European human rights law and the legality of sex offence prosecutions based on deception as to gender history

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.