Equalising the age of consent will not end discrimination against gay men in criminal law. It is time to repeal all victimless gay offences.
Next Sunday is the thirtieth anniversary of the partial decriminalisation of male homosexuality in England and Wales. On 27 July 1967, the Sexual Offences Act finally received Royal Assent, ending the total ban on sex between men which had existed since 1885.
Many people assume that the 1967 Sexual Offences Act legalised homosexuality. It didn’t. Others are under the misapprehension that equalising the age of consent will end anti-gay discrimination in sexual offences law. It won’t.
The pre-1967 laws against gay sex – Sections 12 and 13 of the 1956 Sexual Offences Act – were never repealed. They remain on the statute books, even today.
What’s more, this 1956 legislation, which derives directly from Victorian era laws passed in 1861 and 1885, continues to describe homosexual relations using the disparaging language “unnatural offences” and “gross indecency”. No specifically heterosexual offences, not even rape or incest, are referred to in such pejorative, demeaning terms. Homophobia is enshrined in the wording of the law.
The 1967 Act was a very limited reform. It only exempted gay sex from criminal prosecution if it took place between two consenting males aged 21 or over in private. Otherwise, the 1956 anti-homosexual laws still apply, with sex between men illegal in all other circumstances.
This narrow liberalisation prompted the police to enforce the remaining prohibitions with even greater harshness. Immediately after decriminalisation in 1967 there was a big crackdown on gay men involved in age of consent violations, cruising and meeting in public places, and sexual acts in toilets and parks. Contrary to expectations, convictions for these forms of consenting homosexual behaviour soared after the so-called “legalisation” of homosexuality.
The number of men found guilty of the gay offence of “gross indecency” in 1966 was 420. By 1971, it had more than trebled. This was not what the reformers had intended. And it got worse. Following the moral panic over AIDS, convictions for this victimless offence rose to 1,503 in 1989 – compared to only 890 in 1954 at the height of the anti-gay witch-hunts when homosexuality was still totally illegal.
“The reforms of 1967 were deeply flawed”, according to Anthony Grey, who was secretary of the Homosexual Law Reform Society in the 1960s. “It is disappointing that so little has been achieved in the last three decades to remedy these deficiencies”.
Under the 1967 Act, the gay age of consent was set at 21, five years higher than the heterosexual age of 16. To further appease those who feared the corruption of youth, the maximum penalty for a man aged 21 or over convicted of oral sex or masturbation with a 16 to 21 year old male was increased from two to five years jail.
For the first time in English law, gay sex involving the participation – or even mere presence – of more than two persons was explicitly outlawed. Somewhat bizarrely, procuring two other men to have anal sex with each other continued to be illegal, even in cases where the sexual acts were themselves lawful.
Within six months of the 1967 Act taking effect, its parliamentary sponsor, Leo Abse MP, admitted in The British Journal of Criminologythat the legislation was too restrictive and open to harsh interpretation, contrary to what he had intended.
This critical view of decriminalisation has since been amply confirmed. In the 1980s alone, there were over 20,000 convictions for the predominantly gay and consensual offences of “buggery”, “gross indecency”, “soliciting” and “procuring”. Most of these men would never have been arrested if their partner had been a woman, since comparable heterosexual behaviour is either not a crime or is rarely prosecuted.
The flaws of the 1967 Act are legion, and remain unamended 30 years later. Gay sex is, for example, only immune from prosecution if it occurs “in private”. But the legal definition of private is much stricter for homosexual relations than for heterosexual acts. Gay sex is not private in the eyes of the law if more than two people “take part or are present”. This criminalises gay threesomes and orgies – even when they occur in the privacy of a person’s own home. It also outlaws sex between two men that is watched or videoed by a third person (male or female) who does not participate in the sexual activity. In such cases, all three people are committing illegal acts. Odder still, a private house is not deemed a private place if two males have sex in a bedroom while other people are present in other parts of the house. There are no similar “in private” restrictions on heterosexual or lesbian sex.
Although prosecutions are rare, they do happen. South Yorkshire police raided a private gay party in 1993, arresting all 38 guests on charges of “conspiracy to commit acts of gross indecency”. A gay man was prosecuted last year for holding a sex party with four other men in his own home. Two years ago, three gay men were arrested after a routine search stumbled on a video showing them having sex together. Comparable heterosexual behaviour is never the subject of police action because it isn’t illegal.
Gay men also get ensnared by two other legal discriminations: the laws against “soliciting” and “procuring”, which technically prohibit any attempt to arrange, aid and abet, facilitate, encourage or invite the commission of a homosexual act. Gay bars, contact ads, dating agencies, phone lines and night-clubs are all, in theory, illegal. They could be closed down overnight if the police decided to strictly enforce the law. This creates the curious contradiction that the 1967 Act decriminalised homosexuality, but left intact the statutes that ban gay men from contacting each other and communicating their desire for sexual relations.
The criminalisation of male soliciting dates from the Vagrancy Act 1898, and remains in force as Section 32 of the 1956 Sexual Offences Act. It is a crime for a man to “persistently solicit or importune in a public place for immoral purposes”. A 1973 House of Lords judgement ruled that homosexuality is still an “immoral purpose”, despite decriminalisation in 1967. This means it is unlawful for two consenting adult men to cruise or chat-up each other in any non-private location with the aim of having sex together. The act of attempting to meet with the intention of homosexual relations is a crime, even if the two men never actually meet and never have sex.
Judges have interpreted soliciting and importuning as any form of communication, ranging from verbal propositions and passing notes to merely smiling and winking at another man. This results in the legal anomaly that it is a criminal offence for male homosexuals to meet each other in public for the purpose of arranging sexual relations that are perfectly lawful.
Procuring homosexual acts likewise remains illegal, in most circumstances, under the 1956 and 1967 Acts. According to the letter of the law, it is still a crime to invite a man under the age of consent to have gay sex, to introduce two men who fancy each other in the knowledge that they are likely to have homosexual intercourse, to encourage or assist more than two men to have group sex together, and to proposition another man to have sex in a non-private place such as a healthland or the back seat of a car in a deserted street in the middle of the night. All these acts are classified as procuring and remain outlawed.
In recent years, following high-profile campaigns against police harassment of the gay community, the number of gay men prosecuted for consensual acts has dropped dramatically to around 500 a year. That is still far too high, but much less than the 2,500 prosecutions in 1989.
Apart from the extension of the 1967 Act to Scotland in 1980 and Northern Ireland in 1982, in the last three decades there has been no major gay law reform. The gay male age of consent was lowered from 21 to 18 in 1994. But by rejecting equality at 16, parliament maintained discrimination and reiterated the second class legal status of gay people.
Although the government is now offering a free vote to equalise the age of consent at 16, it shows no sign of repealing other discriminatory, gay-only sexual offences. Thirty years after the 1967 Act, it is time that all crimes without victims were abolished.
* Peter Tatchell is a member of the gay rights group OutRage!
July 1997 (Unpublished)