Judge David Stockdale QC is a serious man with a hangdog expression and a lugubrious manner. He speaks in a basso profundo and looks as if he may never have smiled in his life. But he is measured and scrupulously fair: the perfect lawyer to preside over last month’s retrial of 27-year-old Gayle Newland in Manchester. In September 2015, Newland was convicted of sexually assaulting a close friend while disguised as a man, and sentenced to eight years in prison. But that conviction was overturned on appeal, after it was ruled that the original judge’s summing up had been biased in favour of the prosecution.
It is 19 June, with temperatures reaching 33C in parts of Britain – the hottest June day since 1976. The air-conditioning, which cost £5m to install, has failed in courtroom five. “I am going to remove my wig,” Stockdale says. “Members of the jury, I can only apologise for the heat.” An ancient contraption is wheeled in to blow cold air across the room.
Stockdale tells the jury that this case has been heard before, but that they are not to speculate about why it is being heard again. “Its facts are, you may feel, rather unusual and certainly got a good deal of press coverage at the time,” he says as he outlines the case. But none of the jury appears to recognise the story.
And it is an astonishing case, as complex as it is occasionally lurid. Newland’s first trial centred on the evidence of two compelling key witnesses (her and the complainant), a bizarre online love triangle, an abrupt betrayal, and a pink prosthetic penis, which Newland wore while disguised as a man. Her defence argued that the complainant was in a relationship with Newland, and fully aware that Newland and her male alter ego, Kye Fortune, were one and the same. But the prosecution disagreed, and argued that when she discovered her boyfriend was, in fact, a close female friend, her world fell apart.
On one level, that first trial felt like a one-off, without precedent. But on another, it resonated as a very modern tale of loneliness and love in the digital age: here were two women whose virtual world had become more real to them than their real one.
The second trial begins with more than two hours of video evidence: the recorded statement that the complainant Chloe (not her real name) gave when she first went to the police on 3 July 2013. She is an attractive woman, also 27, brought up in a Methodist family. Today she gives evidence behind a curtain, telling the jury that her dream was always to dance professionally on cruise ships, to travel and find a good husband. She had discovered a new confidence as a student at Chester University, after ending an abusive relationship with a boyfriend.
Kye Fortune first contacted her on Facebook, she says. The photographs showed a handsome, athletic, half-Filipino young man, and he wanted to be friends. They soon became close, regarding each other as boyfriend and girlfriend. Chloe was desperate to meet him (he was also a student at Chester), but for more than a year he refused. Kye said he had been in a disfiguring car accident, that he had a heart condition, that he was seriously ill with cancer, and Chloe believed him. Distraught, she tells the court she was a “pathetic and naive idiot” who had “the worst judgment in everything”.
But Kye wanted to introduce her online to one of his best friends, Gayle Newland. After the two women met, they found they had a lot in common, Chloe says – going to a concert together, watching films, playing netball, hanging out. The thing she liked most about Newland, Chloe says, was that Kye trusted her totally.
Chloe says more than a year passed before Kye agreed to meet her, at a hotel in Chester, where they had sex. They met at a hotel once more, and then for three months at Chloe’s flat every Sunday, and sometimes midweek. There were strict rules to these encounters, Chloe tells the jury. Kye told her he was so anxious about his appearance that she would have to wear a blindfold, and could not touch him because of his injuries. He said his chest was bandaged because of a “nozzle” attached to his heart, and that he had to wear a compression-style suit to regulate his heartbeat. She accepted the strange conditions because she loved him, she explains; he had bought her an eternity ring, and she told everyone they were getting married. Once, Chloe admits, she looked out of her bedroom window after Kye had left, and saw Newland driving off. But she assumed that Newland must have given Kye a lift, and that he was sitting in the passenger seat.
At times, Chloe breaks down and her voice becomes muffled. At others, she is combative, asking why she would be in court having her reputation shredded if she was making this up. But her dates do not always add up, and sometimes she cannot remember simple information. For example, during this trial she reveals a significant new detail: that she let Kye tie her hands behind her back when they had sex. Nigel Power QC, Newland’s defence barrister, a small man with a mighty quiff, is taken aback: “Why?” he asks.
“Because he didn’t trust me not to touch him or take my blindfold off.”
“Were you content to have your hands tied behind your back?” Power asks.
“I was, unfortunately,” Chloe replies. “If this is the way we have to do it for a couple of months, so you trust me, then fine.”
“How often did he tie your hands behind your back?”
“Every time.”
Why, Power asks, has it taken her four years to tell anyone this?
“I must have forgotten to, because I was suffering from post-traumatic stress disorder and depression,” Chloe says. “In the grand scheme of things, it wasn’t important if he did it once or twice. I don’t remember little details.”
“But you said it was every time,” Power says.
Newland sits silently in the dock. She has a number of tics: sometimes she blinks or twitches when she hears the evidence against her; occasionally she sits open-mouthed in protest.
Gayle Newland’s mother Julie and father Brian are here every day. Outside the courtroom, there is no division between family and the press, and the Newlands are friendly without encouraging conversation. Julie reads books and magazines, while Brian talks to his daughter’s lawyers. At one point he introduces me to Julie, and jokingly asks if I can get rid of the photographers waiting for Gayle.
Court five is a small room with a balcony for members of the public. Some days, it is crammed with students and Newland’s supporters. Even though she has never given any indication that she identifies as a man, Newland’s case has been taken up by transgender activists, who believe the issues of consent it raises is something they have in common. Does it matter, they ask, if Chloe thought she had fallen in love with a man when, in fact, it was Newland? If Newland was found guilty, would that mean that someone who was transgender and did not inform a partner might also be guilty of sexual assault?
Newland is not the first British woman to have been charged with sexual assault after disguising herself as a man. In a world where sexuality is increasingly fluid, there have been a number of gender fraud cases. In 2012, 20-year-old Gemma Barker was convicted of sexually assaulting several friends while disguised as a man. In 2013, Justine McNally was convicted of six charges of sexual assault while masquerading as a man; and in the same year Christine Wilson, who had been diagnosed with gender identity disorder, was placed on the sex offenders’ register after pleading guilty to sexual relationships with two teenage girls while disguised as a man. Last year, 23-year-old Jennifer Staines was sentenced to 39 months after pleading guilty to sexual assaults on three teenage girls; she admitted contacting them using fake social media profiles as “Jason”.
Newland’s trials have also raised broader issues around consent: how many people are truly who they say they are? If somebody lies about their wealth or status or background, does that mean a partner can claim they only consented to sex with a different person? Meanwhile, social media platforms are struggling to tackle the epidemic of false identities on their sites. In its 2014 annual report, Facebook admitted that fake accounts make up between 5.5% and 11.2% of its 1.3bn “monthly active” users.
In court, the evidence can leave you dizzy with its blurring of real and imagined worlds. At one point, Chloe is asked how she thought Kye could have climbed the stairs to her flat when he was so weak. “Gayle helped him,” she replies, as if this is obvious, and as if she still believes, in that moment, that Kye Fortune and Gayle Newland are two different people.
Eventually, Chloe tells the jury, she became suspicious. On the final occasion they had sex, “I grabbed for the back of his head and my hand got caught on something. It did not feel right.” She ripped off her blindfold. “And Gayle was just standing there with this strap-on on, and I couldn’t believe it. I ran into the bathroom and locked myself in. She was banging on the door saying, ‘I’ve got to explain myself.’ I didn’t have any clothes on. I thought, ‘I need to get clothes and get out of the house.’ I felt it was just a stranger who’d had sex with me. She said, ‘I’m not going to hurt you.’ I said, ‘I don’t even know who you are – you’ve psycho messed me up.’”
Chloe’s voice quivers and she bursts out crying.
“Sorry,” she says.
She tells the court that she got dressed and ran out of her flat and into the street, with Newland following her. CCTV footage captured them having an animated exchange (there was no sound) before Newland ran off.
After that, Chloe’s life fell apart, she says. “I hated myself. I felt filthy, disgusting. There were not enough showers in the world to clean me. So I got it into my mind that I should take a blade to my leg.” She offers to show the jury the scars where she has self-harmed. Since 2013, she says, she has been too self-conscious to wear shorts.
Shortly before Nigel Power begins his cross-examination of Chloe for the defence, he leans across and whispers quietly to his legal team: “Can we make sure the dildo is brought in and positioned discreetly?” But that proves impossible. When the prosthetic penis is placed on the table in front of him, you can almost smell the rubber. It is large and thick, with testicles that don’t move.
Power asks Chloe if it is conceivable that she repeatedly mistook Newland for a man. “Sexual intercourse is intimate, it’s up close and personal, as Americans say,” he argues. “If you don’t see your lover’s face, do you not sense her in other ways?” True intimacy, he says, is about touch, smell, breath, a tone of voice. “Do you really need your eyes to know who you are with, in the most intimate of moments? Of course not.”
When he presents the penis to the jury, Chloe breaks down, humiliated and angry. “You think it’s hilarious, don’t you?” she tells the lawyer. “It’s my life, but you think it’s a joke.”
Power suggests it was obvious to anybody that Kye and Newland were the same people right from the start. All their details were identical: the same birthday, the same unusual course (marketing and creative writing) at the same university, the same taste in music and films, the same kind of dog with the same name, Gypsy, the same voice. Kye had told her they sounded similar, because they came from the same part of the country, Chloe says, and had been friends since childhood.
At noon on Thursday 22 June, Newland takes the oath. When she was first convicted, newspapers tended to use the same picture of her: hair greasy and parted severely to the side, chin plagued with spots. Today, she is very different: hair washed, skin clear, often smiling with friends, dressed in smart black trousers, flat shoes, a white shirt. In the witness box, she is composed and reasonable, relating the most fantastical story in a down-to-earth manner, explaining why and how she created Kye Fortune at the age of 13.
“I was pretending to be a boy for a variety of reasons,” she tells the court. “All my best friends were boys at primary school, then I went to an all-girls school and was out of my comfort zone. I knew I was attracted to girls, but didn’t realise what it meant. I didn’t know any gay people. You’d use the world lesbian for name-calling.” But as Kye Fortune, she could enter online chatrooms and talk to girls. It didn’t feel wrong: she was only herself, pretending to be a boy.
By the age of 15, Newland began building Kye’s profile on Facebook. She discovered photographs of a young American-Filipino man, and decided the face suited Kye, going on to use hundreds of his photos over a period of years. If you looked closely – not even that closely, to be honest – none of it added up. Kye was supposed to live in Chester, but nearly all the photographs featured American-looking houses in the background.
As Newland gives evidence, her tics disappear and she grows more confident. She tells a very different story, taking the jury back to 2011, when she and Chloe were both students at Chester University, and met at a gay night called Gender Blender at a local nightclub. That night, Newland says, Chloe asked if she was gay. She said yes, and claims that Chloe told her she was gay, too, and struggling with her sexual identity.
For the first time, Newland tells the court, she shared with another person the coping mechanism she used to help her meet other women: Kye Fortune. So when “Kye” asked Chloe to be friends on Facebook a couple of days later, Chloe was fully aware it was an alias. And from there, their increasingly complex relationship developed.
Chloe denies this version of events: she claims she met Newland for the first time at a library.
Like Chloe, Newland says the relationship gave her new confidence. As Gayle, she took Chloe home to the Wirral to meet her parents a number of times – the first time she had taken any friend home. Her parents liked Chloe. She in turn told Newland that hers was the sort of middle-class upbringing she wished she’d had. When Chloe had a problem with her landlord, Newland’s father spoke to him on her behalf, pretending to be her father.
Newland tells the court that she did not know what to do when their relationship became sexual. She says she was a virgin, and that it was Chloe who asked her to buy the prosthetic penis. They agreed to conduct the sexual part of their relationship as Chloe and Kye, she insists. “Both of us struggled with our sexuality. I guess we were two stupid girls experimenting with our sexuality. It felt easier, and it was a bit of fun. And it kept things exciting. A bigger reason for Chloe is that she had told everyone she was in a relationship with a man, and for whatever reason that was a big thing.”
Chloe denies this in the strongest terms. She is not homophobic, she says, and if she were gay, she would have been happy to acknowledge it.
In cross-examination, prosecutor Simon Medland QC is clever and fastidiously polite, until he turns the screw. Medland suggests to Newland that the reason Chloe ran out of her flat on 30 June was simple: having lifted the blindfold, she had discovered for the first time that her boyfriend was, in fact, Gayle.
“I disagree,” Newland replies quietly. “I don’t believe anybody would wear a blindfold for the period she’s saying, in the scenario she’s saying. I don’t believe anybody would not be able to tell the difference between a male and a female, and I don’t feel anybody would not be able to tell that it was their best friend.” From the balcony, Newland’s father gives her a supportive thumbs-up. Newland says she had told Chloe a few days before the confrontation caught on CCTV that she was going to come out to her parents; she believes this is what brought things to a head.
One of the few uncontested facts in the case is that, on the same evening, Newland tried to kill herself. She jumped off a bridge into a canal in Mollington, Cheshire, injuring her leg. The prosecution argues that this is evidence of her guilt: she tried to take her life because she had been caught out, Medland tells the jury.
Newland insists the truth was anything but. “I was desperate. I was heartbroken. I don’t deal well with my anxiety, with my emotions. She was my world, and I believed I’d lost my world.” When the police asked her at the time why she jumped, she told them, “I have done something I shouldn’t have and now my friend can’t forgive me.” But in court, Newland says this was not a reference to sexually assaulting or deceiving Chloe. “I had called her crazy and tapped. It was the worst thing I could have said,” she says. For once, Judge Stockdale looks confused. “Tapped, my lord, is a slang word for somebody unstable,” Power informs him.
On the night of their confrontation, Chloe sent Newland a series of texts, which are read out in court. One read: “Are you for real? You should be locked up for what you’ve done to me. You raped my life, my heart and soul. No amount of counselling will make up for this. You are pure evil, Gayle. You are sick. I only have one question: why me? If I had not ripped off the mask I would not have known the evil truth.”
Newland replied with an email entitled Explanation As Best I Can Right Now. “I know Kye is who I am, it’s my personality,” she wrote. “I had to make up lies to cover up the initial lie. It turned from a seed into a tree. I felt guilty every day, but I knew you needed me.” Unsurprisingly, the prosecution considers this Newland’s confession.
As much as anything, this trial turns on the ambiguity of language – how it is possible to interpret almost anything in more than one way. You could read Newland’s email as a confession: the lie about Kye had grown until it resulted in a series of sexual assaults. Or you could believe Newland’s interpretation: that the lie about Kye grew from seed to tree as the two women built an elaborate narrative around their relationship.
In her initial statement to the police back in 2013, Newland had referred to a blindfold that would sometimes slip, allowing the complainant to see her. But at both trials she insisted there had never been a blindfold. It seemed a damning inconsistency: why did she change her story, Medland asks. Newland says she lied in her original statement to allow Chloe “a way out – an olive branch, almost”. She says she was still in love with her, and did not want to portray her as a total fantasist. “I never for one second thought we’d go to court. I especially never thought she’d come to court and look me in the eye and say the things she did. The second she did, everything changed. I never once lied in court.”
But perhaps the most incriminating evidence is that Kye Fortune has considerable form. Three women are named in court who say they were duped into virtual relationships with him. The most intense, with a woman named C, began two years before Newland met Chloe, appeared to stop while she was with Chloe, and resumed briefly after Chloe went to the police. C had been besotted with Kye, regarding him as her boyfriend, and becoming jealous of other women in his life, by turns devastated and furious that he would not meet her in person. In one memorable message to Kye, C said, “It’s times like these I wish I wasn’t in love with a fucking ghost.”
It looks bad for Newland when these messages are read out in court. On one occasion, Kye writes: “You’re not my girlfriend. Just leave me the fuck alone. I’m having a breakdown.” C replies: “If I found out the truth, I’d probably hate you. I’m 100% real, but who are you?”
When C, or any woman for that matter, tried to meet Kye, he retreated. Cancer, heart failure, car crashes: all the familiar excuses. So what made it different with Chloe, Newland is asked. Simple, she says: Chloe knew that Kye was her, that his persona was just one aspect of their relationship. “The only way I can describe it is, meeting up as Kye was code for doing things that were sexual. I think it was the only way we were comfortable doing things sexual.”
C eventually rumbled Kye Fortune. In a written statement to the court, she admits it didn’t take much detecting. She examined his Facebook page and looked at the profiles of his friends. Before long, she came across Gayle Newland and noticed the same dog, Gypsy, in a picture on her page. She looked more closely at her details: every one of them was the same. She phoned Kye, disguising her own number, and asked for Gayle. “Speaking,” Newland replied instantly.
It is inarguable evidence that Newland was duplicitous and manipulative, but it is also used as evidence in her defence. If C had uncovered Kye so easily, without even meeting him, how conceivable was it that Chloe had not?
The trial lasts just over a week. At the end of each day, the reporters try to disentangle truth from fiction, and find it impossible. But we all agree that if we were on the jury, we would not convict; that there is not proof of guilt “beyond a reasonable doubt”. We play the court reporter’s guessing game: who will be chair of the jury? Again, we agree: a woman on the right-hand side at the front who has scribbled ferociously throughout and looks rather forbidding.
Outside the court, I talk to Newland and her parents Julie and Brian. Newland is wearing a white shirt with ties dangling from the cuffs. I ask her how best to describe the shirt. “Stylish,” she says with a smile. Then she changes her mind. “No – trendy.”
She is terrified about the verdict. Julie talks to me briefly about her family; Newland, who went to the £12,800-a-year private school Queen’s in Chester, has two older brothers. “It’s funny how people always say parenthood gets easier when they grow up,” Julie says. “It doesn’t, does it?” Brian, who used to run a building firm, sits outside court with his hands wrapped across his chest. He looks relaxed but tells me he is tense.
On Thursday 29 June, Judge Stockdale receives a note from the jury. They retired on Monday afternoon, three days ago, and now say it will be impossible to reach a unanimous decision. He tells them he will accept a 10-2 majority verdict.
At 2.15pm, we are called back. Newland is just ahead of me as we walk into court, taking deep breaths. The judge asks if the jury has reached a decision. The chairman, a young man with a fierce moustache, says yes as Newland weeps hysterically. Her wailing is echoed by a quieter weeping upstairs in the galley: her mother Julie. The jury finds Newland guilty by a majority of 11-1, on three charges of sexual assault by penetration. The forbidding-looking woman on the jury cries as the verdict is read out, and the youngest-looking member also dabs her eyes.
Judge Stockdale grants bail until sentencing on 20 July, in light of the fact that Newland has always turned up for her hearings. “The fact I am granting you bail now is no indicator of the sentence you are likely to receive,” he says with quiet severity. “On the contrary, the overwhelming likelihood is that you will receive a significant immediate custodial sentence. You should be in absolutely no doubt of that.”
Newland has been found guilty for a second time, with no obvious grounds for further appeal. She looks bewildered as she is told she will be placed on the sex offender register, shaking her head. “Why sex offender?” she says to herself between tears. “Why sex offender?” She stands up in the dock, staring out of the window. “I can’t go back to prison,” she says. “I can’t.”
But next week, she almost certainly will – and possibly for a long time. If these final scenes were another brilliantly manipulative performance by Gayle Newland, it may have been her best yet.