Equality Alliance

Double standards: discrimination against gay men in the criminal justice system

The age of consent

Unequal ages: the age of consent is 16 for heterosexuals, but 18 for gay men.

Unequal protection: if a girl under 16 has sex with a man, she commits no offence; only the man is guilty of an offence. If a young gay man under 18 has sex with a man, he himself is committing an offence. On the one hand the law says he is not old enough to make up his own mind, on the other hand when he does so he is treated as a criminal, not a victim. In January a young man in Bolton who had gay sex at 17 was convicted of gross indecency. The police came to arrest him at his place of work and he lost his job as a result.

Unequal enforcement: a Home Office study found that in most cases of unlawful sexual intercourse with a girl under 16 the police do not press charges. By contrast gay sex with a boy under 16 is seen as a very serious offence.

Unequal penalties: the penalty for an age of consent offence is up to two years in prison for heterosexuals but up to five years for gay men. (So it is two years for heterosexual sex with a girl of 13, but five years for gay sex with a young man of 17).

Unequal sentencing: a woman in her late thirties who had an affair with a boy of 14, and took him to Florida with her, was not sent to prison. She got two years' probation. If a man in his late thirties had a relationship with a boy of 14 there is no question he would be sent to prison.

Unequal definitions of paedophiles: heterosexuals only have to register as sex offenders if they have sex with someone under 16; gay men are seen as paedophiles if they have sex with someone under 18. This bolsters the widespread prejudice that gay men are more likely to be paedophiles than heterosexual men. In Bolton a young man of only 20 who had sex with a 17 year old has been forced to register as a Sex Offender.

Sex in public

Unequal charges: heterosexuals who have sex in public commit a minor offence known as "outraging public decency". If they are prosecuted (which is rare) the most it warrants is a small fine. Gay men who have sex in public are guilty of "gross indecency between males", a gay-only offence which carries up to two years in prison. They could be charged with outraging public decency, but the more serious charge is used.

Unequal enforcement: public sex offences generally take place in remote areas after dark and gay sex offenders are generally only detected because the police go looking for them. The police do not go to places where heterosexuals are known to have sex in cars looking to arrest people for outraging public decency.

Unequal sentences: men convicted of gross indecency in London currently get fines of up to £200; outside of London the fines can be much higher, up to £1,000. But where heterosexuals have sex in public, even in full view of the public, they seem to be let off lightly. In 1992 a couple who had sexual intercourse on a crowded train were fined £50. Last year a man and a woman who had sex on a car bonnet in a Heathrow car park were let off with a conditional discharge. They did what they did in broad daylight (they were making a porn video) and they could easily have been seen by the public or even by children. Yet they got a conditional discharge, which is virtually unheard of for gay men convicted of gross indecency.

Group sex in private

Group sex in private is not an offence for heterosexuals, but it is for gay men if more than two people are present. This law is not a dead letter. In 1996 a gay man was convicted of gross indecency for group sex in his own home. He was convicted on the basis of home video evidence. No one had complained and all the participants were over 30. He is now taking a case to the European Court of Human Rights. In January 1998 seven men in Bolton were convicted of gross indecency for group sex in private.

Consenting sadomasochism

In 1990 six men were convicted of assault occasioning actual bodily harm and wounding for consenting SM sex in their own homes, and were sent to prison. None of them had complained to the police - these were victimless crimes. They appealed to the House of Lords but in 1993 it held (by a majority of 3 to 2) that public policy considerations required that consenting sadomasochistic activities in private between homosexuals involving the infliction of actual bodily harm should constitute criminal offences.

In 1996 however a man found guilty of assault occasioning actual bodily harm after branding his initials on his wife's buttocks at her own request had his conviction overturned by the Court of Appeal. Lord Justice Russell 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". He said the proceedings should never have been brought and "had served no useful purpose".

How the law should regulate sexual behaviour

Three kinds of offences should be dealt with as separate offences: It should make no difference what specific sexual act is involved; the question should be did both parties consent, were they old enough to consent, and was anyone else likely to be offended by seeing them.

The same offences should apply regardless of gender or sexual orientation and they should be equally enforced regardless of gender or sexual orientation.

How the law could be reformed to meet these objectives

A few simple amendments to the law could achieve most of these objectives.
  1. Repeal s.13 of the Sexual Offences Act 1956 (indecency between men).
  2. In s. 12 of the Sexual Offences Act 1956 (buggery) after "It is felony for a person to commit buggery" delete "with another person otherwise than in the circumstances described in subsection 1A below or" and delete from s.1A on. All that is left is "it is felony for a person to commit buggery with an animal".
  3. Repeal the Sexual Offences Act 1967, which provides that homosexual acts are not an offence of buggery or gross indecency provided they take place in private and involve two and only two consenting adults aged 18 or over. This Act would no longer be needed since the offences of gross indecency and buggery would no longer exist. (Sections 1(3), 1(3A), 1(4), 5 and 6 could be replaced by amendments to the provisions that apply to male-female situations).
  4. Repeal s.32 of the Sexual Offences Act 1956 ("soliciting by a man for an immoral purpose") - another gay-only offence.

No wrongful gay sex act would go unpunished because

  1. Rape and allied offences can be prosecuted as rape or indecent assault.
  2. Sex with boys under 16 can be prosecuted as indecent assault.
  3. Sex in public can be prosecuted as outraging public decency.
If necessary, anal intercourse could be incorporated into the law on unlawful sexual intercourse with a girl under 16 rather than the law on indecent assault. This would mirror the 1994 reform of the law on rape (rape now covers sexual intercourse "whether vaginal or anal" without the other person's consent).

The unequal law which makes SM sex a crime for gay men but not, it seems for heterosexuals, should be dealt with as part of the reform of the Offences Against the Person Act 1861.

Stonewall
February 1998

 

URL: http://www.RoseCottage.me.uk/EqualityAlliance-archives/SexOffDouble.html
Last modified: 18-August-2000