No Consensus on Incest? Criminalisation and Compatibility with the European Convention on Human Rights James A. Roffee* Lecturer in Social Sciences, Monash University *Corresponding author. E mail: james.roffee@monash.edu ABSTRACT 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 sec- tions 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 criminal- isation 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 jur- isprudence before it is tempered by the political process and mediating concepts of the margin of appreciation and European consensus. KEYWORDS : Incest, criminalisation, European consensus, margin of appreciation, non-discrimination, Sexual Offences Act 2003 (UK), Article 8, Article 14, European Convention on Human Rights 1. INTRODUCTION European Convention on Human Rights 1 (ECHR) norms were integral to the dis- course supporting the modernisation and recommendation formation process by the British Labour Government in their changes to the laws on sexual offences. 1 Convention for the Protection of Human Rights and Fundamental Freedoms 1950, ETS 5; 213 UNTS 221. V C The Author [2014]. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com  541 Human Rights Law Review, 2014, 14, 541–572 doi: 10.1093/hrlr/ngu023 Advance Access Publication Date: 23 July 2014 Article at Monash University on September 13, 2014 http://hrlr.oxfordjournals.org/ Downloaded from