Leading Article: The red tape under the bed

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The Independent Online
THIS, WE ARE told, is to be the Parliament of deregulation - 'the biggest bonfire of controls that has taken place in this country', in the unoriginal phrase used by Michael Heseltine last week. Tory ministers should take their enthusiasm a step further. They should vote to deregulate the nation's bedrooms.

Laws on sexual activity are in as much of a muddle as were laws on Sunday shopping. Most people understand that, since 1967, homosexual acts between consenting adults aged 21 or over have been lawful, provided they take place in private. But what exactly counts as private? Not a hotel bedroom, even if you lock the door. Not a private house, if other people are sleeping in it. Provided these restrictions are observed, homosexual buggery is allowed. But not, in any circumstances, heterosexual buggery. Except in Scotland.

These examples demonstrate that the law becomes even more of a donkey than usual when it enters private lives. But the biggest anomaly - and the one that is likely to see Britain hauled before the international courts - concerns the age of consent, which is 21 for male homosexual acts, 16 for heterosexual acts. The arguments for lowering the former to 18 or 16, which will be discussed by Parliament shortly, do not depend on numbers. The Wellcome Trust survey of British sexual behaviour, from which we publish a second extract this week, estimates the proportion of men who are homosexual to be considerably lower than the one in ten that is widely quoted. Last week, the Daily Mail called this a 'bitter blow' to gay rights campaigners, thus providing an excellent example of why minorities are apt to develop paranoia. Jews/

blacks/homosexuals/communists may be exposed as more numerous than we thought, so threatening a 'takeover' and the end of our 'way of life'. Equally, they may be exposed as less numerous than we thought, so wielding disproportionate power and influence. Either way, they lose. But the important point is that homosexuals are not asking for special privileges; they want the law to treat them in the same way as other people. Whether their numbers are 5,000 or 5 million is irrelevant.

The present law is ineffective, and held in some contempt. The annually declining figures of prosecutions for under-age gay sex suggest that the police are often reluctant to enforce it. Similar observations may be applied to the law on burglary but most people, if they saw a burglary being committed, would at least think they ought to report it. Few would bother if they saw two 18-year-old men having sex.

The most usual objection to changing the law is that immature boys may, as the Bishop of St Albans puts it, 'be pressured into choosing gay sexuality'. Yet television, films, newspapers, peer group, even government ministers provide ample support for the virtues of an active heterosexual life and for the merits of getting started on it as quickly as possible. The Wellcome survey suggests that homosexual contact is often a passing teenage phase. The temptations are probably greatest in single-sex boarding schools to which many Tory MPs are perfectly happy to entrust their children. But Wellcome shows that boarding pupils are no more likely than day school pupils to turn out homosexual.

None of this is to deny that boys of 16 to 21 are often immature. But why should the law concern itself with this particular hazard of immaturity? Boys of similar age may volunteer for the armed services, they may sleep with a girl who may become pregnant, they may marry and buy houses. Those who wish to compromise on 18 as the age of consent should ask themselves why they are prepared to allow a 17-year-old to handle a motor car but not another man's sexual organs. 'Aids', comes the reply. But older homosexuals, to say nothing of young heterosexuals, are also at risk of the disease. Are laws to be passed regulating their behaviour, too?

This leaves us with the argument that the law may have a symbolic function, showing that, as a society, we regard homosexuality as 'abnormal' and therefore to be discouraged. But is it any business of the state to define what is 'normal' and 'abnormal' in sexual behaviour? Should legislation also be framed to discourage, say, foot fetishists? The state may properly debate whether two people of the same sex will make suitable adoptive parents. It has no business bothering about what happens in bedrooms and it only makes a fool of itself by doing so.