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

Kathy Marks on a legal hotchpotch

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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.

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