In responding to the request for written comments on the review of sex offences in the common and statute law in England and Wales, the Gay and Lesbian Humanist Association (GALHA) wishes first to welcome the intention to “make recommendations that will provide coherent and clear sex offences which will protect individuals, especially children and the more vulnerable, from abuse and exploitation”. In our view such protection is all with which the law should concern itself in this field. A pluralistic, democratic society should not attempt to impose any particular religious or other moral code on its citizens as a whole: all acts which are legal should also be lawful, and the common law offences of conspiracy to corrupt public morals and to outrage public decency should be abolished. Terms such as ‘immoral’, ‘unnatural’, or ‘indecent’ have no place in the legal codes of a modern society and should be deleted from both statute and common law.
GALHA is a UK-based organization, and trusts that similar reviews will be instituted in respect of the laws in Scotland and in Northern Ireland. We hope in particular that the new Scottish Executive will institute a similar review after it assumes its devolved powers on 1 July. The principles underlying this submission should be applied throughout the United Kingdom and to the Channel Isles and Isle of Man.
Given the need to “be fair and non-discriminatory in accordance with the ECHR and Human Rights Act”, we assume that the review will scrutinize all the areas where gay men and lesbians are not now treated equally. These include the limited definition of privacy which survives from section 1(2) of the Sexual Offences Act 1967 and applies to male, but not female, homosexual activities. Those restrictions should be abolished. Similarly, it is unjust that a man who introduces two homosexual men may be at risk of ‘procuring’, when a woman doing so would not be.
We also draw attention to the fact that, though the offence for a man persistently to solicit or importune in a public place for immoral purposes was originally introduced in the Vagrancy Act 1898 to control men touting for female prostitutes, it is now used almost exclusively against homosexual men. Another blatant example of unequal treatment of homosexual and heterosexual activities is provided by the contrast between the House of Lords’s 1993 decision in R. v. Brown and the Appeal Court’s decision in R. v. Wilson three years later.
Such examples make it important that, when framing their recommendations, the review team should recognize the danger that laws ostensibly treating homosexual and heterosexual activities equally will be applied unequally. The team should consider how to minimize the scope for that. These examples also reinforce the need for an explicit statutory statement that homosexual behaviour as such is no longer to be deemed immoral, illegal, or unlawful. There should no longer be any legal presumption that it – or, for that matter, consenting heterosexual activity outside marriage – is contrary to public policy.
More generally, all victimless offences should be abolished. The law should defend people from unwanted sexual exploitation by others, but not attempt to protect people from themselves. In particular, the crime of ‘gross indecency’ should be abolished: anything deserving legal prohibition is covered under other provisions.
We do not regard any of the consenting participants in sado-masochistic sex as victims. One of our members sent a submission on this to the Law Commission in response to their Consultation Paper 139 on Consent in the Criminal Law. A copy is enclosed herewith to avoid the need to go over the same ground again; but it is perhaps worth repeating the quotation from Lord Jenkins of Hillhead, the former Home Secretary, as it is of particular relevance. He said: “If you want to stop people doing something which they enjoy doing, which they believe is within their liberty of action, then you’ve got to have an overwhelming social case ... [I]f you’re going to stop them, you shouldn’t do it out of prejudice or out of habit, but only because you can show that a definite social evil results.” We also commend Appendix C to Consultation Paper 139 as background reading for your review team. As will be appreciated, GALHA supports the approach described as ‘Liberalism’ in that Appendix. Sado-masochistic sex is sex, not violence, and it should therefore be considered as part of your review.
Sexual activities have two distinct roles: for reproduction and for recreation. Many of the defects in our laws arise from treating the first of these as ‘good’ and the second as ‘bad’, whereas they both have positive value in appropriate contexts. There is no “overwhelming social case” to exercise different controls over sex games than over swimming or mountaineering. A group of men should have the same right to have sex together as to swim together or to go mountaineering as a group.
As recreational sex is a good thing, which people should be encouraged to enjoy, facilitating its commission should never be penalized – be it by aiding, abetting, counselling, procuring, or whatever terms the law may use. The right approach for the team should be to propose the abolition of all sex-related offences unless they have been clearly and unequivocally demonstrated to result in definite social evils or in harm inflicted on unwilling individuals.
Abuse of trust or of a position of power is, of course, a different thing; but it is something which we would not regard as specifically related to sex. Where it does occur, it is the abuse of trust itself which should be punished – not the sexual activities through which it is manifest.
Considering the greater risks inherent in heterosexual activities, when the female partner can become pregnant and there is the risk to an unborn non-participant, we can envisage no circumstances which would justify restrictions on homosexual activities which do not apply to heterosexual ones. The risk of pregnancy might even be held to justify a higher age of consent for heterosexual people! The age of consent is, however, a ham-fisted way of protecting children who are at risk from abuse and exploitation. The review team should be considering how it can best devise and recommend the substitution of more direct ways of providing such protection in all cases where there is no genuine consent. Where all the participants are able to consent and do so, there is no legitimate role for the criminal law. Any lack of consent should be a factual matter, and one which the prosecution should need to prove beyond all reasonable doubt.
This applies also to proof of offence to third parties. Many of our members are more offended by hearing out-of-tune buskers or by seeing public marches in support of racist policies than by a public display of sexual affection, either heterosexual or homosexual – though we hasten to add that we do not think that our being offended would justify the denial of free speech even to racists or to religious sects who wish to deny us our civil rights. At its lowest, however, there can be no justification for different standards of permissible public behaviour for homosexual and heterosexual people.
Privacy, like consent, should be a matter of fact. There is no valid case for restrictions on consensual sex that is in private, and there should be a presumption that consent has been given. This applies no matter how many people are involved, and whether or not they have paid to participate or observe.
The current levels of penalties for sexual offences are unreasonably high. In most cases this should be solved by abolishing the offences.
Time limitations should be placed on prosecutions for all sexual offences. We are disturbed that people are currently being prosecuted, and sometimes imprisoned, for sexual offences committed many years previously. The period of twelve months imposed for some offences by section 7 of the Sexual Offences Act 1967 should be made general.
We see no reason for the retention of the offences of incest and bestiality; but, should they be retained, any prosecutions should both be time limited and require the assent of the DPP.
There remains one aspect of consent which troubles us, and on which we have been unable to come to a firm view. We place high importance on people giving meaningful consent before participating in sexual activities, yet we would not wish to deny adults who are mentally impaired the human right to enjoy sex. This is something to which we must ask the review team to give further consideration.
In conclusion, GALHA is surprised that the “review will not be looking at decriminalizing prostitution” as we had understood that prostitution as such is not now a criminal activity, although many related activities are. We hope that this area of the law will also be modernized in the near future.
Most of the following comments relate to the discussion of the legal treatment of sado-masochistic (s/m) sexual activities. Their approach was summed up in recent remarks by Lord (Roy) Jenkins of Hillhead, quoted by Andrew Marr in the Independent on 4 June 1996:
“If you want to stop people doing something which they enjoy doing, which they believe is within their liberty of action, then you’ve got to have an overwhelming social case ... [I]f you’re going to stop them, you shouldn’t do it out of prejudice or out of habit, but only because you can show that a definite social evil results.”
These comments thus support the approach described as ‘Liberalism’ in Appendix C. Any restriction on the liberty of the individual needs explicit and powerful justification: liberty, and respect for the preservation of individual autonomy, should always be the ‘default option’. Furthermore, if the state is to intervene through the law, there needs to be not only an overwhelming justification in principle but also the ability to enforce the restriction equitably in practice. No pressing social need has been demonstrated which needs to be addressed by the criminal law in respect of s/m sex. The invasion of personal privacy is quite disproportionate to the aims being pursued – and, indeed, it is far from clear what those aims are.
Sexual activity is an area where particular care needs taking about the discretion given to law enforcement agencies, given the strong feelings which such activities arouse in individual constables. (The effects of James Anderton – and of his departure – on ‘vice-related’ prosecutions in Greater Manchester provide quantifiable examples of this.) Furthermore, this is an area where the risk of corruption in law enforcement seems particularly strong: of itself an argument to minimize criminal sanctions here. And it is important that s/m activities should be treated legally as a form of sexual expression (or perhaps as a game or recreational activity – the use of the expression ‘toys’ to describe the equipment used is revealing) rather than as a form of assault or violence.
A fairly close analogy can be drawn between the stimulation gained from the activation of the masochist’s endorphin system as a result of the pain involved in s/m sex and that of the jogger’s or marathon runner’s when breaking through her or his pain barrier: ‘no pain, no gain’ is a significant expression there too. Avoiding pain is not necessarily a sensible overriding human priority.
Any criminalization of activities such as s/m will also have the undesirable side effect of making anyone inadvertently injured during them less likely to seek medical help. Proper peer education and supervision will also be obstructed, as will the practice of what are increasingly seen as ‘safer sex’ activities.
Looking at paragraph 2.18(2) on page 20 of the Report, while instinctively sympathizing with the idea that rules may be needed for the young and the disabled, I question the extent to which there should be specific rules for those groups, rather than a simple recognition that they are groups where the existence of genuine consent needs demonstrating with particular care. The disabled, for example, need to have the same rights to enjoy sexual activities as those of us who are not so afflicted. It is bad enough to have one’s mobility, say, restricted because one is disabled; to be denied sexual rights for that reason too would be wrong. In the case of the mentally impaired, the South Australian committee’s proposal described in paragraph 5.15 seems to strike the right balance.
As far as any age of consent for s/m activities is concerned, I support the view of the Criminal Bar Association that there is no need for a separate class of case relating to children, for the reason given at the end of paragraph 5.11. If there is to be an age limit, however, there seems no reason why it should be higher, for either sex, than the age at which a girl can consent to the far more serious act of unprotected heterosexual intercourse. The implications of a possible pregnancy are far graver, and of far more concern to the state, than the implications of sexual activities which do not carry that particular risk – a risk which affects not just the parties initially involved, but also their potential offspring. Thus I do not accept the argument for the age of 18 in paragraph 10.53, nor its inclusion in paragraph 10.55. Apart from the age, however, 10.55 seems the right conclusion from the facts presented in Part X.
Paragraph 2.18(4) is not a proper basis for legislation. The idea that the state should decide that a person who consents to a seriously disabling injury must thereby have made a mistake – because it must, by definition, be against his or her interests to have done so – is not convincing. Such a diminution of personal integrity and autonomy needs the clearest of justifications, and none is provided in the Paper. On the other hand, the arguments against the quantitative approach given in Appendix C are convincing.
As an example of the problems such a quantitative approach would present, it seems likely that, in some cases, the definition provisionally proposed in paragraph 4.51 (page 47) would include sexual intercourse resulting in a pregnancy which caused serious distress and severe and prolonged pain which could only be remediable by surgery. Serious injury is far more likely to result from crossing the road in heavy traffic, smoking cigarettes, or having unprotected sex with a person who has AIDS than from s/m play.
The inclusion of item (5) in paragraph 2.18 suggests that the Commission in fact recognize that their proposed approach is not universally valid and lacks an overarching principle of jurisprudence.
Having made that point, it is important to emphasize that, were the Commission to maintain its support for the proposed approach, then a statutory definition of a non-permissible injury would be essential in order to make the law as certain and clear as may be. If that in paragraph 4.51 is adopted, then it would be of the utmost importance that both elements (1) and (2) of the definition should be present before an injury could be counted as a ‘seriously disabling’ one. This is in part because of the (perhaps inevitable) element of subjectivity in each element. No justification is given for the last two lines of paragraph 4.51, which should therefore be deleted.
The issue of consent is, of course, central – as the classic phrase ‘safe, sane, and consensual’ in the definition of sado-masochistic sex recognizes. The discussion of consent in the paper seems to make inadequate allowance for the desire of some parties for elements of spontaneity and surprise in their games. In some cases this will mean that they want to exercise what might be described as ‘the right to play at coercion’. This is why the institution of safe words (or safe actions) has been developed, and their key importance as a demonstration of real consent needs greater recognition. They are, in effect, the equivalent of regulation in non-sexual sports. In this connection, it should be noted that decriminalizing s/m sexual activities would make it more easily possible for them to be organized – as is sometimes the case in the USA, when there are supervisors at hand to ensure safety at group activities. Making such activities illegal makes their proper supervision by experienced players more difficult.
Care is needed in deciding whether there has actually been deception. One key feature of some – perhaps much – s/m sex is giving up control: enjoying apprehension and welcoming uncertainty. This has relevance to the discussion of ‘deception’ and the communication of information in paragraphs 6.83 et seqq.
The implication of the reference at the end of paragraph 6.85 to a defendant being aware that “a mistake may have been made” is not clear. It is always possible that a mistake may have been made.
The discussion of fraudulent misrepresentation of the result of a test for HIV in paragraph 6.19 makes inadequate allowance for the fact that a negative result does not necessarily mean that a person is free from infection. Given the possibly substantial time gap between becoming infected and showing that in the test, a person saying correctly that they have obtained a negative result may in fact thereby be misleading a potential partner who thinks that the result implies that the speaker must still be free from AIDS. What is needed is education to teach people the desirability of working on the assumption that other people are HIV-positive. I would not support the proposal in 6.80(1), because it seems likely to reinforce misunderstanding about the implications of a negative test result.
The question of what sort of actions involve compulsion through threatening is difficult. The Commission will need to consider the implications of fact that a bottom may be compelled to consent to something which is not seriously disabling by a top’s threat to stop the infliction of desired pain which is seriously disabling. Conversely, a bottom might persuade a top to do something to him or her from which the top would not gain pleasure by the threat to inform their peer group of the latter’s inadequacy. The second case is not one of which the law should take cognizance. The former case is less self-evident; but, on balance, the law should again be excluded on the grounds given at the end of paragraph 85: that an offence defined in terms of threats must be construed as excluding all but the clearest cases.
Since the publication of the Paper, the appeal (mentioned at the end of note 35 to paragraph 9.12) in the case of Alan Wilson was heard in the Court of Appeal on 29 February. Lord Justice Russell is reported to have said that “sexual activity between husband and wife in the privacy of the home is not a matter for criminal investigation, let alone criminal prosecution”. The judges suggested that the prosecution “had served no useful purpose at considerable public expense” and that Wilson’s counsel should make an application for costs against the Crown. The reference to husband and wife in their home is puzzling, as branding one’s initials on another person’s buttocks with a hot knife blade at their request seems neither transient nor trifling; and it would presumably cause equal distress or serious or permanent disfigurement regardless of the location, marital status, sexual orientation, or number of the parties involved. However, the other remarks seem eminently sensible – and equally applicable to the case of Brown.
The newspaper reports of the Wilson case on 1 March reinforced doubts about the impartiality of judgements in this field when the treatment of a group of gay men is compared with that of a heterosexual couple. Similarly, the general legal approach seems to imply that some things are unlawful simply because participants gain sexual pleasure from them, and would be lawful in the absence of such sexual pleasure, regardless of their other effects. There is no justification for this.
This attitude may sometimes result from sheer ignorance on the part of judges and juries; which suggests that one useful measure, should s/m sex remain criminal as such, would be for the courts to call on experienced practitioners to give expert witness on issues such as the use of safe words or the probability of serious distress having been caused or unwanted deception having occurred.
One aspect of the law relating to consent is not adequately covered in the Paper: the extent to which proxy consent can be given by a person other than the one on whom pain or injury is inflicted. This would have merited a full discussion in a separate Part. It is particularly relevant where children are concerned, and I have much sympathy with the respondent quoted at the end of paragraph 11.4.
Despite the brief mention in paragraph 8.22, while accepting that their right to individual autonomy should allow a member of Jehovah’s Witnesses to refuse a blood transfusion for themselves, I would not accept their right to deny such medical treatment to their children, particularly in a life-threatening situation. This is to treat children as their parents’ property in an unacceptable way. Similar considerations apply to the circumcision of male children. Circumcision, like the other tribal customs mentioned in paragraph 9.14, is something to which adults should be able to give free and informed consent, but only on their own behalf. I therefore disagree with the provisional proposal in paragraph 9.27. This has relevance too to the discussion of involuntary participation in school games etc. in paragraph 12.60.
A person should be able to give consent to medical treatment, not only if it is for that person’s direct personal medical benefit, but also, on the one hand, if it is for the benefit of another person (e.g. to provide an organ transplant), or, on the other hand, if it is for sexual gratification. This last is as valid a reason as the vanity which justifies some of the cosmetic surgery included in paragraph 8.50(2)(c)(iv). The exclusion of sexual gratification quoted at the end of paragraph 9.7 and in the second sentence of paragraph 9.20 was absurd, as the information given in paragraphs 10.8 et seqq. demonstrates.
My own experience of both NHS and private medical treatment is that such information as has been given was both very limited and offered at such a late stage as to make refusing treatment impracticable, and I would have liked to have seen more emphasis on the need for informed consent in Part VIII.
It was surprising that Part XV did not lead to the clear recommendations which the remainder of the Report would seem to suggest. Retaining the existing law on disorderly houses and brothel keeping seems inconsistent with the acceptance of individual autonomy elsewhere, not least in the reference to “the infliction of personal harm” quoted at the end of paragraph 15.7. The conclusion of this Part seems to lack the final set of proposals for which its argument calls.
The implication of the above comments for the relevant provisional proposals in Part XVI may be summarized as follows.
2. Opposed.
3. (1) Opposed; but if (1) is proposed, then (2) should be included too.
5. Supported – subject to deleting “other than seriously disabling injury as defined in paragraph 7 below”.
6. As 5.
7. If adopted, delete last two lines.
8. Supported.
9. Support (1)
10. Supported.
11. Support option (2).
12. Not supported.
13. Supported, subject to age being 16 not 18.
14. As 13.
15. Support (1), and possibly (2); but not (3).
16. Prefer general rule.
19. Supported provided it refers to being “materially deceived”.
20. Not supported.
23. Not supported.
24. Circumstances should include medical treatment.
25. Supported if the last line reads “mistake has probably been made”.
33. Any age should be 16.
36. Opposed.
38. Not supported; but if proposed the relevant age should be 16 not 18.