Invitation: Queer Perspective on Law, SOAS, Feb 7 4-6 pm, Law, Ethics and Politics of Disclosure

The SOAS Centre for Gender Studies

and the

SOAS Centre for the study of Colonialism, Empire and International Law

invite you to join us for:

QUEER PERSPECTIVES ON LAW II

Law, Ethics and Politics of Disclosure

room 4426, SOAS

Friday 7th February

4pm – 6pm

This workshop follows on the success of the Queer Perspectives on Law
workshop. It will focus on legal, ethical and political issues
surrounding disclosure/non-disclosure of facts considered material to
sexual intimacy.

In 2012, the Israeli Supreme Court upheld the conviction of Sabbar
Kashur for rape by fraud. The ‘fraud’ in this case consisted in the
fact that he was considered to have ‘deceitfully’ misrepresented
himself as a Jew to a woman with whom he had sexual intercourse. In
2013, the English Court of Appeal upheld the conviction of Justine
McNally on six counts of assault by penetration. The ‘fraud’ in this
case consisted in the fact that she was considered to have
‘deceitfully’ misrepresented herself as a man to a woman with whom she
had sexual intercourse. The McNally case is preceded by similar cases
in the UK, the US and Israel. The indictment and convition of Kashur,
McNally and other individuals has led to public and legal debate
surrounding questions of sex and nationality or sex and gender, and
their interconnections.

The workshop will examine  how the state’s punitive power in such
instances is applied so as to preserve the national-gender-sexual
order.  It will include presentations from Prof Aeyal Gross and Prof
Alex Sharpe followed by comments from Dr Hedi Veritbo and Dr Sarah
Keenan and general discussion. Paper abstracts, below, and flyer
attached.

Performativity and Crossing Gender and Nationality Borders in the
Case-Law on Rape by Deception
Professor Aeyal Gross, Tel Aviv Univeristy

Sabbar Kashur was convicted for deception relating to national
identity, with the court ruling that he had “deceitfully”
misrepresented himself as a Jew to a woman with whom he had sexual
intercourse alongside deception regarding his personal status. His
indictment and conviction led to public and legal debate on questions
of sex, nationality, and the connection between the two. This article
discusses the Kashur case and other instances in Israel and across the
world in which people have been convicted for a similar crime, while
in the latter, unlike in the Kashur case, deception regarding gender
identity was claimed. The article proposes an integrated examination
of the case-law dealing with national impersonation and gender
impersonation and considers how the criminal law rules governing rape
by deception that relate to the “identity of the offender” serve to
preserve the gender-national order from prohibited boundary-crossing
that challenges the stability and “naturalness” of identity categories
that lie at its base.

The article considers how the state’s punitive power in such instances
is applied so as to preserve the national-gender-sexual order. The
Kashur case is examined through the prism of the “passing” phenomenon,
where members of minority groups that regard themselves as deprived
tend to present themselves, in certain social circumstances, as
belonging to the majority group so as not to be exposed to racist or
discriminatory treatment. The court decisions convicting people who
“passed” as members of groups to which society does not regard them as
“naturally” belonging to are critiqued from a perspective that takes
nationality, like gender, to be a type of “performance,” which does
not have a separate ontological status from the various actions that
constitute its actuality. Like gender signals, national signals are
exhibited-performed and, in effect, constitute the identity that they
are allegedly expressing. The case-law that is analyzed demonstrates
how deviation from the nationality, just as from the gender, that
everyone supposedly “has” and is forcibly imposed on us leads to
punishment. This is particularly the case when the deviation occurs in
the framework of an intimate relationship with another person, in a
way that violates the national-gender-sexual order.

Sexual Intimacy, Gender Variance and the Criminal Law

Professor Alex Sharpe, Keele University

This presentation, which will begin with a brief film clip from the
1992 film, the Crying Game, will challenge the notion that
non-disclosure of gender history to sexual partners in advance of
sexual intimacy is unethical. It will then challenge the legality and
public policy interest in prosecuting transgender people on the basis
of ‘fraud’ in these circumstances. In doing so, it will (a) highlight
inconsistency in judicial constructions of non-consent, (b) contest
the view that a right to sexual autonomy necessarily trumps a right to
privacy (this will involve both a balancing of harms and recognition
of the fact that non-disclosure of gender history does not,
ontologically speaking, constitute deception) and (c) highlight how an
emphasis on complainant determination of the materiality of gender
history promotes transphobia/homophobia.

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