No Consensus on Incest? Criminalisation and Compatibility with the European Convention on Human Rights

No Consensus on Incest? Criminalisation and Compatibility with the European Convention on Human Rights

This article explores the position of English and Welsh criminal law that criminalises incest in the context of European Convention on Human Rights (ECHR) norms. This article focuses on the criminalisation of consensual adult familial sexual activity in sections 64–65 of the Sexual Offences Act 2003 (UK). The legislation investigated here was produced after a long period of review and with the explicit aim of being ECHR compliant. The aim is not to pre-empt what the European Court of Human Rights might say in light of a challenge. Instead, the article seeks to understand the criminalisation of consensual adult familial sexual activity in light of European Convention on Human Rights norms. The analysis uses recent European Court cases as data, in order to understand the compatibility of the English and Welsh provisions with relevant jurisprudence before it is tempered by the political process and mediating concepts of the margin of appreciation and European consensus.

Sociology and Political Science, Law