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Posts Tagged ‘court of appeal’

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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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10689909_1016854768344392_8793741729286128967_nProfessor Alex Sharpe, School of Law, Keele University

Until very recently, I used to think transgender people were an especially vulnerable group in our society. It certainly appeared so. Didn’t they experience far more violence, discrimination and general incivility than most of us? In fact, I’m sure I remember reading somewhere (somewhere credible in fact) that 42% of transgender people never come out at work for fear of losing their jobs. Well you can understand it really. Indeed, and sorry for being pedantic, but wasn’t it the case, despite an obvious clear and present danger, that law, and the criminal justice system more generally, failed miserably to protect transgender people’s bodily and sexual autonomy? In fact, I might be mistaken (though I think you’ll find I’m not), but wasn’t it the case that the very definition of rape excluded transgender women so that cisgender men could basically rape them with impunity (see, further, my article ‘The Failure to Degenderise the Law of Rape: The Criminal Justice and Public Order Act and the Transsexual Rape Victim’ (1995) The Criminal Lawyer, 7-8). Of course, some things have improved. But none of this really matters, because this version of recent history (while true) is no longer fashionable.

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Neil Cobb

The Court of Appeal, in a significant, controversial, but not unexpected judgment, has allowed an appeal against a murder conviction where the partial defence of loss of control was withdrawn by the trial judge after she disregarded evidence that the appellant was motivated by the victim’s sexual infidelity. Since October 2010 the loss of control defence has replaced the ancient common law defence of provocation. The structure of the new defence is based on the wide-ranging and lengthy review of the partial defences by the Law Commission, although as the Court notes the Commission’s proposals were altered substantially by the Labour government when it enacted the new partial defence in the Coroners and Justice Act 2009.

One of the key objectives of both the Commission and the government was to ensure that the defence was not misused in the context of domestic violence and, in particular, by violent men who claimed they lost control when they killed their female partners. To this end, among other measures, the new defence can only reduce murder to manslaughter where killings are based in anger if the loss of self-control was attributable to “things said or done (or both) which constituted circumstances of an extremely grave character and caused D to have a justifiable sense of being seriously wronged.” Moreover, in a provision added by the government, “the fact that a thing done or said constituted sexual infidelity is to be disregarded.”

The facts

In R v Clinton the appellant was the husband of the victim. The couple had lived together for 16 years and had children of school age. Two weeks before the victim was killed she had left the appellant. The appellant had a history of depression. According to the appellant’s testimony, on the night of the killing the victim had returned to the family home.

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