Gays, lesbians, straights - it's time to treat us all the same

Kathy Marks on a legal hotchpotch

Share
Related Topics
The European Court was quite explicit in its ruling yesterday on a lesbian railway clerk who wants a concessionary travel pass for her girlfriend. European law does not protect homosexuals from discrimination at work, it said, and it is up to legislators in member states to keep pace with changing sexual mores.

Gay men and women had pinned their hopes on victory for Lisa Grant, which would have given them equal rights to pensions and other employment-related benefits. Now they must look to Westminster to reform the domestic statutes that treat them as second-class citizens in the workplace.

But it is not only civil law that fails to reflect the extent to which social attitudes towards homosexuality have evolved over the past three decades. The criminal law is also behind the times. This coming Friday, seven men could be sent to prison for up to five years by a judge in Bolton, Greater Manchester, for participating in group sex in a private home.

The case, which was prosecuted with a righteous zeal reminiscent of the 1950s, is a stark reminder of the existence of criminal legislation that singles gay men out for punitive treatment. All the Bolton defendants were over the age of consent, except one who was six months short of 18, and all were fully consenting. The statute that they fell foul of was the 1967 Sexual Offences Act, which decriminalised homosexual acts in private but restricted privacy to circumstances in which only two people are present. They were convicted on the basis of home videos seized by police.

It must have come as a cruel irony to these men to learn about a sado- masochistic sex party raided by police in a club in Bolton a week after their trial. Officers only stayed long enough to ascertain that it was a private function, for straight guests only.

Thus events within in a short period in a small northern town have neatly encapsulated one of the glaring absurdities of the penal code, which gives its blessing to orgies involving people of the opposite sex - and, incidentally, lesbians - but brings the full force of the law down on like-minded gay men.

But it is not only the curious definition of privacy which would have to be abolished for homosexuals to be treated as equals before the criminal law. Hundreds of gay men are still prosecuted every year for archaic offences for which there is no heterosexual equivalent.

Several of the Bolton men, for instance, were convicted of gross indecency, the crime that landed Oscar Wilde in Reading Gaol. Gross indecency, first outlawed in 1885, became the classic offence used to charge men who engage in "cottaging". The Mayor of Burnley was among those charged with gross indecency last year after police lay in wait for him in a public toilet. Then there is the quaintly-phrased crime of "soliciting for an immoral purpose", which dates back to the Vagrancy Act of 1898 and remains on the statute books although the "immoral purpose" - sex between men - has long been legal. It does not relate to prostitution, but to men who "cruise" for partners in public places.

If these two offences, both of which criminalise consenting sex between adults, were scrapped, the precarious legal position of gay men would be transformed. (The 1533 buggery law could be repealed, too, since anal intercourse is now legal for everyone and rape legislation has been extended to cover assaults on men.)

These reforms would not give men a licence to engage in flagrant displays of sexual behaviour in public. As pointed out by Martin Bowley QC, chairman of a working party that has produced a consultation paper on changes to this area of law, offensive conduct could be adequately dealt with under an amended Public Order Act. Under the new Act, such behaviour would be treated as a public nuisance rather than a sexual crime, and a member of the public would have to see and be offended by it for a prosecution to be brought. Currently, only a police officer needs to witness it.

The problem of tinkering with existing legislation, though, is that it would prolong the piecemeal approach of the past 100 years which has resulted in a legal hotchpotch of anomalies and contradictions. It would be far better to introduce a new sexual offences law that, instead of distilling the values of the Victorian Age and 1950s Middle England, mirrors the attitudes of a modern society. This new law should be based on the principle of equality of sexuality which (given that the age of consent is almost certain to be equalised at 16 later this year) is hardly a controversial approach.

But for this to happen, there would need to be a comprehensive review of the legislation, a task that has not been undertaken since 1957, when the Wolfenden committee published the report that led to the 1967 Act. When wise men and women finally do put their heads together, they should consider not just inequities in the law, but discriminatory enforcement and sentencing. When a couple had sex in broad daylight on the bonnet of a car at Heathrow Airport last year, for instance, it was regarded as rather amusing and they received a conditional discharge. Contrast that with the substantial fines that are regularly meted out to men arrested in the middle of the night.

Sexual law reform is never high on the political agenda, but it would be an honourable government that resolved to tackle it. And during the last age of consent debate in 1994, Tony Blair spoke passionately in favour of equality of sexuality.

A new statute should have three aims: to protect minors, to uphold public decency and to provide sanctions for rape and sexual assault. Our legislators should be quite clear in their minds that the law's proper function in this area is not to enforce a pattern of morality, but to protect vulnerable members of society.

The philosophy that the law has no place in the bedrooms of consenting adults was, in fact, accepted by the Wolfenden committee - wrecking amendments to the 1967 bill created the restrictive privacy clause. Had the report been properly implemented, the Bolton case could never have been brought.

The Crown Prosecution Service, in a letter justifying the decision to press charges against the seven men, pointed out that Parliament "still draws a distinction between heterosexual and homosexual acts". This distinction has never been appropriate or just; but in 1998, it is indefensible.

React Now

Latest stories from i100
Have you tried new the Independent Digital Edition apps?
iJobs Job Widget
iJobs General

Senior Java Developer - API's / Webservices - XML, XSLT

£400 - £450 Per Day: Clearwater People Solutions Ltd: Our client is currently ...

Chemistry Teacher

£85 - £125 per day: Randstad Education Chester: Job Opportunity for Secondary ...

English Teacher

£85 - £125 per day: Randstad Education Chester: Job Opportunity for Secondary ...

English Teacher

£100 - £110 per day: Randstad Education Group: [ Megan Smith 22/09/2014 17:00:...

Day In a Page

Read Next
 

The racist abuse of Mario Balotelli on Twitter is disgusting, but it can be stopped

Anna Jonsson
A survey by Which? found that some of the UK’s biggest airports, including Heathrow, left travellers the most agitated  

Third-runway momentum is gathering. We need to stop it in its tracks

Mary Dejevsky
A roller-coaster tale from the 'voice of a generation'

Not That Kind of Girl:

A roller-coaster tale from 'voice of a generation' Lena Dunham
London is not bedlam or a cradle of vice. In fact it, as much as anywhere, deserves independence

London is not bedlam or a cradle of vice

In fact it, as much as anywhere, deserves independence
Vivienne Westwood 'didn’t want' relationship with Malcolm McLaren

Vivienne Westwood 'didn’t want' relationship with McLaren

Designer 'felt pressured' into going out with Sex Pistols manager
Jourdan Dunn: Model mother

Model mother

Jordan Dunn became one of the best-paid models in the world
Apple still coolest brand – despite U2 PR disaster

Apple still the coolest brand

Despite PR disaster of free U2 album
Scottish referendum: The Yes vote was the love that dared speak its name, but it was not to be

Despite the result, this is the end of the status quo

Boyd Tonkin on the fall-out from the Scottish referendum
Manolo Blahnik: The high priest of heels talks flats, Englishness, and why he loves Mary Beard

Manolo Blahnik: Flats, Englishness, and Mary Beard

The shoe designer who has been dubbed 'the patron saint of the stiletto'
The Beatles biographer reveals exclusive original manuscripts of some of the best pop songs ever written

Scrambled eggs and LSD

Behind The Beatles' lyrics - thanks to Hunter Davis's original manuscript copies
'Normcore' fashion: Blending in is the new standing out in latest catwalk non-trend

'Normcore': Blending in is the new standing out

Just when fashion was in grave danger of running out of trends, it only went and invented the non-trend. Rebecca Gonsalves investigates
Dance’s new leading ladies fight back: How female vocalists are now writing their own hits

New leading ladies of dance fight back

How female vocalists are now writing their own hits
Mystery of the Ground Zero wedding photo

A shot in the dark

Mystery of the wedding photo from Ground Zero
His life, the universe and everything

His life, the universe and everything

New biography sheds light on comic genius of Douglas Adams
Save us from small screen superheroes

Save us from small screen superheroes

Shows like Agents of S.H.I.E.L.D are little more than marketing tools
Reach for the skies

Reach for the skies

From pools to football pitches, rooftop living is looking up
These are the 12 best hotel spas in the UK

12 best hotel spas in the UK

Some hotels go all out on facilities; others stand out for the sheer quality of treatments