Consenting adults will be allowed to have sex at home with the curtains open but will face jail sentences of up to six months for making love in the back garden, the Government said yesterday.
In what ministers describe as the biggest change to the sex laws for 50 years, the Home Office's Sex Offences Bill proposes scrapping discriminatory legislation on homosexuality and aims to increase the proportion of rape cases that lead to conviction.
But the planned changes in the law on sex in public places could cause confusion, civil rights groups said yesterday.
In explanatory notes published with the Bill, the Home Office said an offence would be committed if a sex act took place in a private place and "where activity in that place can be seen in a public place''. The notes said: "An example would be a private garden which can be seen from the street."
The Bill said a distinction was drawn if sex took place inside a "dwelling".
It said: "Where A has sex in his bedroom, leaving his curtains open so he knows there is a risk he will be seen from the house opposite, he does not commit an offence.''
The Bill appears to allow gay men to engage in "cottaging'' – having sex in public lavatories – provided it is done with discretion and out of sight.
It allows for sex in such public places unless "someone will see any part of him or of another participant''.
The Home Office minister Hilary Benn, who outlined the Bill yesterday, said: "If the cubicle door is open then clearly an offence is committed. If it's closed it is different.''
The most important change in the Bill is probably the re-definition of the law on consent in rape cases, an effort to improve the rape conviction rate of seven in every 100 cases.
Mr Benn said that in future juries should presume that consent has not been granted if sex takes place in five given sets of circumstances, including where there has been violence or abduction or if the complainant was asleep or unconscious at the time.
The Bill also attempts to counteract the effects of the Morgan judgment, which allowed rape defendants to claim they "honestly believed'' a complainant had given consent even if no reasonable person would have agreed. Juries should expect men to have taken "reasonable'' steps to ensure that a partner consented to sex, Mr Benn said.
He said: "We are emphatically not saying that you need a piece of paper and a pen but it is saying that if you are going to have sex with someone you need to be confident that they are consenting.''
The Bill proposes a new sentence of up to five years for paedophiles who attempt to "groom'' children for sex on the internet. It also introduces an assumption that children under the age of 13 can in no circumstances be said to have consented to sex.