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The addressing of people involved in a criminal court case.

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  • Registered Users Posts: 26,362 ✭✭✭✭Peregrinus


    There's no hard-and-fast rule about this. Judges are generally in charge of what goes on in their own courtrooms. The judges of a particular court can make a collective decision about this (and from the article you link it seems that the judges of the Supreme Court of BC and the Provincial Court of BC have done this) but I think it's mostly down to the individual judge, and they won't lay down any rule at all about the matter unless and until it becomes an issue, and my guess is that when that happens they will lay down whatever rule seems most likely to stop people pissing about and enable the trial of the matter to proceed without bickering. "Refer to people by their preferred pronouns" looks like a pretty obvious rule to me, but I'm not a judge.

    Whatever the rule is, there won't be one rule for defendants and another for everyone else. The defendant enjoys the presumption of innocence and has no greater or lesser right to a gender identity than the plaintiff, the witnesses, the counsel or the judge.



  • Registered Users Posts: 4,507 ✭✭✭political analyst


    Although the article was withdrawn, after pressure from activists by the Canadian legal professional magazine that had originally published it, I suspect that the prospect of a judge in any jurisdiction forcing a rape complainant to refer to an alleged rapist who is trans with the alleged rapist's preferred pronouns is unlikely, given the public outcry that sexual offences often cause.


    Here's a second article from the same author:

    In the second article, the author referred to the English case in which Maria Maclachlan, who was physically assaulted by a trans woman, was denied compensation by the judge for not referring to the assailant with the correct pronouns. However, the author also acknowledges that the Canadian context could be different.



  • Registered Users Posts: 23,695 ✭✭✭✭One eyed Jack



    Witnesses appearing for the prosecution are not entitled to refer to the defendant(s) however they wish.

    That’s an inaccurate representation of the position of the Judge in the case you’re referring to too -

    Wolf was ordered to pay a £150 fine, a £30 surcharge and £250 towards costs.

    However, Judge Grant refused to grant Ms Maclachlan any compensation, saying: "Compensation would not be appropriate, particularly due to the unhelpful way in which the victim was present [at the protest] and the way she was filming.

    "She was asked at different stages not to film but continued to do so.

    "Another factor I have to take in to account is the Twitter post that has been submitted that was posted after the case had been brought to the attention of the police and there were criminal proceedings pending.

    "It was foolish of her to post that tweet in the way that she did.

    "It was notable that when I asked Ms Maclachlan to refer to Ms Wolf as 'she', she did so with bad grace - having asked her to do so she continued to refer to Ms Wolf as 'he' and 'him'".

    https://www.standard.co.uk/news/crime/transgender-activist-tara-wolf-fined-ps150-for-assaulting-exclusionary-radical-feminist-in-hyde-park-a3813856.html?amp



  • Registered Users Posts: 26,362 ✭✭✭✭Peregrinus


    So, one of the articles by this person gets pulled by the journal editors, and the other - by your account - contains a basic misrepresentation of the facts of the case. I was neutral, but this triggers alarm bells.

    I'd be looking for the view of others on this topic. This person may have an ideological axe to grind that makes her possibly not an ideal guide to the subject area.



  • Registered Users Posts: 4,507 ✭✭✭political analyst


    The first article was pulled because, apparently, some lawyers who see themselves as allies of trans people thought it was transphobic but was republished on a different website.

    Let's say for the sake of argument that some people say (and are telling the truth but no verdict has been reached yet) they were sexually abused as children by a person who was born male and identified as male at the time of the crimes but now identifies as a transwoman. The person is charged. If the complainants give evidence at the trial, it would be perverse to require them to address the defendant by the defendant's correct pronouns. If they were, there would be outrage.



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  • Registered Users Posts: 26,362 ✭✭✭✭Peregrinus


    You can't expect the court to design their practice about this on the basis of "lets say for the sake of argument that the defendant is guilty but no verdict has been reached". Obviously, during the trial, no verdict has been reached. And, equally obviously, when no verdict has been reached, the court is not going to accept any position based on saying for the sake of argument that the defendant is guilty. You're on a hiding to nothing here.

    Also, this is a side issue. The question the court is interested in is not whether the defendant is a man or a woman; it's whether the defendant is guilty of the sexual abuse of a child. The answer to that question does not depend at all, to the slightest degree, on the defendant's gender identity or on how other people feel about the defendant's gender identity.

    So, if anybody is inclined to make an issue of this and the court has to adopt a rule, they will adopt a simple, one-size-fits-all rule that makes no assumptions about anybody's guilt and offers minimal opportunity for anyone to express their views about the wholly irrelevant question of anyone else's gender identity.



  • Registered Users Posts: 4,507 ✭✭✭political analyst


    Then I'll leave it at that.



  • Registered Users Posts: 4,507 ✭✭✭political analyst


    In the light of a controversial case in Britain this week, I think it's justified to resume this discussion.

    The following recording of the Today programme (This episode was broadcast on 26 January 2023) on BBC Radio 4 is available for 4 weeks as of the time of this post.

    Nick Robinson asked Lord Ken Macdonald, the former DPP of England & Wales (2 hours, 51 minutes and 12 seconds into the recording) whether it's right for the criminal justice system to refer to a rapist as 'she' if that's what the rapist wants.

    Macdonald thinks that shouldn't automatically be the case but that it's difficult to see how one could have a full assessment of the situation to come to a final conclusion about that in the context of a criminal trial. He suspects that what is happening is "the line of least resistance".

    Macdonald also said that he's aware of one case in which the victim was required to refer to the rapist as 'she' in court - something that Macdonald said he found remarkably offensive.



  • Registered Users Posts: 28,924 ✭✭✭✭AndrewJRenko


    The complainants wouldn't be addressing the defendants. They would be giving their evidence, not talking to the defendants.



  • Registered Users Posts: 34,731 ✭✭✭✭o1s1n
    Master of the Universe


    'referring to the defendant as..' rather than addressing directly.



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  • Registered Users Posts: 10,253 ✭✭✭✭Marcusm


    I think it would simply be easier to continually refer to them as the perpetrator or defendant.



  • Administrators, Entertainment Moderators, Social & Fun Moderators, Society & Culture Moderators Posts: 18,722 Admin ✭✭✭✭✭hullaballoo


    This is really a social issue more so than a legal one but it is very exceptionally awkward when giving evidence of the nature required to prove a charge of rape (i.e. describing the act) while at all times trying to refer to the accused as "the accused" or "the defendant".



  • Registered Users Posts: 23,695 ✭✭✭✭One eyed Jack



    In the light of a controversial case in Britain this week, I think it's justified to resume this discussion.


    Nothings changed in terms of anyone’s right to be recognised as their preferred gender, but in terms of the provisions for anyone’s incarceration in England and Wales, I can see issues of human rights breaches which may arise out of the application of the new policy -

    https://www.gov.uk/government/news/update-on-changes-to-transgender-prisoner-policy-framework


    They will of course be fully aware of this case -

    https://www.bbc.com/news/uk-england-cambridgeshire-47334760.amp



  • Registered Users Posts: 4,507 ✭✭✭political analyst


    In hindsight, I should have put the title as "reference to people involved ....".

    But my point still stands.



  • Registered Users Posts: 4,507 ✭✭✭political analyst


    It's a legal one in the context of a trial. To compel a complainant in a rape trial to refer to a defendant who allegedly committed the rape as 'she' if the defendant self-identifies as a trans woman is worthy of comparison to compelling Lindsay Armstrong to hold-up the underwear she was wearing when she was raped during cross-examination by the defence in the trial - and then she took her own life before the rapist was sentenced.



  • Registered Users Posts: 4,507 ✭✭✭political analyst


    It's still connected to the controversial case that I referred to. In a case in which biological male commits rape and self-identifies as a trans woman, to require to the victim to refer to the rapist as 'she' is like compelling Lindsay Armstrong to hold-up the underwear she was wearing when she was raped during cross-examination by the defence in the trial.



  • Registered Users Posts: 23,695 ✭✭✭✭One eyed Jack



    It is I suppose, I mean I do see where you’re coming from - from the witnesses perspective really. The key thing to remember though in a criminal trial is that the witness is never on trial, and the person who is on trial accused of committing a criminal offence maintains the presumption of innocence, which means they also maintain the right to be referred to as their preferred gender as part of recognition of an obligation to be treated with dignity and respect on the basis that regardless of their gender or sex, they are a human being,



  • Registered Users Posts: 2,232 ✭✭✭TooTired123


    But the complainant being forced to refer to the defendant as “she” is simply disgusting and totally wrong. You agree, I’m sure?



  • Registered Users Posts: 2,232 ✭✭✭TooTired123


    Would there ever be a situation One Eyed Jack where you would find it in your heart to have compassion for a biological woman instead of persistently doggedly giving the advantage to the biological male?



  • Registered Users Posts: 23,695 ✭✭✭✭One eyed Jack



    I’m not sure what way you’re reading my posts but anyone, regardless of their sex or gender, regardless of my personal feelings on the matter, has the right to a fair trial. I’d rather a trial weren’t necessary in the first place because it’s an ordeal for the victims who have to give evidence as witnesses in Court, but if there has to be a trial, I’d rather it was a sound conviction which reduced the risk of an appeal on the basis that the accused did not receive a fair trial.

    It’s not giving an advantage to the accused, regardless of their sex or gender, to uphold their right to a fair trial. I don’t think it’s quite as straightforward as you’d like it to be either. Consider for example the case of Gayle Newland who was convicted of three counts of sexual assault. Using I suppose the same line of logic that you’re suggesting, would mean that Gayle Newland should be accommodated with sex offenders in the male estate on the basis that she is a danger to women?

    https://amp.theguardian.com/uk-news/2017/jun/29/gayle-newland-found-guilty-at-retrial-of-tricking-female-friend-into-sex


    Compassion for the victims of sexual violence has its place, but it’s misplaced in terms of suggesting that sex offenders should be accommodated in the estate which is the opposite of their victims sex or gender. If that were to be enacted, far more female sex offenders would be housed in the male estate. I think you’d agree it wouldn’t be in women’s best interests to argue in favour of such an arrangement -

    https://www.bbc.co.uk/news/magazine-32085076.amp



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  • Registered Users Posts: 10,253 ✭✭✭✭Marcusm


    I do understand that perspective. However, I suspect a woman who has had an organic object (ie a penis) unwillingly inserted in her would find it difficult to refer to the inserted as she/her!



  • Registered Users Posts: 10,253 ✭✭✭✭Marcusm


    There must remain a balancing of the human rights of both the accused and the complainant. I cannot see an issue with insisting that counsel and witnesses generally use the preferred pronouns but I think some additioanl consideration needs to provide to the complainant within respectful grounds.



  • Registered Users Posts: 2,232 ✭✭✭TooTired123


    How about we just place biologically male offenders in the men’s prison and biologically female offenders in the women’s prison?



  • Registered Users Posts: 23,695 ✭✭✭✭One eyed Jack



    Guidance from the CPS is fairly straightforward -

    In accordance with the CPS Trans Equality Statement 2019 prosecutors should address trans victims, witnesses, suspects and defendants according to their affirmed gender and name, using that gender and related pronouns in all documentation and in the courtroom. However, as recognised in chapter 12 of the Equal Treatment Bench Book 2021, there may be occasions where it is necessary and relevant to the particular legal proceedings for a person’s gender at birth or their transgender history to be disclosed. In cases where deception as to gender is a live issue such disclosure will clearly be necessary. Prosecutors reviewing sexual offence cases involving trans people need to be aware of, and sensitive to, all the relevant circumstances. Prosecutors should avoid making assumptions and should ensure the police supply as much information as possible to properly inform their decision making and ensure that correct terminology is used for each individual.

    https://www.cps.gov.uk/publication/deception-gender-proposed-revision-cps-legal-guidance-rape-and-serious-sexual-offences


    I wouldn’t be advocating that the defence are obligated to extend the courtesy of agreeing with the complainants position who is accusing their client of a criminal offence. It’s an even worse idea than hoping to influence a jury by having the complainant explain their choice of underwear. That sort of behaviour could just as easily have the opposite of the intended effect.



  • Registered Users Posts: 23,695 ✭✭✭✭One eyed Jack



    Knowing that rates of sexual violence are higher in the female estate than in the male estate, that’s not a good idea if you’re suggesting that compassion for their victims should dictate where sexual offenders are accommodated. I’d suggest that individual assessments which is the way it’s done now is a far better approach.



  • Registered Users Posts: 2,232 ✭✭✭TooTired123


    A prisoner with a working penis and scrotum, a man, doesn’t belong in a prison cell/bathroom/dining area/recreation area with a biologically female prisoner.

    In particular a prisoner with a penis who used that penis to attack a woman should only ever again be allowed in the company of biologically women or any children while supervised.

    Im afraid you’ll have to…flesh out…a little bit more the argument you apparently have about this opinion, as so far you’ve failed to give any explanation as to why vulnerable women should have to accommodate the feelings of a man.

    Where trans women ARE imprisoned is not and should not ever be the concern of biological women. If you think it should be, please explain how or why.



  • Registered Users Posts: 23,695 ✭✭✭✭One eyed Jack



    That’s a third and entirely different argument you’re presenting now. First it was you asking me do I have any compassion for women. I pointed out that I have compassion for the victims of sexual violence regardless of their sex or gender.

    Then you suggest it would be best to place female sex offenders in the female estate, and male sex offenders in the male estate, and I pointed out that knowing the rates of sex offences committed among women in the female estate are higher than in the men’s estate, that’s not a good idea if the determining factor is the sex or gender of the sex offenders victims - far more women would occupy the male estate, and probably 90% of the female estate would be men, given that the majority of their victims are young boys, males. That’s not to discount the possibility they are a danger to women, it’s just far less likely, and more likely that they would want to form relationships with women in prison in order to gain access to their children.

    As to why vulnerable women accommodate the feelings of men, I’m still perplexed by that one myself having worked with many vulnerable women who weren’t too sure themselves why they formed relationships with men who treated them like they weren’t even human. One case that immediately comes to mind by way of example is this one -

    https://www.irishexaminer.com/news/arid-30957282.html


    I don’t imagine women are a hive mind so there’s little hope you’ll have any greater insight than these women themselves could offer. When political analyst reminded me of the case of Lindsay Armstrong, I looked it up to refresh myself on the details, and it turns out his sister is quite a piece of work -

    https://www.chroniclelive.co.uk/news/north-east-news/she-deserved-to-die-1559731


    I couldn’t be sure if it’s because he’s her brother, or because he’s a man, or because she may bear animosity towards the victim for accusing her brother of rape is the motivation behind her actions. Then there was this case, and again, quite frankly, I can’t offer you any explanation for his daughter’s actions -

    https://m.independent.ie/irish-news/courts/daughter-asks-for-leniency-for-father-who-abused-her-29698987.html

    I don’t think where anyone is accommodated, regardless of their sex or gender, need be ordinary people’s concern. It’s entirely the responsibility of the prison service to determine where prisoners are or should be accommodated, not just based upon their gender or sex, or the nature of their offence, but considering a whole range of factors, including religious affiliation, intellectual capacity, disability and so on. The idea of anyone being transgender applies only to a vanishingly small minority of sex offenders, and I can assure you that where they are accommodated is of no concern to me whatsoever. I do recognise however that prisoners are entitled to be treated in accordance with human rights laws, much as that may offend some people’s ideological sensitivities who imagine they should be able to treat other human beings however they wish. There are laws which prohibit that sort of behaviour.



  • Registered Users Posts: 4,507 ✭✭✭political analyst


    What I had in mind was how the complainant refers to the defendant in the trial. In hindsight, I acknowledge that the title I created for this thread was inaccurate.



  • Registered Users Posts: 2,232 ✭✭✭TooTired123


    In short, you find it nigh on impossible to bring yourself to face what everyone else, even the odious N Sturgeon, is accepting (thank goodness) right now.

    That a person with a penis posing as an woman, especially a person who has raped a woman/women with that penis, doesn’t belong in a woman’s prison or anywhere else where vulnerable women and children are.

    Undaunted you intend to stick to your theory that if a man says he’s a woman then women just have to sit down and be quiet.

    And you’ll continue to spend hours on end typing long wordy paragraphs which say nothing really in order to avoid admitting that you were wrong.



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  • Registered Users Posts: 23,695 ✭✭✭✭One eyed Jack



    I’m somewhat relieved that at least it’s only words you intend to put in my mouth.



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