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Archive for the ‘Sexuality and law’ Category

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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Professor Alex Sharpe, Keele University10689909_1016854768344392_8793741729286128967_n

Today, at Manchester Crown Court, Gayle Newland was, after a second trial, convicted of three counts of the sexual offence of assault by penetration,[1] on the basis of ‘gender identity fraud.’[2] After serving eleven months of an eight year sentence, the Court of Appeal set aside her original conviction in 2015[3] because they found it to be ‘unsafe’ due to the summing up of trial judge, Roger Dutton.[4] In my view, prosecutions of this kind should not be commenced. My reasons for taking this stance include, but are not exhausted by, opposition to criminal law overreach (criminalisation of non-coercive, desire-led intimacy constitutes a step too far), and concern over legal inconsistency (contrast prosecution of gender non-conforming people for sexual fraud with the fact that deceptions, for example, as to wealth, social status, drug use, criminal convictions, religious belief and/or ethnic status produce no legal consequences), and discrimination (‘gender history’ is not only singled out for special legal attention, but it is the gender histories of LGBTQ kids, rather than people at large (for we all have gender histories), that appears to exhaust state interest in historical facts about gender). (more…)

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Kate Gleeson

Dr. Kate Gleeson, Macquarie University, NSW, Australia

The Australian Royal Commission into Institutional Responses to Child Sexual Abuse is in its closing stages, preparing its final report due at the end of this year. The Royal Commission was established in 2013 in response to allegations of cover-ups of child sexual abuse in religious and secular institutions.

The Commissioners have since embarked on an extensive project of truth recovery and restorative justice, investigating the organisational practices of institutions ranging from dance schools, swim schools and yoga ashrams, to schools, Churches and orphanages of different denominations, although most allegations concern the Catholic Church.

Throughout the past four years the Royal Commission has held public hearings into more than 40 investigatory case studies, and conducted over 6700 private hearings for survivors to tell their stories unchallenged. Another 2000 private sessions are scheduled before the end of the year. Information gathered in hearings is believed to have led to at least 120 prosecutions of historical child sex offences across the country. (more…)

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IB imageSnapshots of law, gender and sexuality news from the past couple of weeks.

The LGBTQ+ Community and “Gay Conversion Therapy”

William Lee, University of Manchester

Malta made history on the 7th December 2016 when the Maltese Parliament unanimously approved the Affirmation of Sexual Orientation, Gender Identity, and Gender Expression Bill. Among other things, the Bill criminalises “gay conversion therapy”, giving legal recognition that for the position that “no sexual orientation, gender identity or gender expression constitutes a disorder, disease or shortcoming of any sort”. This thereby relieves the LGBTQ+ community of potentially being subjugated to any “deceptive and harmful” act designed to change their sexual behaviour or gender identity.

The new Act in effect positions Malta as the first European country to ban “gay conversion therapy”.

The Business Insider states that Malta has been at the forefront of progressive social reforms in Europe since the Labour government was elected in 2013. For that, Malta quite comfortably deserves its ranking of being the best European country for LGBTQ+ rights as deemed by the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA- Europe).

In light of such radical progress in Malta, this post will look briefly at the origins of “gay conversion therapy”. It will also briefly outline the United Kingdom (UK) and American’s current stance in regard to this practice. (more…)

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10689909_1016854768344392_8793741729286128967_nAlex Sharpe is Professor of Law at Keele University.

Over the last couple of years, I have written a series of articles addressing the issue of so-called ‘gender fraud,’ and opposing criminal prosecution on this basis. As recently as December of last year, I sought to take this prosecutorial practice to task in the context of the conviction of trans man, Kyran Lee, and before that Gayle Newland, whose eight year sentence shocked the nation.

I concluded the Kyran Lee piece with an ethical call, a plea for cisgender people to protest more vociferously regarding state intrusion into the lives of trans and gender queer people on the basis of a deception claim. I entertained the hope that the next witch hunt waiting to happen might be averted. Sadly, that hope has proved forlorn. Instead, it would seem that we are, much like Bill Murray, caught in a perpetual Groundhog Day – a cis and heteronormative ground zero. (more…)

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10689909_1016854768344392_8793741729286128967_n

Alex Sharpe is a professor at Keele University School of Law. She has been involved in transgender law reform and activism for over twenty years, and has written extensively on the criminalisation of so-called ‘gender fraud’ under the Sexual Offences Act. Alex has recently been interviewed by CBC Radio Canada on the Gayle Newland case, together with Professor Madden Demsey. Her interview can be found here.

On 15th September, Gayle Newland was convicted of three counts of sexual assault under the Sexual Offences Act 2003. She is currently awaiting sentence, though a custodial term has been indicated. The case is the latest in a series of so-called, and so far successful, ‘gender fraud’ based prosecutions that have come before English (R v Barker [2012] (unrep); R v McNally [2013] EWCA Crim 1051) and Scottish (R v Wilson [2013] (unrep)) courts. Barker and McNally received significant custodial sentences[1] and all convicted defendants have been placed on the Sexual Offenders Register for life.

Most of the media and legal coverage of the Newland case, like the cases of Barker, McNally and Wilson before it, has tended, unproblematically, to reproduce a fraud narrative, rather than challenge the ideological underpinnings of a worldview that makes fraud such an easy conclusion for courts and juries to draw. Of course, prosecution for ‘gender fraud’ is deeply troubling for other reasons. In the first place, prosecutions can be viewed as a significant example of criminal law overreach. That is, and irrespective of where we determine consent to end or deception to begin, the use of the criminal law to regulate deceptive, as opposed to coercive, sexual relations, can be viewed as an overly draconian and counter-productive measure. (more…)

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Kate FitzGibbonKate Fitz-Gibbon

In October 2010 the British government abolished the controversial partial defence of provocation and simultaneously introduced a new partial defence of loss of control. Provocation had long caused controversy in the English courts because of its perceived inability to accommodate the experiences of women who killed a long-term abusive male partner while all too readily accommodating the unmeritorious contexts within which jealous and controlling men killed female partners who were leaving them or had allegedly committed infidelity.

The new partial defence of loss of control was introduced as part of the Coroners and Justice Act 2009 and retains many of the features of the former provocation defence, including the requirement for there to have been a loss of control. However, notably in an attempt to distance the English law of homicide from the injustices associated with provocation, the new loss of control defence includes a provision to exclude the defence from reducing murder to manslaughter in cases where a person’s loss of control resulted from a situation of sexual infidelity. At the time of implementation, the Ministry of Justice commented that:

‘The Government does not accept that sexual infidelity should ever provide the basis for a partial defence to murder’.

The new partial defence has now been in operation in England and Wales for nearly four years, begging the question: to what extent has the new offence allowed the English law of homicide to distance itself from the problems previously associated with the heavily discredited provocation defence?

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