Many of the issues would depend on the exact laws of the state of Hampshire, and the state where the defendant was born.

For example, if born in Ohio, he would have a female birth certificate, as that state does not recognise transsexual transition.

If the state of Hampshire follows Illinois (IIRC) then they may not recognise an out-of-state Birth Certificate that has been corrected, it would depend on exactly what surgeries the defendant had had, and quite possibly by whom. For example, if by a surgeon not registered to practice in the US at the time of the surgery, even if registered afterwards, the surgery doesn't count for the purposes of Illinois BC registry, and by extension, may not count for any purpose.

All of this is moot if the state of Hampshire recognises same-sex marriage, UNLESS it follows Kansas. In that case, the defendant's sex is defined by "immutable characteristics at birth", and this has been interpreted as chromosomes. If the defendant has 47xxy chromosomes, or is a mosaic of 46xx and 46xy etc then they are neither male nor female, so may not marry anyone. The law is not clear here.

If the state of Hampshire rules that transsexual transition voids any existing marriage priot to transition - though there is no case-law on this - then the defendant may not be married to the first partner - who is described as a blonde, but whose sex could be either male (if the marriage was contracted before transition) or female (if contracted after). Unless in Massachusetts. Or in Texas, where who they could marry would depend on the county, no matter what Texas state law says.

Parnethetically...
No-one who is not TS will believe just how much of a legal schlemozzle TS people find themselves in

I will assume that the state of Hampshire follows the majority of US states. That same-sex marriage is forbidden, and that the defendant is legally male, having transitioned.

3-3-601 Statutory Rape - the alleged victim was 18 at the time, so is not covered, as any victim must be under 18. Open and shut.

3-3-325 Criminal Impersonation - who is the defendant alleged to have impersonated? Himself? What injury as been caused? What fraud has been committed? Assuming injury and/or fraud is proven, then showing a "mens rea" - intent - would be difficult.

3-3-101 Bigamy
The prosecution would have to prove that the defendant knew (or possibly ought to have known) that his former marriage was still valid. From the facts as stated, there is no evidence of this, but this would have to be investigated by the prosecution. The defence is that the defendant did not know that his former marriage had not been properly dissolved.

3-3-303 Criminal Fraud
Same defence as above, that the defendant did not knowingly provide false information. In addition, there is a defence about the exact meaning of " government benefit" or "privileges". Does the ability to marry count? Would tax breaks accrue? Finally, isa Justice of the Peace a "Government offioial or employee" within the meaning of the act? All elements must be proven for the charge to be proven, and lack of any one means it must fail.

Testimony of the defendant's wife would be excludable in all but the charge of Bigamy, and without such evidence, the Criminal Impersonation charge could not be sustained.

The whole case becomes far more interesting if the state of Hampshire does not recognise transsexual transition.

Oh yes - IANAL. But as a matter of fact, I am a Rocket Scientist.

How'd I do, Teach?

Well Sam seeks out Joel Cairo from the firm of Gardenia and Cairo.

Paralegal Gutman suggests that the facts fit the statutes in the following ways:

3-3-101. Bigamy: Only if Spade knows or should have known that the divorce was not finalized.

3-3-303 Criminal Fraud: as in Bigamy Spade either knows or should have known that the divorce was not finalized and seeks benefit of marriage after lying to Justice of Peace about existence of first marriage.

3-3-325 Criminal Impersonation: Spade impersonates a single person and impersonates a person of the male sex. With regard to the single person, Spade must have known or should have known that the divorce was not finalized. With regard to impersonating a person of the male sex Spade must ask the court to rule on his maleness.

By the statute, however, the State must prove that Spade intended to injure or defraud another. Can the "another" be limited to O'Shaughnessy? If so, there is no intent as he disclosed his previous marriage and the fact that he was born not a man.

3-3-601 Statutory Rape: O'Shaughnessy is 18 and thus not under the age of 18. The statute does not apply.

27-505 Husband-wife privilege: If Spade is cleared of Bigamy charge the privilege applies if a valid marriage exists. However since the divorce from wife 1 was apparently not finalized the privilege would exist between Spade and wife 1.

The Husband-and-wife privilege for O'Shauggnessy would be invoked if after reconciliation and finalisation of the divorce, they got married. I made the unwarranted assumption that "reconciliation" in this case meant they got married (with no legal impediment). As a defence lawyer, I would advise them to do so immediately if they haven't already done so.

This is where it gets hazy for me. I may be reading something into the priviledge statute that's not there.

Can I commit an act which is illegal and witnessed solely by someone with whom I may marry but have not yet married, and subsequently marry that person with the aim of availing myself of spousal privelegde?

Well the 800 pound gorilla that I'm desperately trying to ignore is that unless Hamphire either recognizes Spade's sex as male or recognizes same sex marriage there is no marriage to anyone.

The defense for the bigamy charge is that no marriage existed.

If there is no marriage then there is no spousal privilege.

The defense for criminal impersonation would still be that there was no intent to injure or defraud - Spade was up front with his gender history.

The defense for statutory rape would be (depending on dates of birth) that the statute unconstitutionally treats same sex couples and different sex couple unequally.

The defense for criminal fraud has me stumped. Spade was slippery with the facts on his application for a marriage license.

I tried to Judo the argument by assuming that the sex of the defendant was not in question, and giving an overview of some of the issues.

Basically, there is not enough information given in the initial post to determine what sex the defendant is in the state of Hampshire.

That a Justice of the Peace married him would indicate that he probably has a male birth certificate, or equivalent documentation adequate to prove his identity as a man. But as mentioned in the Sandy Gast case in Kansas, and In Re Marriage of Simons in Illinois, and In re Marriage of Nash in Ohio, not only do some states not recognise Birth Certificates from other states as proof of sex, they don't always recognise their own.
From the Nask case:

In her dissenting opinion, Christley wrote, “A person reading the above examples of legislation and judicial decision making would be appalled at the generalizations and outright ignorance used by courts and legislatures to justify obviously unconstitutional laws.”

A fair summation.
The Citizens for Community Values in Cincinatti have an interesting view:

Langdon said he and his clients are willing to accept same-sex marriages involving transgender people marrying someone who was born the opposite sex, not the sex they assume, as the trade for stopping transsexuals from marrying based on their modified sex.

In such an arrangement, Smith is married to attorney Randi Barnabee, a woman born male.

“Sex for the purposes of marriage should be based on birth sex, not modified sex,” said Langdon. “I’m troubled by the idea of transsexuals. We need to be bound by the principle that sex is determined by the creator at birth.”

Anyway, it's clear that if the defendant has a male BC, then following Gast, they could not be proven to have acted fraudulently, even if the court decides that the defendant is female.

Just to make things interesting.... there are even more complex situations, like my own.

My UK Birth Certificate says "boy". I can't get it changed because my exact Intersex condition is idiopathic, and only some Intersex conditions, not others, allow change of BC. But as I'm Intersexed, I can't go through the normal transsexual stream either, Intersexed people are excluded from that.

Medically and biologically, I'm female, so my UK passport says "F". As do my Australian immigration records (the cardinal document determining my sex in Australia) and my Australian passport.

I do not qualify as having had sex reassignment surgery though, as I was diagnosed as female (well, more female than male) due to the natural changes before treatment.

Should I emigrate to the USA, it would be fascinating to find out what legal sex I am from a Federal viewpoint, let alone the various states and counties.

I'll jump in. This looks like fun.

Bigamy

The statute says: "knowing he has a husband or wife." Spade told O'Shaughnessy before they married about how he had already been divorced. He put himself at risk of being rejected by a known "diva" by mentioning his gender history, so there's no reason to believe that he was attempting to deceive her by saying he was divorced.

I'd also hunt down those improperly filed papers and find the mistake made to prove his intent to divorce beforehand and see how minute his mistake was, to show that a reasonable person would have believed to have been divorced after filing the paperwork. Not the exact standard asked for in the statute (which only requires that Spade not know he was still married), but if this trial goes to jury it couldn't hurt to show how minute the error was or what response he got from his previously-filed paperwork.

Fraud

I'm guessing the "fraud" here is that Spade said he was male when the state doesn't accept that. Then again, the statute requires for him to lie "knowing the same to be false." If he was previously married to another woman (Ms. Archer), then he had every reason to believe that he was legally male.

If anything, the old French argument should apply, "If what I did was really illegal, then you should have arrested me the first time I did it." Just kidding, but if the state accepted Spade's first marriage to a woman, not only when he went through it but also accepted it as legit to prosecute him for bigamy (oh, wait, these charges contradict themselves), then the state can't turn around now and say that Spade isn't really male and can't marry a woman.

Impersonation

I'm guessing this stems from Spade "impersonating" a man to O'Shaughnessy to marry her.

Key phrase is: "with intent to injure or defraud another." There is no intent, or even possibility, that he was trying to injure her or defraud her. Consider:

1. She's the one with the violent and vengeful ex, which would put Spade at more risk (apparently Spade's vengeful ex only uses the legal system to exact her revenge)

2. Spade, w/ his $7B fortune and rare South American stamps, is most likely far wealthier than O'Shaughnessy. The money would flow in one direction here.

3. Spade told O'Shaughnessy he had a trans history. 'nuf said.

4. Spade searched for O'Shaughnessy and was distraught when he couldn't find her (police can testify to that as well since that's how they found him). It shows he cared about her and had no intent to injure her emotionally.

Statutory rape

Here's where things get complicated. Can they claim husband/wife privilege just on this charge and not the others, since bigamy is included in the others? If so, she doesn't testify and there's no proof that they actually had sex before she was 18. That "love affair" may have been tempered with an abstinence pledge (haha).

If not, and since we already have her testifying on several of the other charges, then we argue that they are w/i the 4-year exemption. Spade has already been recognized as male by the state when they said that his marriage to Archer was legitimate, but even if they say he's female, then we argue that Lawrence means that they can't use this "Romeo and Juliet" law just for straight couples.

I actually followed the Limon case pretty closely when I was in college for a few papers in my critical theory class, so, if I know the history correctly, the Iowa supreme court originally didn't want to challenge their Romeo and Juliet law. But the defense appealed to the Supreme Court, who refused to hear the case but pointed them to Lawrence. This got the Iowa court to turn their position on the basis of Lawrence.

So we argue it from there, and O'Shaughnessy can testify on everything.

Does that make sense to anyone besides me?