In order to critically evaluate the law pertaining to the range of public sex environments we must first understand it and examine it closely. Incidents of sexual behaviour in public places present a continuing challenge to the police. Social views related to sex and sexuality are distinguished between different cultures and different times. The term public sex often refers to the partaking of sexual activities outside of a private and secretive location and not necessarily if it is strictly speaking; a public area.
The Sexual Offences Act 2003 provides a clear, modern framework to protect the public from sexual crimes. It also defines what’s acceptable when it comes to ‘unusual’ sexual tastes. It was introduced as law in May 2004.
The Sexual Offences Act however doesn’t legislate specifically against the practice of public sex. There are Public order offences that exist to guard against outraging taste but permits sex in an isolated place so long as you have a reasonable expectation of privacy.
However it is critical to investigate the old law before understanding the new law. Prior to the 2003 act there were two pieces of legislation that defined the sexual offence cottaging: the Sexual Offences Acts of 1956 and 1967. The 1956 made it illegal for two men to engage in sexual intercourse but was often documented and viewed as being in response to high-profile sex scandal stories of the 50s (Ashford 2007). Needless to say this was repealed by the 2003 act.
The 1967 act ended the criminalisation of homosexuality however at the same time it was not legalised. Homosexuality was ‘permitted in private’ under section 1 of the act. Again the law does not seem to know where it stands in relation to these so called ‘offences’ and the dividing of the sexuality is still a much debated topic.
Under Section 13 of the Sexual Offences Act 1956:
‘‘It is an offence for a man to commit an act of gross indecency with another man, whether in public or private, or to be party to the commission by a man of an act of gross indecency with another man, or to procure the commission by a man of an act of gross indecency with another man.”
The Prosecution must show that the man towards which the act is directed ‘willingly participated and co-operated in the indecent exhibition and that there need not be physical contact to constitute gross indecency: as in Hunt v Badsey (1950).
And in order to understand how the laws pertaining to the public sex environments are viewed by queer theorists we also must understand queer theory. Queer theorists do not like to admit to a definition. To make a definition, you have to draw a line, and that might exclude a view or an expression, a belief, a view – to have an open mind is essential in the belief of queer theorists.
Areas of public space become subject to transient ownership with public parks, isolated car parks and public toilets being re-designated queer spaces. (Betsky, 1997). Since 1967 there has been a general ‘progression’ in policy directed towards homosexuals in England and Wales. From the Sexual Offences Act 1967 through to, more recently, the Equality Act 2006 and the Equality Act (Sexual Orientation) Regulations 2007, there has been a gradual acceptance in law of both homosexual acts and homosexual identity (Ashford 2007).
Cottaging is the act of seeking out sexual encounters in public conveniences by men with other men. The 2003 act was originally portrayed to a relaxation in the law towards cottaging however when the final bill was passed it was far from ground breaking and since the passing of the legislation, cottaging continues and so too does police involvement.
What most would consider a taboo subject and something that should not be allowed to happen within the laws of this country, and many other countries to boot, Queer Theorists will speak openly and freely – and they would not shun or condone such acts but describe them as public expressions of sexuality.
In Rose v DPP a man was caught on CCTV engaging in oral sex with his partner in the foyer of a bank. This would lead a queer theorist to ask is oral sex in a public place illegal? No one witnessed the intimacy, but unfortunately the bank manager viewed CCTV footage and the police were called. The local magistrate found that the bank manager was a witness to the act, and that it would also have been possible for a passerby to have witnessed the act and therefore the offence had been committed.
This is a common law offence of “outraging public decency” and can be applied to cottaging, dogging and cruising for sex by gay men. However the High Court allowed Mr. Rose’s appeal and quashed the conviction on the basis that such offence had to be witnessed, and that there had to be others actually present who could see the act. The idea of a bystander was insufficient and the offence required publicity and there had to have been more than one person in a position to actually see the act.
The court further doubted whether the bank manager was a “witness” as they had viewed the footage after the incident had occurred, with the claims that the offence was committed in the public and in the presence of the public. If the manager was a witness, the courts would then have to establish when the offence was completed – when the act was performed, or when it was viewed on the CCTV footage?
The case is legally important as it clarifies the elements of this common law offence, which were somewhat open to much interpretation by modern authorities, and appeared to have been watered down which effectively brought the common law in line with the statutory provisions contained in ss. 66 and 67 of the Sexual Offences Act 2003 dealing with exposure and voyeurism.
The practical effect of the decision is that intimacy by consenting partners is not criminal unless done in public eye of two or more members of the public. And of those two members at least one of must witness the act. If done to cause alarm or distress to others the same law applies.
The justification of a separate offence specifically targeted at public toilets as outlined in section 71 of the Sexual Offences Act 2003, when other public spaces are not subject to specific offences, remains a topic of much debate within Criminal Law. Queer theorists would also argue that this is strange and also unfair – how can one place be deemed a public space, and yet another area remains un-categorised.
In Laskey, Jaggard and Brown v United Kingdom the applicants were found in possession of video films depicting sado-masochistic and homosexual activities. They were charged with offences based on these videos – however the videos all involved consenting adults which were filmed in private rooms built for a particular purpose.
The applicants claimed their acts were permitted Article 8 of the Human Rights Convention. The European Court of Human Rights ruled that the presence of “a significant degree of injury or wounding” distinguished the case from previous cases dealing with “consensual homosexual behaviour in private between adults” so he prosecution was appropriate to ‘safeguard’ public health.
However in the same case a precedent was set that can be applied to cottaging – in that where an individual is cottaging, the involvement of an unwilling spectator is irrelevant. Rather the law assumes a public policy argument that the act is wrong per se and thus the cases that have been reported involve the police deploying observational or agent provocateur tactics (Ashford 2007).
Cottaging has been happening since Victorian times and will continue to do so – however the internet and new found technology has made it harder to “monitor” if you will. It has become more shrouded in mystery and more of a taboo subject – strange in such a modernised world where we can ‘get anything we want’. Thus with the technological advances of our era there is also the shift in ‘real world policing’ (O’Brien & Ashford 2006).
The aim of the law has long been to criminalise these acts of public expression or to stop them. The simple fact that these activities have been and still are ongoing on a regular basis would seem to suggest that the law and the legislation has failed to achieve these goals.
Laud Humphreys was the first to explore the phenomenon in his thesis which in turn led to more studies into the activities of cottaging and cruising – however they did and still do remain few in number. Humphreys study was viewed as controversial and portrayed cottaging as ‘ritualistic’ in nature as to appear ‘legitimate’ in using public space (Delph 1978).
Humphrey’s described the actions as a game like routine in which willing participants will engage in in order to ascertain other willing participants. Thus what seems like an average daily routine to the ordinary member of the public – may in fact be part of the ‘ritual’ used to engage in public sex. However it does allow for extra ‘protection’ and limits the possibility of someone being inadvertently approached or coming upon a scene they did not wish to witness (Humphreys 2005).
The idea of the ritualistic nature however is crucial in the attempts of the law to criminalise the act. The performance of the rituals shows that the acts are not designed to affect any ‘innocent’ members of the public – but instead to protect those wishing to partake and make sure that others are safe guarded.
Thus when the law traditionally tries to reflect the potential moral harms created by the public expressions of sexual activities – it can still be classed as private because the ritual is required for the concerning parties to take part.
Although the location may be deemed ‘public’ the act itself requires the co-operation of one or more parties and therefore can be characterised as private in more ways than one.
If the act takes place in what would be described as a public toilet – what becomes of the definition when it occurs in a locked cubicle of a ‘public’ area? Queer theorists would argue that when the door becomes locked it becomes a ‘private space’ and therefore becomes a private act between consenting adults.
The act may also take place in two adjacent cubicles with a hole in the partition wall which would allow for more sexual interaction. Again these are public toilets however behind two closed door cubicles which in theory would make the area ‘private’.
A study into the behavioural factors of men partaking in public sex in toilets in England found that there were three main factors in the reasoning (Church, Green, Vearnal 1993):
- Enjoying the activity
- The thrill
- And the anonymity
They also discovered that one of the least motivations for men was the need to find a long term partner. Thus proving that for the ‘real world policing’ to be effective there must be a clear and researched understanding of the motivational and behavioural factors that make people partake in these ‘public’ displays of sexual activity. Once an understanding has been achieved it would allow for an effective and fair law into the area of sexual offences which for so long has been void and alienated in the jurisdiction and fairness of the law.
Queer theorists will argue that the current criminal law does not police or govern these activities – instead it controls the enjoyment achieved from performing the acts. Much like doing drugs or graffiti vandalism where the rush and thrill can be the lure for most people – these acts are seen as enjoyable for the individual, but may result in a greater harm for society.
The arguments of public space and public sex will continue until the law establishes a clear and reasonable base layer to apply the legislation too. For example a public toilet on a beach will be busy and used frequently on a summer’s day in June, but not so much late on a December night in the wind and rain. In R v Reakes the judge directed as to privacy:
“You look at all the surrounding circumstances, the time of night, the nature of the place including such matters as lighting and you consider further the likelihood of a third person coming upon the scene”.
On appeal the defendant’s definition of privacy was upheld as it was unlikely that the surrounding area would be occupied or disturbed at such a late hour in darkness. The court held that privacy cannot be subjective and that regard can only be had to the moment when the act took place – therefore all the circumstances have to be looked at and considered.
The direction appears to concede that the public or private nature of a place can vary from time to time. The same act done in a public bar or public library can be described as private had all the patrons left the premises and the doors were locked which would leave only the two participants that are present.
In conclusion the attempts to criminalise public sexual encounters have failed in stopping the partaking of sex in public places. Sex is still a taboo subject in many cultures and narrow minded people – let alone the acceptance of homosexual relations and partaking in public sex.
The undefined acts and legislation have lead to various attempts at policing the cruising and cottaging scenes – however with no set definitions or guidelines the public cannot expect to be ‘protected’ if they cannot define what they need protecting from.
What has been made clear is that cottaging and public sex has been around a lot longer than most of us – and will more than likely continue to outlive us. The Sexual Offences Act 2003 has simply not provided the changes that are needed – not so much for public protection but for the sense of confusion that now lingers like a storm cloud over the subject.