An End To The Buggery And Gross Indecency Laws

(Commissioned by, and published in the May 2003 edition of Gay Times)

[Since this article was written, the Home Office haSeannounced it is dropping Clause 74 and to cries of concern from Stonewall and Martin Bowley QC who served on the working group, said it will be amending the outraging public decency' law. No details of how in the Bill or otherwise - or precisely with what, have been given.21 April 2003.

In the event the government accepted the clause making cottaging a specific offence.]

The Sexual Offences Bill which has just started its passage in the House of Lords, will probably be the most important gay law reform in the past thirty years. Despite all the fuss over the age of consent, it has been convictions for gross indecency, buggery and public indecency that, over decades, have brought hundreds of gay men into court (like Oscar Wilde), and exacted numberless toll of suicides, lost jobs, wrecked marriages, and mental breakdowns.

I instance one horrifying suicide here in Northern Ireland when an Anglican clergyman, arrested for an alleged offence in a toilet, took half his head off with a shotgun, and finding himself still alive and running around, threw himself down a well. Latterly, if Ron Davies MP had not so feared press exposure as a sex criminal he could have reported his car stolen on Clapham Common to the police instead of covering up.

All gay-specific crimes will be scrapped in England and Wales when this new gender-neutral law commences. The discussion over the possible grading of rape (e.g. creating the offence of date rape), and the definition of consent, continues in the Lords, which should interest both gaySeand lesbians concerned to see that the law becomes more effective.

The Bill certainly won’t make cottaging legal but, as it currently stands, will permit some outdoor cruising. Clause 74 (sexual activity, in public) presently reads that an offence occurs, if in a public place, someone knows that, or is reckless as to whether during sexual activity someone other than a person he knows to be a willing observer will see any part of him or of another participant.

The concept of non-recklessness will therefore be a permitted defence or mitigation, which police will have to take into account. The drafting of clause 74 is still open but the government has indicated it will reconsider its phrasing, since peers have expressed concern that it might legalise sex in toilets, while The Sun has started a campaign to prevent it making bonking in your back garden’ also a crime.

Whether the government will support any of the more restrictive amendments, that have now been tabled, remains to be seen. None of their own has appeared on the Order Paper (you can check with the House of Lords website). I understand Stonewall is concerned with this issue, but they will not reveal what their intentions are, nor the discussions they are having with the Home Office (if any), so we must rely on their wisdom and good sense as our gay trade union to get this one right. [They didn't] It strikes me, nonetheless, that what in clause 74 constitutes a private place – currently only a dwelling – could be changed to include other inaccessible structures e.g. a closed office. Or the words could be reversed to say sex is illegal in a public place’ leaving that phrase undefined.

Cruising like dreadlocks, iSean ethnic characteristic of gay men. No matter how many gay bars open, the facility for males to have sex with one another at the drop of a hat, makes cruising a perpetual fact. The phrasing of clause 74 therefore will mean, over decades, a large difference in the number of prosecutions of gay men. That matters a great deal.

Criminal law has been devolved to Scotland but not yet to Northern Ireland. Despite, since the Good Friday Agreement, a panoply of gay equality lawSeand a human rights commission, we were to be left out. Northern Ireland, and this writer, have now experienced three key precedents, including a European Court of Human Rights judgment in 1981. Kate Hoey MP’s successful (and contested) amendment in 1994 to include us in the first age of consent reduction (to 18), and Mo Mowlam’s promise that we would be included in the second, later government measure equalising the age. She kept her promise. Yet a few years on, the Northern Ireland Office (NIO) still failed to take us into account.

The Northern Ireland Gay Rights Association’s (NIGRA) campaigning machine cranked up once again and we circularised 1,300 peerSeand MPs not an easy or swift task for a small group. Replies came flooding in, mostly, sadly, from supporters not able or willing to propose amendments themselves, a very few antagonists, and many like Chris Smith MP who put heavy pressure on the NIO Ministers. Baroness Noakes has asked key parliamentary questions, as did Lord Beaumont of Whitley, who tabled a very welcome series of amendments we wrote. (He also assisted NIGRA twenty-five years ago!).

Locally, Lord Maginnis of Drumglass (Ken Maginnis, the former Fermanagh and South Tyrone MP) advised NIGRA saying, I do not believe that human rights in any way necessitate a commitment to unnatural and obscene practices. Certainly I was opposed to the reduction of the age of consent and the legalising of other filthy practiceSeand will so continue.

Nevertheless, the government caved in at speed. Northern Ireland, it was now proposed, would be further included in the Bill. Gay crimes would also be targeted we were told. On 1 April, during the Bill’s committee stage, Lord Falconer promised, as regards the province, to deal with certain inequalities that have been identified.

NIGRA is particularly keen that the offence of indecent behaviour’ which is frequently used here against solo cottagerSeand cruisers (gross indecency being the charge when more than one person is a participant) is also scrapped, and that the not being reckless’ defence is therefore available should such charges be considered. And we will press home our amendments on those other missing aspects, such as the abominable’ crime of buggery which is not yet for the chop in Northern Ireland, as straights can be guilty of it. We need all the support we can get in these areas when the committee stage resumes in May – 100 of the Bill’s 128 clauses remain to be dealt with.

Readers will be interested to learn that Northern Ireland is also being provided with three new crimes, courtesy of the Bill. Despite our fascination with death, necrophilia is only now to hit the local statute book by way of clause 73 (sexual penetration of a corpse). Exemption from conviction is provided for morticians, and those unfortunates who, in the words of the Bill’s explanatory notes, penetrate any part of a dead body fully believing the person to be alive, but who is in fact dead, or unexpectedly dies during intercourse. Alongside interference with human remains, come new offences of bestiality (intercourse with an animal) and voyeurism (for sexual gratification). No local rights body however spoke up for sheep shaggers et al, adding that they do not address UK legislation.

The part of the Bill which involves rape and non-consensual buggery is meant now to be the subject of a NIO review which should ensure a continued low rate of conviction for many more years for rapists but which will provide continued employment for those in the consultation and rights industries.

Jeffrey Dudgeon (successful Strasbourg plaintiff 1981, and author of the recently published book – Roger Casement: The Black Diaries)

56 Mount Prospect Park
Belfast
BT9 7BG

Tel 028 90664111

jeffreydudgeon@hotmail.com