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Elenie Poulos

Department of Modern History, Politics and International Relations, Macquarie University, Sydney, Australia

These days, the issue of religious freedom regularly makes media headlines in Australia but this wasn’t always the case. While there is evidence of continued religiously motivated abuse and vilification against Australia’s First Peoples and religious minorities including Muslims, Jews, and Sikhs, this is not the focus of public debate. The issue is, rather, the extent of the exemptions from anti-discrimination law granted to religious organisations – that is, against whom and in what circumstances are religious organisations allowed to discriminate based on religious belief?

The ‘problem’ of religious freedom first came to the attention of many Australians when conservative Christian lobbyists, politicians and religious leaders, responding to growing calls for marriage equality, began to cast it as a threat to religious freedom. However, its history stretches back to European invasion. Some limited protection was included in the Constitution in 1901, but because Australia lacks a national comprehensive human rights instrument, there is no general protection for freedom of religion or protection from religious discrimination.[i] Religious freedom is instead addressed through exemptions or exceptions in anti-discrimination law which allow for lawful discrimination by religious organisations in certain circumstances.[ii]

My doctoral research aims to examine the rise of the politics of religious freedom in Australia. One of the key flash points for debate has been marriage equality. To understand how politically sensitive the ‘problem’ of religious freedom has become, one need look no further than the name of the bill that finally granted marriage equality: the Marriage Amendment (Definition and Religious Freedoms) Bill 2017. Continue Reading »

Chloe chloekennedyKennedy

Edinburgh Law School

On December 14 2018, the decision of the Director of Public Prosecutions not to prosecute ex-DC Andrew Boyling for rape, indecent assault, procurement of sexual intercourse and misconduct in public office was upheld by the High Court in R (Monica) v DPP (henceforth Monica). The application for judicial review was brought by one of three women with whom Boyling, an undercover police officer, had a sexual relationship whilst posing as an environmental activist, named Jim Sutton. The case highlights significant issues relating to proper police conduct and the limits of state power but at its core is the question of when and why deception should undermine consent to sex. In this post, I put forward two arguments, both of which are based on my view that something important has been left out of previous attempts to answer this question. First, I argue that deceptions that are considered capable of undermining consent to sex can be understood as a form of ‘identity non- or misrecognition’ – a kind of failure on the part of the deceiver to respect the identity of the deceived. Second, I argue that conceiving of rape by deception in these terms provides a framework for thinking differently about where the boundaries of the criminal law ought to be drawn. Using Monica as a case study, my ultimate aim is therefore to suggest that identity nonrecognition could provide a foundation for this area of law going forward (as indeed it seems to have become in the recent past) but also to think critically about what this might mean in practice.

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Nikki Godden-Rasul

Newcastle University Law School

Last month, an apparently rare Scottish civil case in which ‘Ms M’ was awarded damages for rape after an unsuccessful criminal prosecution against Stephen Coxen made the news. The often negative and distressful experience of the criminal justice process for sexual violence survivors is well documented, even in cases where the victim-as-witness is treated fairly and with respect by criminal justice personnel, and the case proceeds as it should.

Ms M’s experience was, unfortunately, not this best case scenario. She said that the criminal justice system is a ‘disgrace’: ‘my case wasn’t investigated as well as it could have been’ and ‘how the Crown represented my case, I think the Crown failed in that’. Despite this, she was not ready to give up on using the law to hold Stephen Coxen to account. Although a jury in the criminal case returned a verdict of ‘not proven’, in the Court of Session, Sherriff R B Weir QC found that Coxen had penetrated Ms M’s vagina and mouth with his penis without her consent, and he had no reasonable belief in consent.

At the time of the sexual assaults Ms M was an undergraduate student who met Stephen Coxen when she was on a night out following a house warming party. Ms M was so intoxicated that she did not have the capacity to give meaningful consent. Sherriff Weir concluded that it ‘has been established on the balance of probabilities that the defender ignored what would have been obvious signs of the pursuer’s intoxication, took advantage of her in that state, and continued to do so even when she began to evince distress and attempted to resist him’. Ms M was granted £80,000, to be paid by Coxen (AR v Stephen Daniel Coxen [2018] SC EDIN 53). Ms M said she hopes that the civil case shines a light on the failures of the criminal justice system in rape and sexual assault cases, a point emphasised by the Scottish Women’s Rights Centre who represented her.

The cries from certain corners that a successful civil claim after an unsuccessful criminal prosecution for rape is ‘double jeopardy!’ and/or ‘a threat to justice!’ were predictably loud and predictably baseless. The Scottish Women’s Rights Centre with JustRight Scotland, Rape Crisis Scotland, and a number of solicitors in Scottish Legal News have responded to highlight the factual inaccuracies and gross misrepresentations. Continue Reading »

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Giuseppe Zago, Northumbria University

On 11 October 2018, the European Court of Human Rights issued a new judgment contributing to the recognition and protection of gender identity within the Council of Europe framework. In S.V. v. Italy, the Court followed up on the recent A.P., Garçon and Nicot v France decision to confirm that authorities’ refusal to authorise a transgender person with a female appearance to change her male forename in the midst of the transition process amounts to a violation of the right to respect for private life under Article 8 of the Convention.

The judgment confirms important principles concerning States’ obligations regarding gender identity, though it fails to address adequately the issue of the legal pathologisation of trans people. Continue Reading »

fullsizeoutput_639Professor Alex Sharpe, Keele University

This blog post was updated on 22 October 2018.

As we approach the deadline for submissions concerning reform of the Gender Recognition Act (GRA) 2004, debate over the likely effects of adopting a system of gender self-declaration has intensified. However, opposition to reform has come not only from the right-wing media, so-called gender ‘critical’ feminists and the Christian Right. It has also come from within the legal community.[1] In particular, barrister, Julian Norman, has made a series of arguments as to why a system of gender self-declaration will undermine cis women’s rights, and in particular, the right to exclude trans women from women-only spaces.[2]

Essentially, she makes two arguments: Continue Reading »

fullsizeoutput_639Professor Alex Sharpe, Keele University

This article considers the recent case of Karen White and offers a measured response, in place of the heated reactions, the case has so far generated in the media and elsewhere. The key facts about the case are that Karen White, a transgender woman, was placed in HMP New Hall, a female prison in West Yorkshire, while on remand for rape and despite a history of sexual offending, and that while on remand, she assaulted four female inmates. The case has been manna from heaven for the right wing media and those who, with no sense of irony, describe themselves as gender critical feminists, and who oppose trans rights. The Times’ Janice Turner is one journalist who is (rightly) angry about the case, which she likens to ‘locking a fox in a henhouse.’[1]

 

She calls for prison policy change so as to preclude “male-born (sic) criminal(s) who [have] committed a violent or sexual crime against women” from being allocated to the female estate. While some readers may sympathise with this suggestion, we need to recognise what it and Turner’s fox metaphor masks. First, let us begin with some statistics. Turner refers to a ‘BBC reality check’ that found that there are currently 125 trans prisoners in English and Welsh prisons, 60 of whom have sex offence convictions (48%) (while she does not say so explicitly, these figures appear to be 2017 figures provided by the Ministry of Justice after the anti-trans group, Fair Play for Women, put in an FOI request).[2] Before proceeding further, let us consider this 48% figure. While it suggests nearly half of all trans prisoners are sex offenders, it is actually very misleading. This is because the statistic: (i) only counts trans prisoners who have informed prison officers of their trans status, (ii) does not count trans prisoners with a GRC, and (iii) does not take account of trans prisoners on shorter sentences, because they were not included in the survey. Accordingly, the actual percentage of trans prisoners who are sex offenders is likely to be considerable lower than 48%. This is perhaps especially so given exclusion of prisoners on shorter sentences, as they are, by definition, less likely to be sex offenders. Continue Reading »

KyleKyle L Murray

Teaching Fellow in Public Law and Human Rights, Durham Law School.

Comments welcome via Twitter: @KyleLMurray92 or email: k.l.murray@durham.ac.uk

The recent Women & Equalities Committee report on paternity leave, while making welcome proposals, is revealing of a fundamental problem with the way we frame issues of gender (in)equality negatively affecting men. In this post, Kyle talks about the importance of framing the dealing with men’s issues not just as parasitic upon women’s rights, but as valuable pursuits in themselves.  

“We should take measures to break the glass ceiling and improve the representation of women in top positions in the workplace – this would relieve the considerable pressures on men, who we know suffer breakdowns and depression from their workload, with sometimes disastrous consequences”.

If this headline sounds as though it misses the point and belittles the harms done to women from the inequality it seeks to challenge, it is because it does. If it sounds as though it risks leaving the attitudes leading to these inequalities unchallenged – and therefore recommends strategies likely to be of limited effectiveness – again, it is argued, that is because it does. If readers are viewing it with a sense of disbelief, it is because it is fictitious. But its problematic framing of the issue of gender inequality is, I argue, not too far from what we have recently seen in discussions surrounding paternity leave and the difficulties faced by fathers. The recently-released Women & Equalities Committee (WEC) report – ‘Fathers in the Workplace’  (20 March 2018) – and its presentation in the media, is a prime example; framing issues of gender inequality and challenges facing men primarily within the paradigm of advancing women’s equality and rights.

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