Text last updated 1 September 2017
Links last updated 1 September 2017
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What this is about
For some years following equality in the age of consent in the UK, the issues of sexual offences affecting gay men and the gay age of consent had taken a back seat to more progressive issues like civil partnerships and rights at work. That is changing and gay activists are becoming increasingly concerned, especially at stringent new laws being directed at sexual offenders throughout Europe, some of which may impact on the human and civil rights of gay men and lesbians.
Age of consent
In the UK the age of consent is sixteen. Equality between heterosexuals and gays was achieved in 1999. Equality in Northern Ireland with the rest of the UK was achieved in 2008. Equality with the rest of the UK was achieved in Gibraltar in April 2011.
The age of consent in Northern Ireland was set at 17 but in June 2008 Parliament voted to equalise the age of consent in Northern Ireland with the rest of the UK at age 16.
Republic of Ireland
In the Republic of Ireland the age of consent is 17.
Teenage consensual behaviour
Clauses in the Sexual Offences Act made consenting sexual contact between young people under 16, where both partners are similar ages, a crime. Police appear to be applying the law. It is estimated by campaigners for law reform that up to a third of teenagers between the ages of 14 and 17 are already sexually active.
The subject of sexual offences has vexed gay organisations for decades. The last ten years have seen a huge improvement in the legal situation for gay men and lesbians but that has been balanced by an increase in the range of sexual offences and stricter punishment for offenders. Prior to 2003 Police would only pay attention to matters if there was a complaint by a member of the public but now they tend to be more proactive in conjunction with local authorities and communities.
“Sexual offences” consist of prostitution related offences and behaviour related offences. Some sexual offences in Britain only apply to gay men and are therefore discriminatory. The Labour government intended to deal with that situation but Police successfully lobbied against changes.
Persons having sex with young persons – straight as well as gay – often find themselves facing a period of detention as well as being required to sign the sexual offenders register for a number of years. Not knowing that a sexual partner was under the age of consent is not a defence.
“Cottaging” was made an offence in the 2003 Act. In May 2005 it was reported that Police Forces were beginning to use Anti Social Behaviour Orders to regulate the use of public toilets. Offenders were also being required to sign the sexual offenders register. On 14 February 2011 the coalition government announced the scrapping of ASBOs and replacing them with Criminal Behaviour Orders, which would be attached to criminal conviction banning an individual from certain activities or places.
The Protection of Freedom Act 2012 allows persons who have been convicted of or cautioned for section 12 of the Sexual Offences Act 1956 (buggery), section 13 of that Act (gross indecency between men), or section 61 of the Offences Against The Person Act 1861 or section 11 of the Criminal Law Amendment Act 1885 (corresponding earlier offences) to apply to the secretary of state for the conviction or caution to be disregarded, as long as the other person involved with the applicant in the conduct constituting the offence consented to it and was 16 or older, and any such conduct now would not be an offence under section 71 of the Sexual Offences Act 2003 (sexual activity in a public lavatory). Applications can now be made.
The secretary of state will give notice of the decision to the applicant and if the application is successful the offences will be disregarded 14 days after the date of that notice. The applicant must apply in writing and state: name, address, date of birth, the name and address of the applicant at the time of the conviction or the caution, if known and to the best knowledge of the applicant, the time when and the place when the conviction was made or the caution given, the conviction case number, and any other information the secretary of state may require; and the applicant may also state that the other person convicted or cautioned consented and their age, and that the conduct would no longer be illegal. The outcome will be notified in writing.
Records in computer systems will be deleted as soon as possible after the notice is received. For paper records which cannot be deleted due to their nature, ‘deleted’ means that an annotation will be added to the record to say that the offence has been disregarded. Information will be ‘deleted’ from the names database held by the National Policing Improvement Agency, records containing information about persons convicted of, or cautioned for, offences and kept by any court, police force, government department or local or other public authority in England and Wales for the purposes of its functions.
A person who has a disregarded conviction or caution is to be treated for all purposes in law as if the person has not committed the offence or been charged with or prosecuted for, convicted, sentenced or cautioned for the offence. The deleted offences will then be inadmissible in courts and for other purposes.
The information will also be hidden from CRB checks. The applicant will be protected from losing his job or facing prejudice in employment in any way if the ‘deleted’ conviction or caution becomes known.
There will be a right to appeal to the High Court if the request is turned down. There is no further appeal.
By June 2016, 320 applications for the deletion of offences were received by the Home Office, of which only 83 were granted. Many were refused because they fell outside the remit of the legislation or were related to acts which remain criminalised, such as so-called cottaging offences in public toilets.
On 19 October 2016 the Government announced its intention to add to the Police and Crime Bill a provision which if enacted would introduce a statutory pardon for people still living in cases where offences have been successfully deleted through the disregarding exercise. Deceased persons convicted of those offences will receive a posthumous pardon.
The Policing and Crime Act was passed in January, 2017 and received its Royal Assent. 59,000 deceased gay men who were convicted of sexual offences which are no longer offences are now understood to have been automatically pardoned. Statutory pardons will also be granted to people still living who apply to have their convictions removed. There are understood to be 16,000 men in that category, and they can now apply. They have to fill in a form.
A Bill to introduce pardons in Scotland for gay men convicted of lapsed offences, both deceased and living persons, was announced on 1 September 2017. The starting date for this measure is not known.
Public attitudes to public gay sex
There is evidence of a growing public hostility to cottaging and cruising, with increased surveillance, vigilance and action being taken on complaints. Local newspapers often run stories raising awareness and hostility to these practices, and there are increased reports of violent attacks and robberies on men wandering alone at times of night which might indicate they were out looking for sex. There have also been reports of young men being robbed by people following them into toilets on railway stations.
CCTV surveillance is being increased and its quality improved in public conveniences as well as in streets.
It is also becomming common for councils and county councils to ‘improve the environment’ at gay and heterosexual cruising sites by removing brush, shrubs, cover and even installing closed circuit television cameras for increased surveillance in an attempt to enforce the law.
Society has moved on and there are plenty of places for gay people to meet each other in comfort and safety. Gay Activist cannot condone behaviour which puts gay men and lesbians at risk of harm or death, and behaviour which threatens to undo all the hard won achievements of the last decade.
Sex offenders in England and Wales have the right to appeal against having to register on the sexual offenders register with the police for life, to comply with a British Supreme Court ruling that denying offenders the right of appeal is incompatible with their human rights. The Supreme Court ruled it was a breach of offenders’ human rights to be put on the register for life with no review. The right to appeal began from 1 September 2012. Individual police forces will consider applications. Sex offenders will only be able to appeal 15 years after leaving prison. Convicted adults can already seek a review after 15 years on the sex offenders register in Scotland.
Sexual Risk Orders and Sexual Harm Prevention Orders
In October 2013 the Government announced two new powers being made available to Police. Persons suspected of being a sex offender – even if they have never been convicted of a crime – can be made the subject of a Sexual Risk Order. The order will enable Police to restrict the use of the internet, stopping the person being alone with a child, and stopping travel abroad. The orders will be valid for two years and carry a jail sentence of up to 5 years for breaches.
The Sexual Harm Prevention Order can be applied to anyone convicted or cautioned for a sexual or violent offence including offences committed overseas, will last for a minimum of five years and no maximum duration, and include a requirement for the individual to place themselves on the sex offender’s register.
The two orders replace the current powers that can be imposed on sex offenders who have been convicted, cautioned, warned or reprimanded for an offence. The standard level of proof will continue to apply and the person concerned can appeal against the order or for it to be varied, renewed or discharged.
Chemical castration is the name given to a medical treatment which may be given to some persons convicted of sexual offences, but many gay men and lesbians may be unaware of the treatment. The technique, which usually works by lowering testosterone in the body, has been in use for many years, one notable case from the early 1950s was the chemical castration of gay mathematician Alan Turing who underwent a series of injections which had devastating effects on his health and his body and which directly led to him committing suicide.
One of the problems surrounding this issue is that it is easy to forget that the person who undergoes the treatment is a patient with the same human rights as everyone else.
Three types of drugs are used: anti-depressants, anti-androgens (medications that reduce sexual desire) and drugs normally used to treat prostate cancer. The third category are mostly used for chemical castration and have a lasting effect on sexual desire and the body. The drugs may be taken through a series of injections over a period of time.
The side effects are serious. They reduce sex drive, compulsive sexual fantasies, and capacity for sexual arousal. They can increase body fat and reduce bone density, increasing risk of cardiovascular disease and osteoporosis. They may make a man’s body more like a female body.
The BBC World Service spoke to a man who has undergone chemical castration.
The treatment is simply an injection taken once every four to six weeks. It is done in the hip at the local hospital. It took about six weeks for the full effects to ramp up. Basically it almost completely eliminates your sexual desires. I started taking it around Christmas time and I noticed the thoughts dropped off to the point where I was not having them anymore… These drugs have changed my life completely. I am not the same person I was.
Lawmakers who are under pressure from other groups in society to do something about sex crimes are increasingly turning to chemical castration as a punishment for all sexual offenders prosecuted for crimes like rape. Poland legalised compulsory chemical castration (at the end of their prison sentence) for sex offenders in 2009. The rights of the sex offender are balanced against the rights of society and there is a considerable removal of human rights and choice for the offender.
Chemical castration may or may not treat the symptoms, but it is not a cure, and the impression that it works may mislead or deceive society into thinking that they are safer or better protected when they are not. Ethically we must be absolutely certain that the treatment is justified and appropriate before we approve of it.
In Great Britain, Denmark, Sweden, Germany, Switzerland, and some US states, sex offenders can volunteer to undergo chemical castration. In many other countries the patient does not have a choice.
Does the treatment actually work? Medical opinion is deeply divided on the issue. There is no real evidence that medicine alone automatically leads to an improvement in behavior control. Doctors cannot even agree whether sexual deviance is driven by urges or psychological causes. Some doctors believe the medicine needs to be combined with education and psychological treatments. How effective are those treatments?
The treatment may, in some patients, be reversible: like many modern medical treatments, if you stop taking them, they stop working. A German study found that up to half of the castrated men still could have erections and sex, but their desire was weakened or even extinguished. Over 80 percent no longer masturbated; 70 percent gave up sex.
Is the treatment legal and ethical? Chemical castration constitutes cruel and unusual punishment and infringes on offenders human rights, not only their right to procreate, but also the increased risks to their health. Sex offenders’ fundamental rights might be being violated for the greater good of society. Forcing the patient to undergo any treatment without proper advice and without their consent or will is illegal in international law. It is medically unethical to coerce patients into castration without making them aware of the side effects and risks to their health in order, for instance, to obtain a reduced sentence.
The case for forced chemical castration of any human being remains controversial and unproven, and the technique should be condemned and outlawed on ethical, humanitarian and human rights grounds.
In February 2014 the UK Government announced increased funding for support groups to provide appropriate services to men who had been raped by other men. Police figures showed there were 2,164 rape and sexual assaults against males aged 13 or over in the past year but it is believed many attacks go unreported. The Minister stated that in the UK 12% of all rape cases involved a male raping a male.
Rape Crisis report that 12,000 men are raped in England and Wales every year.
In 2015 the Howard League for Penal Reform reported that Prisoners said rape and sex “out of necessity” was common among inmates, while the large number of sexual partners prisoners had raised serious concerns regarding sexually transmitted diseases. Masturbation and porn was so accepted and even encouraged by prison guards that when he asked for a copy of the Bible, he was instead given a stash of porn magazines to “to help him get to sleep”.
Heterosexual men described how they had sex with gay or bisexual prisoners “out of necessity” while in prison, while gay and bisexual men interviewed said they could be “fairly” or “totally” open about their sexuality inside, but it was wise to be discreet about their sexual activities and relationships. Most sexual activity took place in one of the inmates’ cells or in the showers; the number of sexual partners prisoners had varied from one to 35.
Acts of Parliament
Pink News, 5 June 2008: Change to age of consent given parliamentary approval
BBC News, 16 Feb 2011: Sex offender registration appeals to go ahead
The Guardian, 1 Sep 2012: Sex offenders gain right to appeal against registration
BBC News, 28 Nov 2012: Man fights to clear gay criminal record from 1950s
Gay Star News, 18 Jan 2013: Police bosses tell cops: don’t target gays in DNA roundup
BBC News, 9 May 2013: Age of consent should be 13, says barrister
BBC News, 17 Nov 13: PM rejects call to lower age of consent to 15
Independent, 19 Nov 2013: Male victims of rape, sexual abuse and depression: Breaking the silence on International Men’s Day
Daily Mirror, 13 Feb 2014: Male victims of rape and sex abuse to be helped by new £500,000 support fund
Independent, 3 March 14: Plan ‘failing’ to clear criminal records of gay men
BBC, 20 October 2016: Alan Turing Law: Thousands of gay men to be pardoned
Rape Crisis, undated: Rape statistics for the UK
Survivors UK, undated: Break the silence on male rape and sexual abuse victims
Independent, 17 March 2015: Sex in Prison
BBC, 31 January 2017: Thousands of gay men pardoned for past convictions
Sun, 15 April 2017: Who was Alan Turing, what is Turing’s Law and how many gay men were posthumously pardoned after it was abolished?
BBC, 1 September 2017: Gay men in Scotland to receive ‘Turing Law’ pardons