This article examines the European Court of Human Rights' violent advocacy jurisprudence. It observes that, since the decision in Leroy v France was delivered in October 2008, there has emerged some confusion concerning what the applicable test is in cases where it is alleged that a Member State's proscription of such speech amounts to a breach of Article 10 of the European Convention on Human Rights. In particular, there has been growing support in the Strasbourg case law for tests that are similar to the US Supreme Court's ‘clear and present danger’ standard. The argument presented here is that the European Court should adopt a test under which there is but one enquiry: ‘did the impugned speech create a real risk of violence?’ However, in answering that question, the Court, in every such case, should consider five further matters: ‘did the speech create an imminent risk of harm?’; ‘did the applicant intend to cause violence or foresee the possibility that his/her speech would cause violence?’; ‘did he/she occupy a position of influence in society?’; ‘was the advocacy disseminated widely?’; and (where applicable) ‘did the speech occur close to the ‘centre of violence’?’ If faithfully applied, this test would achieve a proper balance between, on one hand, protecting the community from violence, and, on the other, preventing states from placing unnecessary restrictions on those who impart and receive information relevant to political and other decision-making. That is, it would ensure that the Court upholds only those restrictions on violent advocacy that fulfil a ‘pressing social need’.
In this article, we consider the reforms to non-consensual sexual offences that the Law Reform Commission of Hong Kong (‘LRCHK’) has recently advocated in its Final Report about the law relating to sexual offending in that jurisdiction. We argue that a comparison between the LRCHK's proposals and those supported in recent years by Law Reform Commissions in other jurisdictions – most particularly, in New South Wales (‘NSW’) and Queensland – reveals the LRCHK's recommendations generally to be sensible, balanced and progressive. The LRCHK's approach to the question of what it is to consent, and to the issue of how a person withdraws consent, is preferable to that supported by the NSW Law Reform Commission (‘NSWLRC’). Further, it seems right to have supported an objective culpability requirement for the non-consensual offences with which it was concerned. And while there are difficulties concerning certain of the LRCHK's proposals – especially, perhaps, those pertaining to fraudulently procured sexual activity – the NSWLRC's and the Queensland Law Reform Commission's respective approaches to the last mentioned topic also seem imperfect.
scite is a Brooklyn-based organization that helps researchers better discover and understand research articles through Smart Citations–citations that display the context of the citation and describe whether the article provides supporting or contrasting evidence. scite is used by students and researchers from around the world and is funded in part by the National Science Foundation and the National Institute on Drug Abuse of the National Institutes of Health.