seen a number of discussions of the case of Jennifer Staines, 23, who was convicted of sexual assault by deception by creating a fake social media presence as a man and pursuing sexual relationships with three girls. We have seen numerous discussions refer to this case as 'sex by deception', despite the fact that one victim was 12. 12 year olds cannot consent. It is automatically child sexual abuse or child rape depending on what occurred. In this case, it is child sexual abuse rather than child rape. There are no discussions to be had about mitigating circumstances in the sexual abuse of a child. Staines was 17 years old but made a choice to target a child. It is worth noting that Staines was convicted of one case of sexual assault and two counts of indecent images of a child.
Victims B and C were 17 years old, and Staines 21 and 23 respectively, when they engaged in sexual activity with Staines identifying as a man. We have seen numerous people suggest that Staines was vulnerable due to gender dysphoria and that that is a mitigating factor in their choice to engage in sexual assault. As we have written in other cases involving people who are vulnerable or suffering from trauma or mental illness, only in extremely rare cases are there mitigating circumstances which limit criminal liability. Trauma and other mitigating factors can impact sentencing but not criminal liability for the crime itself. Being a vulnerable person does not negate the fact that consent must be freely given without deception. In this case, Staines pursued two girls whose consent was negated by Staines' deception (the first being legally incapable of consent due to her age).
There are valid comparisons that can be made between this case and that of undercover police officers who pursued sexual relationships with women they were spying on. We believe the failure to prosecute these officers for sexual assault and rape, and any supervising officers who knew about the relationships and did not intervene, are serious miscarriages of justice. Deception invalidates consent and it is an absolute travesty that these police officers have never been held accountable for their crimes. The failure of the criminal justice in these cases does not mean that other perpetrators, no matter how vulnerable, should not be held accountable for their choice to violate the consent of another person. It means that these police officers should have be prosecuted.
We need wider discussions about consent and this needs to start with mandatory sex and healthy relationships education, but consent must always be understood as freely given without deception or coercion.
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