Last edited: January 03, 2005

UK Sex Law Reform Published

PlanetOut, July 26, 2000
(with thanks to Alan Reekie, ILGA/Brussels)

SUMMARY: Even though the Government is one-down in the fight to repeal Section 28, the plan is to go forward with making same-gender sex equal under the law.

Britain’s Home Office on July 26 unveiled an official consultation paper recommending major reforms of the criminal codes relating to sex, most of which were established in 1885 and few of which have changed since. Contrary to some earlier rumors — and despite the heat the Labour Government has taken this week in failing to repeal the "no promo homo" Section 28 — the paper does recommend that laws specifically targeting gay men should be eliminated. The paper, called "Setting the Boundaries," was developed by an independent panel, and the Government intends to obtain extensive public input before proceeding further.

In his introduction, Home Secretary Jack Straw writes: We looked at the way the law treats gender issues and those of differing sexual orientation. We thought that the law should offer protection to men and women, boys and girls and recommend:

the criminal law should offer protection from all non-consensual sexual activity. It should not treat people differently on the basis of their sexual orientation. Consensual sexual activity between adults in private that causes no harm to themselves or others should not be criminal.

We therefore felt that the law did not need to make particular provision for any same-sex behaviour and recommend that:

the offences of gross indecency and buggery should be repealed; those aspects of the offences providing protection for children, vulnerable people and animals would be replaced by our other proposals. other specific offences such as section 16 of the Sexual Offences Act 1956 and s4 of the Sexual Offences Act 1967 will no longer be necessary and should be repealed.

On that same basis we thought that the law on soliciting should apply equally to men and women, and be similar to the way in which street prostitution is regulated and recommend: section 32 of the Sexual Offences Act 1956 should be repealed.

Repeal of the 1885 gross indecency statute (under which Oscar Wilde was imprisoned) has long been a top target for activists, and "Setting the Boundaries" recommends it along with all other criminal distinctions between heterosexual and same-gender acts. The gross indecency statute applies exclusively to sex between men, making it a criminal act if any third party is present, even by choice; often that third party has been the arresting officer. There were some 350 reports of violations in England and Wales last year.

Public gay sex acts have been prohibited since 1967. Even same-gender kissing in public is currently prohibited, but the report says that, "A man and a man — or a woman and a woman — kissing and holding hands in public should no more be criminalized than a man and a woman behaving the same way." The most comparable heterosexual statute, "outraging public decency," has a higher burden of proof: it must be shown that at least two people viewed the act and that those who performed it should have known they were apt to be seen. The report recommends a uniform standard for public sex acts that would also require proof that those performing them had reason to believe they would be seen by and cause distress to another. A law might also call for police to give a warning before taking further action.

The recommendations are intended in part to meet the standards of the European Convention on Human Rights, which will be incorporated into British law in October. By that measure not only should private non-commercial sex acts between consenting adults be decriminalized, but males and females must be treated equally. Currently indecent exposure applies solely to men, while penalties are different for men and women who engage in consensual acts with minors or in solicitation for prostitution. Equality should also mean stronger protections for males who are sexually assaulted.

There is no recommendation to decriminalize pornography or prostitution, although a change in the definition of prostitution is suggested.

There is no recommendation for lowering the heterosexual age of consent below its current 16 years. The age of consent for sex between men is currently 18, but a lawsuit in Europe has been put on hold based on the Government’s written promise to enact equalization, using the Parliament Act to override the House of Lords if necessary. The Lords have twice voted down the latest edition of the bill including equalization, the Sexual Offenses (Amendment) Bill, and the Parliament Act will be invoked if peers reject it a third time. However, when the bill comes up again after the summer recess, Conservative Baroness Janet Young will be stretching out the process with numerous amendments to further toughen the section providing for an "abuse of trust" offense, applying to adults in positions of authority who engage in consensual acts with 16- and 17-year-olds in their care.

Rather predictably a spokesperson for Young, fresh from her victory in derailing repeal of Section 28, said of "Setting the Boundaries" that, "We have had gay sex lessons proposed [her very debatable interpretation of Section 28 repeal] and now it is gay sex on the streets. The gay lobby is a very influential and professional organization and I am sure Lady Young will oppose this in the House of Lords."

Meanwhile, Prime Minister Tony Blair stood firm in his plan to repeal Section 28 though peppered by Conservative Parliamentary Leader William Hague during question time on July 25. A heckling Hague called on Blair to drop his repeal campaign, taunting him with the desertion of some of his own Labour Party-appointed Lords in the voting July 24. But Blair said, "I believe that Clause 28 is a piece of prejudice. I think it is right to remove it. I remain committed to removing it."

Blair said of Hague, "I think we know what [he] is doing. It is exactly the same thing he did over the asylum issue. It is pandering to prejudice and it is not a pretty sight." Blair continued, "The reason I believe it is the right to repeal this clause is that ... having taken account [with guidelines under the Learning and Skills Bill] of the one serious objection put forward by people, their worry about sex education in schools, [Section 28] is now a piece of prejudice, pure and simple."

But the unanswered question remains how and when. Previously two options had been raised, a free-standing repeal measure to be introduced in the fall session, or delaying the move to repeal until after next year’s elections. Now a third option is under discussion: making repeal part of a larger anti-discrimination bill that would include such provisions as establishing a human rights commission to replace three existing commissions devoted to gender, race and disability issues.

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