UK Sex Law Reform Published
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
Britains 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the offences of gross indecency and buggery should be repealed; those aspects of the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should be repealed.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recommend: section 32 of the Sexual Offences Act 1956 should be repealed.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
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 Governments 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 years 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.