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> Rights and Discrimination and the Criminal Law
Rights and Discrimination in Criminal Law
There have never been laws criminalising sexual relations between women, though there have been some prosecutions for ‘insulting behaviour’ (see below) and ‘indecent assault’.
Laws pertaining specifically to sex between gay men have been around since 1885. Over the years thousands of men have been prosecuted, imprisoned and disgraced through the enforcement of these laws. The first wave of reforms came in the 1950’s when consensual sex between men aged 21 and over was decriminalised (except in the armed forces), provided the act was carried out in private. The definition of privacy meant that an act would not be legal if it took place where a third person was, or was likely to be present.
In 2000, the gay rights organisation Stonewall successfully challenged these privacy restrictions in the European Court of Human Rights (ECtHR) as a breach of the right to privacy under Article 8 of the Convention. The age of consent for gay men was reduced from 21 to 18 in 1994 and was finally equalised in 2001 to 16 in England, Wales and Scotland, and 17 in Northern Ireland. At the same time a new offence of ‘abuse of trust’ was introduced. This makes it unlawful for an adult in a position of authority e.g. a teacher to have a sexual relationship, whether heterosexual or homosexual, with a young person between the ages of 16–18.
On 12 January 2000, the ban on homosexuals serving in the armed forces was lifted with immediate effect. This followed a ruling in the ECtHR that the ban breached Article 8 (right to privacy) of the European Convention on Human Rights (the Convention). The UK Government has subsequently introduced a code of conduct governing personal relationships in the armed forces under which sexual orientation is essentially a private matter for the individual. The code applies to all personnel without regard to gender, sexual orientation, ethnicity or religious background. The code sets out circumstances in which the service has a duty to intervene in the personal lives of its personnel. The test to be applied is whether the actions or behaviour of an individual have, or are likely to have, an impact on the efficiency or operational effectiveness of the service.
The Sexual Offences Act 2003 (‘SOA 2003’), which came into force in May 2004, repeals most of the remaining discriminatory sexual offences targeting gay men, including buggery, gross indecency and soliciting. There are some concerns about a new offence created by the SOA 2003 of ‘sexual activity in a public lavatory’. Gay men in particular are concerned that although the offence is phrased in a neutral way, in reality it will be used by police primarily against gay men. The Home Office has provided assurances that this is not the case and that the law will be enforced in a balanced way. The term ‘public lavatory’ is defined quite broadly and includes a public lavatory to which the public, or a section of the public, has access to, whether for payment or otherwise. Accordingly, having sex in a locked cubicle in a night club, for example, would be an unlawful act.
There are a number of gay men who were convicted of gross indecency or buggery in relation to sexual acts with a 16 or 17 year old man before the age of consent for gay men was lowered to 16. The Sex Offenders Act 1997 included these as offences that lead to automatic placement on the sex offenders register. With the age of consent lowered to 16 and the offences of gross indecency and buggery now abolished, the SOA 2003 sets out a procedure whereby such offenders can apply to the Home Secretary for removal from the sex offenders register. The Home Office has issued guidance on how this procedure is to be administered: ‘The Removal Of Offenders Convicted Of Buggery And Indecency Between Men From The ‘Sex Offender Register’ (Home Office Circular 019/2004).
Remaining discriminatory offences
Despite recent reform of the criminal law, some offences that have been historically used to target gay men, and in some cases lesbians as well, remain in place. Prosecutions of these offences are rare and, it is thought, would be open to challenge under Article 8 of the Convention. The offences are set out below:
Displaying affection in public, such as kissing or fondling each other in public in the same way as heterosexuals, may be deemed as 'insulting behaviour' under the Public Order Act 1986. Much will depend on the particular facts of the case and, as it is an offence which can only be tried in the Magistrates' Court, it will usually depend on the moral and political views of the magistrates as to whether the behaviour is regarded as insulting. The term 'insulting' is not defined by the law; it has to be given its ordinary meaning, but in a 1986 case, the courts upheld a conviction under similar (though not identical) legislation where two men were fondling each other's genitals and buttocks over their clothes in the course of saying goodnight in a public place.
In 1973 a gay magazine was convicted of conspiracy to corrupt public morals for publishing explicit gay contact adverts. Since this date there have been no further prosecutions of this kind and explicit advertisements are now commonplace.
Homosexual Panic Defence
It is still legally acceptable for an accused charged with murder to argue that he or she was provoked by a homosexual advance. This reduces the sentence from mandatory life to one determined by the judiciary. This defence was successful argued on behalf of Mr Hunt in relation to the murder of Mr Delamotta in 1994, despite no independent evidence to support his claim.
Recognition of Hate Crimes
A hate crime is any criminal offence committed against a person or property that is motivated by an offender's hatred of someone because of race, religion, gender, sexual orientation or disability. Hate crimes against gay men, lesbians, bisexuals and transgendered people are commonplace. Stonewall reports that a quarter of lesbians and a third of gay men have experienced at least one violent attack between 1990-1995. It is thought that the incidents of such crimes are increasing.
Unlike for race or religion, there are no separate offences relating specifically to homophobic hate crime. However, the Criminal Justice Act 2003 provides for increased sentences where an offence was motivated by hostility based on sexual orientation. In 2006, this provision was used to increase the sentence to 28 years for the murder of a barman, Mr Dobrowski, on the basis that homophobia was an aggravating factor.
Recognition of Male Rape
Under a separate development the offence of rape has been extended so that it can be committed against both female and male victims.
Laws pertaining specifically to sex between gay men have been around since 1885. Over the years thousands of men have been prosecuted, imprisoned and disgraced through the enforcement of these laws. The first wave of reforms came in the 1950’s when consensual sex between men aged 21 and over was decriminalised (except in the armed forces), provided the act was carried out in private. The definition of privacy meant that an act would not be legal if it took place where a third person was, or was likely to be present.
In 2000, the gay rights organisation Stonewall successfully challenged these privacy restrictions in the European Court of Human Rights (ECtHR) as a breach of the right to privacy under Article 8 of the Convention. The age of consent for gay men was reduced from 21 to 18 in 1994 and was finally equalised in 2001 to 16 in England, Wales and Scotland, and 17 in Northern Ireland. At the same time a new offence of ‘abuse of trust’ was introduced. This makes it unlawful for an adult in a position of authority e.g. a teacher to have a sexual relationship, whether heterosexual or homosexual, with a young person between the ages of 16–18.
On 12 January 2000, the ban on homosexuals serving in the armed forces was lifted with immediate effect. This followed a ruling in the ECtHR that the ban breached Article 8 (right to privacy) of the European Convention on Human Rights (the Convention). The UK Government has subsequently introduced a code of conduct governing personal relationships in the armed forces under which sexual orientation is essentially a private matter for the individual. The code applies to all personnel without regard to gender, sexual orientation, ethnicity or religious background. The code sets out circumstances in which the service has a duty to intervene in the personal lives of its personnel. The test to be applied is whether the actions or behaviour of an individual have, or are likely to have, an impact on the efficiency or operational effectiveness of the service.
The Sexual Offences Act 2003 (‘SOA 2003’), which came into force in May 2004, repeals most of the remaining discriminatory sexual offences targeting gay men, including buggery, gross indecency and soliciting. There are some concerns about a new offence created by the SOA 2003 of ‘sexual activity in a public lavatory’. Gay men in particular are concerned that although the offence is phrased in a neutral way, in reality it will be used by police primarily against gay men. The Home Office has provided assurances that this is not the case and that the law will be enforced in a balanced way. The term ‘public lavatory’ is defined quite broadly and includes a public lavatory to which the public, or a section of the public, has access to, whether for payment or otherwise. Accordingly, having sex in a locked cubicle in a night club, for example, would be an unlawful act.
There are a number of gay men who were convicted of gross indecency or buggery in relation to sexual acts with a 16 or 17 year old man before the age of consent for gay men was lowered to 16. The Sex Offenders Act 1997 included these as offences that lead to automatic placement on the sex offenders register. With the age of consent lowered to 16 and the offences of gross indecency and buggery now abolished, the SOA 2003 sets out a procedure whereby such offenders can apply to the Home Secretary for removal from the sex offenders register. The Home Office has issued guidance on how this procedure is to be administered: ‘The Removal Of Offenders Convicted Of Buggery And Indecency Between Men From The ‘Sex Offender Register’ (Home Office Circular 019/2004).
Remaining discriminatory offences
Despite recent reform of the criminal law, some offences that have been historically used to target gay men, and in some cases lesbians as well, remain in place. Prosecutions of these offences are rare and, it is thought, would be open to challenge under Article 8 of the Convention. The offences are set out below:
Displaying affection in public, such as kissing or fondling each other in public in the same way as heterosexuals, may be deemed as 'insulting behaviour' under the Public Order Act 1986. Much will depend on the particular facts of the case and, as it is an offence which can only be tried in the Magistrates' Court, it will usually depend on the moral and political views of the magistrates as to whether the behaviour is regarded as insulting. The term 'insulting' is not defined by the law; it has to be given its ordinary meaning, but in a 1986 case, the courts upheld a conviction under similar (though not identical) legislation where two men were fondling each other's genitals and buttocks over their clothes in the course of saying goodnight in a public place.
In 1973 a gay magazine was convicted of conspiracy to corrupt public morals for publishing explicit gay contact adverts. Since this date there have been no further prosecutions of this kind and explicit advertisements are now commonplace.
Homosexual Panic Defence
It is still legally acceptable for an accused charged with murder to argue that he or she was provoked by a homosexual advance. This reduces the sentence from mandatory life to one determined by the judiciary. This defence was successful argued on behalf of Mr Hunt in relation to the murder of Mr Delamotta in 1994, despite no independent evidence to support his claim.
Recognition of Hate Crimes
A hate crime is any criminal offence committed against a person or property that is motivated by an offender's hatred of someone because of race, religion, gender, sexual orientation or disability. Hate crimes against gay men, lesbians, bisexuals and transgendered people are commonplace. Stonewall reports that a quarter of lesbians and a third of gay men have experienced at least one violent attack between 1990-1995. It is thought that the incidents of such crimes are increasing.
Unlike for race or religion, there are no separate offences relating specifically to homophobic hate crime. However, the Criminal Justice Act 2003 provides for increased sentences where an offence was motivated by hostility based on sexual orientation. In 2006, this provision was used to increase the sentence to 28 years for the murder of a barman, Mr Dobrowski, on the basis that homophobia was an aggravating factor.
Recognition of Male Rape
Under a separate development the offence of rape has been extended so that it can be committed against both female and male victims.
