The Heart of the Matter: Criminalising Fraudulent Consent to Sex

37 Pages Posted: 1 Aug 2019

See all articles by Sharon Cowan

Sharon Cowan

University of Edinburgh - School of Law

Date Written: July 31, 2019

Abstract

This article offers a feminist and queer critique of recent ‘fraudulent sexual consent’ cases, arguing that the application of criminal law here signals a failure to acknowledge the stigmatization and social exclusion of already structurally disadvantaged defendants. In particular, the article will examine cases involving those living with HIV who fail to disclose their HIV status, alongside those involving transgender (trans) men who do not reveal their gender attributed at birth. These cases are analysed against the backdrop of what we might call ‘everyday’ cases of deception that are not considered criminal in the UK, to illustrate how current criminalisation practices regarding fraudulent sexual consent threaten to condone and enable discrimination against HIV+ and trans people. The article argues that when making criminalisation decisions, we should apply a substantive equality lens and take account of the marginalization and stigmatization of already structurally disadvantaged individuals; and suggests that we need to focus on the purpose and impact of criminalisation, if we are to reach morally just outcomes in ‘fraudulent’ assault and sexual assault cases.

Keywords: sex, consent, fraud, HIV, trans, equality

Suggested Citation

Cowan, Sharon, The Heart of the Matter: Criminalising Fraudulent Consent to Sex (July 31, 2019). Edinburgh School of Law Research Paper No. 2019/26. Available at SSRN: https://ssrn.com/abstract=3429592 or http://dx.doi.org/10.2139/ssrn.3429592

Sharon Cowan (Contact Author)

University of Edinburgh - School of Law ( email )

Old College
South Bridge
Edinburgh, EH8 9YL
United Kingdom

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