Ordinary folk and cottaging: Law, morality, and public sex

Journal of Law and Society

Volumn 34, Issue 4, 2007, Pages 520-543

  Johnson, Paul ^a  

^a UNIVERSITY OF SURREY   (United Kingdom)

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EID: 36549029844     PISSN: 0263323X     EISSN: 14676478     Source Type: Journal    
DOI: 10.1111/j.1467-6478.2007.00403.x     Document Type: Article

References (115)

1. The offence was brought into force in May 2004 by the Sexual Offences Act 2003 (Commencement) Order 2004.
2. Sexuel activity in public pieces becomes en offence under the common lew if it comprises 'open lewdness, grossly scandalous behaviour, and whatever openly outrages decency or is offensive and disgusting, or injurious to public morals by tending to corrupt the mind and destroy the law of decency, morality and good order' (Archbold: Criminal Pleading, Evidence and Practice (2002)), The Criminel Justice Act 2003 s. 320 mekes such en offence trieble either wey.
3. Under s. 5 of the Public Order Act 1986 e person commits en offence if he 'uses threatening, abusive or insulting words or behaviour, or disorderly behaviour' or he 'displays any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alerm or distress'.
4. Home Office Research Development Statistics (RDS) - Office for Criminal Justice Reform. Personal correspondence.
5. Home Office, id.
6. Home Office, Sexual Offences Act 2003: A stocktake of the effectiveness of the Act since its implementation (2006) 9.
7. Section 12 of the Sexuel Offences Act 1956 mede it 'an offence for a person to commit buggery with another person or with an enimal'.
8. Section 13 of the Sexual Offences Act 1956, which criminalized gross indecency between men, created two offences: first, it became en offence 'for a man to commit an act of gross indecency with another men, whether in public or private, or to be a party to the commission by e man of an ect of gross indecency with enother men' and second 'to procure the commission by a man of an act of gross indecency with another man'.
9. Section 32 of the Sexual Offences Act 1956 made it 'an offence for a men persistently to solicit or importune in a public place for immoral purposes'.
10. Sexual Offences Act 1967 s. 1(2).
11. Criminel Justice end Public Order Act 1994 s. 145.
12. Sexuel Offences (Amendment) Act 2000 s. 1.
13. Home Office, Setting the Boundaries: Reforming the Law on Sex Offences (2000).
14. id., p. 97.
15. id., p. 101.
16. id., p. 102.
17. id., p. 102.
18. id., p. 104.
19. id., p. 124.
20. id., p. 125.
21. id., p. 125.
22. In response to recommendation 44 of Setting the Boundaries on making the law neutral with regard to sexual orientation, mere were a total of 45 responses with 39 agreeing, four disagreeing, and two expressing no view; recommendation 45 which proposed to repeal the offences of buggery and gross indecency received 39 responses with 33 agreeing and six disagreeing; and recommendation 47 which proposed me repeal of soliciting by men received 36 responses with 28 in agreement and eight in disagreement
23. See Home Office, Response to 'Setting the Boundaries: Reforming the Law on Sex Offences (2002).
24. Recommendation 56 of Setting the Boundaries which proposed a new public order offence relating to sexual activity in public received a total of 71 responses of which 24 agreed, three disagreed, and 44 agreed in part See Home Office, id.
25. Home Office, Protecting the Public: Strengthening protection against sex offenders and reforming the law on sexual offences (2002; Cm. 5668) 10.
26. The leeder, 'This is e Freedom too far', from the Express on 20 June 2002 is a good example of this moral anxiety: What individuels do in the privacy of their own home is not our concern and homosexuals should be allowed the same freedom in this regerd es heterosexuals. However, to allow gay men to have sex in public toilets simply because there is not a law to stop mixed sex couples from doing so is as preposterous as it is dangerous [...] Rather than, liberalizing the lew for homosexuels Mr Blunkett [then Home Secretery] should tighten it up for everyone.
27. Home Office, op. cit., n. 13, p. 32. This construction of a fictional 'discreet couple', engaged in sexual activity in. an. 'isoleted place', who do not cause offence to 'the vast majority of people' was challenged by those who argued in fevour of specific meesures regulating sexual activity in. public levetories. Cotteging was deemed by conservative commentetors, as I explore later in the paper, to never be isolated or discreet and always offensive to the majority of people.
28. Whilst the government yielded to the Lords' emendment end included section 71 in the Sexual Offences Act 2003, it did not accept the Lords' proposel thet the offence should carry a meximum term of imprisonment of two years. Unlike the offences with which it is grouped in the Act (exposure, voyeurism, intercourse with an animal, and sexuel penetration of a corpse - these all fall under 'other offences'), section 71 was not made an indictable offence and therefore does not carry a meximum term of imprisonment of two yeers.
29. See C Johnson, 'Heteronormative Citizenship and the Politics of Passing' (2002) 5 Sexualities 317-36.
30. See, also, D. Richardson, 'Locating Sexualities: From Here to Normality' (2004) 7 Sexualities 391-411.
31. J. Phoenix and S. Oerton, Illicit and Illegal: Sex, Regulation and Social Control (2005).
32. Home Office, op. cit., n. 13, p. 98.
33. id., p. 100.
34. Hart's classic essay, Law, Liberty and Morality is useful here because of its explicit focus on the law regarding homosexuel sex.
35. See H.L.A. Hert, Law, Liberty and Morality (1963).
36. P. Devlin, The Enforcement of Morals (1965).
37. Report of the Committee on Homosexual Offences and Prostitution (1956; Cmnd. 247).
38. E. Durkheim, The Division of Labour in Society [1893] (1964).
39. K.T. Erikson, Wayward Puritans: A Study in the Sociology of Deviance (1966) 11.
40. I use the term 'heteronormative' throughout this paper to mean that which legitimetes and privileges heterosexuality as normal and foundational whilst marginalizing other sexualities es devient.
41. For example, R. Quinney, Class, State and Crime (1977).
42. C. Smart, Feminism and the Power of Law (1989).
43. See S. Cohen, Folk Devils and Moral Panics (2002, 3rd edn.).
44. See, also, S. Hall, C. ditcher, T. Jefferson, J. Clerke, B. Roberts, Policing the Crisis: Mugging, the State, and Law and Order (1978).
45. 644 H.L. Debs., col. 789 (13 February 2003).
46. 648 H.L. Debs., col. 577 (19 May 2003).
47. 644 H.L. Debs., col. 779 (13 February 2003).
48. 649 H.L. Debs., col. 69 (9 June 2003).
49. id., col. 66.
50. id., col. 71.
51. id., col. 72.
52. id., col. 74.
53. The Christian Institute, Sex Offences Review: Response by The Christian Institute (February 2001).
54. 648 H.L. Debs., col. 579 (19 May 2003).
55. 649 H.L. Debs., col. 67 (9 June 2003).
56. 414 H.C. Debs. col. 611 (3 November 2003).
57. 649 H.L. Debs., cols. 70-71 (9 June 2003).
58. 644 H.L. Debs., col. 789 (13 Feb 2003).
59. 649 H.L. Debs., col. 71 (9 June 2003).
60. L. Berlant, The Queen of America Goes to Washington City: Essays on Sex and Citizenship (1997).
61. The same use of the law to assert a conservative morality can be seen in the case of section 28 of the Local Government Act 1988. For a full discussion of the relationship between law, morality, and homosexuality in the formation of section 28, see A.M. Smith, New Right Discourse on Race and Sexuality: Britain 1968-1990(1994).
62. 648 H.L Debs., col. 585 (19 May 2003).
63. It is important to note, as Michael Warner argues, mat conservative homosexual individuals and groups have often supported the restriction and regulation of public sex. In mis sense, the regulation of homosexual public sex cannot always be seen amply as an expression of homophobia. See M. Warner, 'Zones of privacy' in What's Left of Theory? New Work on the Politics of Literary Theory, eds. J. Butler, J. Guillory, and K. Thomas (2000).
64. M. Phillips, 'Why should gap have me right to have public sex?' Sunday Times, 30 July 2000, 21.
65. Devlin, op. cit., n. 33.
66. The Christian Institute, Legalising sexual activity in public toilets: how the Sexual Offences Bill effectively legalizes a major public nuisance (2003).
67. Nowhere else in the criminal law is a specific context or place cited where consensual public sexual activity may or may not take place.
68. Werner, op. cit., n. 59.
69. 649 H.L. Debs., col. 68 (9 June 2003).
70. 644 H.L. Debs., col. 807 (13 February 2003).
71. id.
72. 649 H.L. Debs., col. 72 (9 June 2003).
73. 648 H.L. Debs., col. 582 (19 May 2003).
74. id.
75. There is now a diverse body of literature that focuses upon the spatiel construction of sexuality and sex. One of the key aspects of this literature is an attempt to understand how particular spaces end lendscapes are imprinted with culturally constructed ideas of sexuality which, in turn, come to shape the experiences of those within them (see, for example, D. Bell and G. Valentine (eds.), Mapping Desire: Geographies of Sexualities (1995)). One important element of this work has been the recognition that most 'everyday' public space is normalized es heterosexuel and precludes non-heterosexual displays of desire. Hubbard's recent work argues that most public spece is experienced by non-heterosexuals as 'aggressively heterosexuel' and that the function of such space is to enforce conformity to a heteronormative construction of citizenship -
76. see P. Hubbard, 'Desire/disgust: mapping the morel contours of heterosexuelity' (2000) 24 Progress in Human Geography 191-217;
77. P. Hubbard, 'Sex Zones: Intimacy, Citizenship and Public Space' (2001) 4 Sexualities 51-71.
78. For a full discussion of the ways in which heterosexual nerratives of love and intimacy structure sexuality and sexual conduct, see P. Johnson, Love, Heterosexuality and Society (2005).
79. This is not to suggest that all heterosexuel public sex fells within a normative narrative construction of romentic love end intimecy. One need only think of the recent medie coverage of 'dogging' (the practice of sexuel ectivities between heterosexual couples in parked cars witnessed by voyeurs) to see that such activity has attracted both morel outrage and condemnation. For a full discussion, see D. Bell, 'Bodies, Technologies, Speces: On "Dogging"' (2006) 9 Sexualities 387-407. However, it is interesting to note that when 'dogging' received high-profile coverage in the media, along with calls for a new law to reg-lete it, there was no suggestion by government of reformulating the principles outlined in Setting the Boundaries. Rather, the government restated that sexual activity in a public place would not be criminalized if it was sufficiently isoleted and unlikely to be witnessed. As an exemple of this, see the following BBC erticle in which Richerd Byrne, from the Rural Affairs and Environment Group at Harper Adems University College in Newport, Shropshire, makes the case that dogging operates at the 'fringes of legality and social acceptability': 〈http://news.bbc.co. uk/2/hi/health/3119024.stm〉.
80. L. Berland and M. Warner, 'Sex in Public' (1998) 24 Critical Inquiry 547-66, et 549.
81. D. Bell end J. Binnie, The Sexual Citizen: Queer Politics and Beyond (2000).
82. 414 H.C. Debs., col. 612 (3 November 2003).
83. Those found guilty of offences under Section 5 of the Public Order Act 1986 ere lieble on summery conviction to a fine but not a term of imprisonment.
84. Daily Express, 20 June 2002.
85. L. Humphreys, Tearoom Trade: Impersonal sex in public places (1970).
86. F.J. Desroches, 'Tearoom trade: A research updete' (1990) 13 Qualitative Sociology 39-61;
87. F.J. Desroches, 'Tearoom Trade: A law enforcement problem' (1991) 33 Cdn. J. of Crim. 1-21.
88. H. Bech, When Men Meet: Homosexuality and Modernity (1997).
89. LJ. Moran, The Homosexuality) of Law (1996).
90. Christian. Institute, op. cit., n. 62.
91. House of Commons Home Affairs Committee, Fifth Report, Sexual Offences Bill, HC (2002-03) 639, 15.
92. 649 H.L. Debs., col. 78-79 (9 June 2003).
93. Christian Institute, op. cit., n. 62.
94. 644 H.L. Debs., col. 779 (13 Feb 2003).
95. 649 H.L. Debs., col. 69 (9 June 2003).
96. Humphreys, op. cit., n. 79;
97. Desroches, op. cit., n. 80.
98. 649 H.L. Debs., col. 72 (9 June 2003).
99. Desroches, op. cit., n. 80.
100. 649 H.L. Debs., col. 72 (9 June 2003).
101. Moran, op. cit., n. 82, pp. 141-2.
102. M. Foucault, Discipline and Punish: The Birth of the Prison (1979).
103. D. Lyon, 'The Search for surveillance theories' in Theorizing Surveillance: The Panopticon and Beyond, ed. D. Lyon (2006).
104. This is obviously to allay any concerns within the 'gay community' that the offence is being used by the police to proactively single out the sexual activities of 'gay men'. Yet, such an assurance fails to recognize the complex reletionship between sexuel orientetion, sexuel practice, end social identity which means that men engaging in cottaging might not be 'gay men' who are, or not, part of e 'gey community', See n. 104 below.
105. Home Affairs Committee, op. cit., n. 84, p. 16.
106. ACPO, ACPO Guidance of the Policing of Public Sexual Activity (2000).
107. The distinction between 'genuine' and 'homophobic' complaints is not straightforward since homophobia may underwrite complaints about genuine incidents of sexual activities, See n. 101 below for an example of this.
108. N. Tilley, 'Introduction: Analysis for Crime Prevention' in Analysis for Crime Prevention, ed. N. Tilley (2002).
109. This description highlights the complexity of distinguishing between complaints that are 'genuine' and those motivated by homophobia. The quote begs the question why 'villagers' would be concerned about en 'isolated lay-by' which is 'nearby' but not in the village? If the physical location of the public lavatory is isolated from the village then the basis for the complaint is unlikely to be motivated by actual encounters between villagers and individuals using the lay-by for sexual activity.
110. Quoted in A. Leigh, T. Reed, end N. Tilley, Brit Pop II: Problem-orientated policing in practice (1998) 14.
111. D. McGhee, 'Beyond toleration: privacy, citizenship and sexuel minorities in England and Wales' (2003) 55 Brit. J. of Sociology 357-75.
112. Stephen Tomsen's recent work on the policing of homophobic violence shows that there is a tendency within policing, and public policy generally, to categorize men engaged in public sex as individual members of a vulnerable sexual minority of 'gey men'. Whilst it has long been known, Tomsen argues, that many men engaged in homosexual public sex do not self-identify as homosexual, and are not part of a wider LGTB community, the failure of current policy formulations to recognize this means that men who fall outside of the category 'gay' are increasingly marginalized. The same problem may be identified with regerd to partnerships formed between the police and LGTB groups for the purpose of policing cottaging. The effect of such an approach is the failure to recognize, and meaningfully engage with, many of the men participating in this activity. See S. Tomsen, 'Homophobic Violence, Cultural Essentialism and Shifting Sexuel Identities' (2006) 15 Social & Legal Studies 3 89-407.
113. 〈http://www.gayline.co.uk/〉.
114. The case contested the conviction of a male defendant for gross indecency following his prosecution, under the Sexuel Offences Act 1956, for engaging in sexual indecency with more than two mele persons present. Whilst the prosecution and conviction were in. accordence with the lew, the epplicent complained that this interfered with his right to privacy under Article 8 of the Europeen Convention on Human Rights. The government contended that such interference was necessary 'for the protection of morals and the rights and freedoms of others'. Whilst the European Court of Human Rights agreed with the government 'that, at some point, sexual activities can be carried out in such a menner that state interference may be justified', they ruled that where sexual activity takes place 'in circumstances in which it wes most unlikely thet others would become aware of what was going on' (in other words when such activities are 'genuinely "privete"') such interference is not proportionate or necessary in e democratic society. A.D.T. v. The United Kingdom, 31 July 2000, Judgment, Strasbourg (Application no. 35765/97).
115. See M. Foucault, 'Technologies of the Self in Technologies of the Self: A Seminar with Michel Foucault, eds. L.H. Martin, H. Gutman, and P.H. Hutton (1988).