Solicitor Harriet Wistrich compares the way the courts handled the cases of Justine McNally and eight undercover police officers.

Justine McNally, an 18-year-old lesbian, was sentenced on 21 March 2013 to three years in prison for 6 counts of sexual assault by penetration against her 16-year-old girlfriend. There was full consent to the sexual contact at the time, but subsequently the victim discovered that her boyfriend, “Scott” was in reality a girl. The sex amounted to a crime of fraud because she had posed as a boy and deceived her as to her gender.

The prosecutor commented:
‘Because of the abuse of trust, the trauma to the victim, and the peculiar circumstances, this is an extraordinary case.
‘She obtained consent to physical intimacy between them by fraud. The case involves a very serious abuse of trust.’

Change the word “she” to “he” in the above sentence and in fact you would be describing the acts of a number of undercover police officers who deceived political activists into entering long term intimate sexual relationships. Yet the police officers responsible for this fraudulent activity, which has caused severe psychological damage to many of those who were deceived, are not facing criminal charges. Instead, their employers, the Metropolitan Police, who are currently defendants in litigation brought by the women, are fighting a vigorous battle to get the cases thrown out or heard in secret and thereby avoid being held to account.

In what way are the cases different that would warrant such a contrasting approach?

In the case of Justine McNally, who first made contact with her victim on line when she was 13 and the victim 12, she has been described as having a troubled and unhappy upbringing and difficulties going through puberty. The police officers, on the other hand, had to undergo robust psychological testing before being permitted to work undercover. Justine came from a broken home, whereas the police officers that commenced intimate relationships with the women, lasting in some cases for many years, were all married and had their own children. Justine relied on her own adolescent ingenuity to invent and maintain her disguise, whilst the police officers were trained in-depth in the art of winning over trust and were resourced with false passports, credit cards and had full back up from a team behind them to ensure that their true identities remained hidden at all times. Whilst Justine appears to have been motivated by a search for love and a confused exploration of her gender and sexuality, the police were motivated by the wish to gather intelligence about the activities of the women and their friends who were engaged in movements to promote social justice and to fight racism and other forms of oppressive conduct.

But perhaps the real crime was that Justine used a strap on penis, whereas the police officers had real ones. Perhaps it was that most outrageous insult that resulted in the three-year prison sentence for the teenager, who was not aware she was committing a crime, whilst the police officers remain comfortably in their jobs or on their generous state paid pensions.

Its good to know we live in a fair, free and democratic society where all are treated equal by the law.

Harriet Wistrich is a founder member of Justice for Women and a solicitor for Birnberg Peirce and Partners. She is currently representing 8 women who are bringing a claim against the Metropolitan police arising from their experience of being deceived by undercover police officers.