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Justine McNally is a British woman convicted of pretending to be a teenage boy in order to sexually assault a 16-year-old girl. An unsuccessful appeal against her conviction, McNally v R, was a landmark case surrounding rape by deception in the UK.
Biography
The victim, known only as "M", first met McNally on the online social networking game Habbo. McNally, 13 years old at the time, was using a male avatar and claiming to be a teenage boy named Scott Hill. Over the next three years McNally and M began talking on MSM, with M referring to "Scott" as her boyfriend. They also spoke on webcam a few times, with McNally presenting herself as male during the conversations, and spoke on the phone. As they got older, they became sexually interested in each other and began having phone sex. "Scott" would talk about what he wanted to do to M with "his" penis, talking about "putting it in".
In March 2011 McNally and M made arrangements to meet up for the first time in London just after M's 16th birthday, when they would under British law be allowed to have sex. McNally, now 17, was picked up from Euston Station by M and her mother while presenting as a boy, wearing a strap-on dildo down her pants to make it seem as though she had a penis. They met up four more times in the coming months. The first time they watched a film together and kissed, then went into a dark room where McNally penetrated M with her fingers and gave her oral sex. M then left and returned with condoms so that they could have sex and offered to perform oral sex, but McNally declined as this would reveal her penis was fake. M later claimed that McNally did penetrate her anally with the dildo, but this was not proven.
In the second meeting McNally once again performed digital penetration and oral sex on M. The third time they had a party and talked about sex, but McNally was not interested. The fourth and final encounter, in November 2011, was when the truth came out. M's mother had become suspicious about McNally and accused her of being a girl. McNally admitted this was true and showed M her Facebook profile, revealing her real identity and confessing that Scott Hill's name and photo were from a boy at school. M ended their relationship, and her mother reported McNally's actions to her school on 7 November. The school's headmaster contacted police after McNally admitted she had had sexual contact with M and M was interviewed by officers, telling them that she would not have consented if she had known McNally was a girl.
McNally was charged with seven counts of assault by penetration. She claimed that M had known she was a girl, but her story contained multiple inconsistencies and failed to explain why M had bought condoms before their first encounter, by which time McNally claimed M had known her true identity. McNally eventually pled guilty to six counts; a seventh, relating her alleged anal penetration of M, remained on file. She was sentenced to three years in prison on each count, ordered to register as a sex offender and given a restraining order banning her from contacting M or her mother.
McNally appealed her conviction in 2013, arguing that her offence did not meet the legal criteria for sexual assault. In a case before the Court of Appeal, Lord Justice Brian Leveson ruled that McNally's actions did constitute assault by penetration under the Sexual Offences Act 2003 as M's consent was conditional on McNally being a man. However, the court also commuted McNally's sentence, of which she had already served three months, to nine months in a young offender institution suspended for two years so that McNally could receive psychiatric help. She was ordered to remain on the sex offender registry.