While idly traversing the blogs just now in a successful attempt to find an excuse (almost any excuse) to escape from exam marking for a while, I came across a post by Steve Edwards fulminating against the depravity of producers of a UK ‘reality’ TV show called There’s Something About Miriam, where a group of blokes were tricked into trying to crack onto a stunning-looking pre-operative transsexual by the name of Miriam.
I can’t say I share Steve’s reaction. As far as I’m concerned, anyone crass and greedy enough to participate in a ‘reality’ TV show deserves just about whatever they get. As it turned out, though, these blokes ended up doing very nicely indeed. Apparently they immediately consulted a lawyer after discovering that they’d unknowingly been groping a bloke, a gambit that apparently had the intended effect:
Sky One has reportedly agreed to pay a reported £125,000 each compensation to the five men who were tricked into dating her . The British contestants on the show titled had threatened legal action because they were unaware of the star’s past.
I don’t think I’d be too troubled about groping a transsexual for that sort of money.
Apart from this completely prurient interest in the story, my attention was provoked by another blog post that Steve Edwards linked:
The six contestants’ case against Sky and Brighter Pictures, which is a subsidiary of Big Brother producer Endemol, is expected to include the claim that the companies conspired to commit a sexual assault on the grounds the men did not consent to being fondled by a man.
Now, I’m not an expert on sexual assault laws, but it seems to me that the plaintiffs in this case don’t have a legal leg to stand on. Their kissing, cuddling, and fondling of Miriam (a pre-operative transsexual) was entirely consensual on their part (as near as I can tell) and is no more sexual assault against them than if they had picked up Miriam in a bar and taken her home with them.
I’m not an expert on sexual assault laws either, especially UK ones, but I’m pretty sure this blogger’s opinion is wrong. There probably would be a problem in sustaining a criminal charge of sexual assault in Australia, because such offences usually require something resembling penetration. ‘Fondling’ might constitute some lesser common assault, and might contravene sexual harassment laws, but probably wouldn’t be a criminal sexual assault as such. But it might well amount to a civilly actionable trespass, which is no doubt why the Miriam producers decided to pay off the contestants instead of defending the threatened proceedings.
However, if we had been dealing in the area of criminal law, I don’t think there’d be any problem for a prosecutor in establishing lack of consent on the part of the blokes, at least in most Australian States, as this blogger seemed to believe. For example, section 61R(2) of the Crimes Act 1900 (NSW) provides that:
(a) a person who consents to sexual intercourse with another person:
(i) under a mistaken belief as to the identity of the other person, or
(ii) under a mistaken belief that the other person is married to the person,
is to be taken not to consent to the sexual intercourse, and
(a1) a person who consents to sexual intercourse with another person under a mistaken belief that the sexual intercourse is for medical or hygienic purposes (or any other mistaken belief about the nature of the act induced by fraudulent means) is taken not to consent to the sexual intercourse, and
(b) a person who knows that another person consents to sexual intercourse under a mistaken belief referred to in paragraph (a) or (a1) is to be taken to know that the other person does not consent to the sexual intercourse …
Fairly clearly, the contestants ‘consented’ to have sexual relations (albeit short of intercourse) with Miriam under a mistaken belief, induced by fraudulent means, that she was a woman.
As I observed above, however, the real problem for any criminal prosecution in the circumstances was the lack of penetrative intercourse by any of the contestants (as far as we know). Moreover, it seems pretty unlikely (given that s/he was pre-operative) that any of them would have been able to maintain a genuinely ‘mistaken belief’ if they’d actually reached the point of trying to sink the pork sword into Miriam (unless they were really really pissed). And if Miriam had been post-operative, a prosecutor might have had problems proving that s/he wasn’t in law a woman anyway.