European human rights law and the legality of sex offence prosecutions based on deception as to gender history
Year: 2024
Type: article
Abstract: This paper considers the legality of the UK practice of prosecuting trans people for sexual offences on the basis of deception as to gender history, a practice unknown in other member states. It argues that such prosecutions may constitute an unjustified violation of Article 8 of the European Convention on Human Rights. Moreover, it argues that where criminal prosecution falls within the scope of Article 8 but is viewed as objectively justified under Article 8(2), it may constitute a violation of Article 14. The paper will proceed as follows. Part 2 will provide some background context regarding prosecution of trans people for deception as to gender history in the UK. Part 3 will set out the current law pertaining to sexual fraud in England and Wales. Part 4 will present two arguments as to why prosecutions based on current English law, or Crown Prosecution Service interpretations of it, may violate Article 8: (1) a right to respect for privacy is undermined by lack of legal certainty regarding the threshold of criminal liability; and (2) deception as to gender history ought not to be considered a material deception serving to vitiate consent as a matter of law. Part 5 will consider the issue of potential discrimination under Article 14.
Source: Legal Studies
DOI: 10.1017/lst.2024.17
Author: Alex Sharpe
Institution: University of Warwick
Language: English
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: hybrid
Estimated APC paid: $3,450
OpenAlex ID: W4401614721