Ordinary Folk and Cottaging: Law, Morality, and Public Sex
| Date | 01 December 2007 |
| DOI | http://doi.org/10.1111/j.1467-6478.2007.00403.x |
| Author | Paul Johnson |
| Published date | 01 December 2007 |
JOURNAL OF LAW AND SOCIETY
VOLUME 34, NUMBER 4, DECEMBER 2007
ISSN: 0263-323X, pp. 520±43
Ordinary Folk and Cottaging:
Law, Morality, and Public Sex
Paul Johnson*
The Sexual Offences Act 2003 introduced a new statutory offence of
`sexual activity in a public lavatory' into English law. Although
written as a gender-neutral offence, the statute was formulated and
enacted on the basis of concerns about male homosexual sexual
activity in public lavatories (`cottaging'). This paper examines the
justifications for, and implications of, the legislation. It considers the
main arguments made in support of the offence and situates these
within established moral, legal, and social debates about homo-
sexuality. The paper considers the relationship between conceptions of
public and private morality in relation to the legal regulation of
homosexual sex. It goes on to explore the complex nature of regulating
public sex in relation to sexual practices which often maintain high
degrees of privacy. The final part of the paper argues that the
legislation is largely in contradiction with the realities of police work
and contemporary law enforcement.
INTRODUCTION
The Sexual Offences Act 2003 introduced a new statutory offence of `sexual
activity in a public lavatory' (Section 71) into English law:
71 Sexual activity in a public lavatory
(1) A person commits an offence if ±
(a) he is in a lavatory to which the public or a section of the public has or
is permitted to have access, whether on payment or otherwise,
520
ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School. Published by Blackwell Publishing Ltd,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*Department of Sociology, University of Surrey, Guildford, Surrey GU2
7XH, England
p.johnson@surrey.ac.uk
Iamvery grateful to the editor and the four anonymous referees who read this paper and
provided insightful comments, observations, and corrections. My colleagues at the
University of Surrey were also helpful in discussing the issues raised here and I wish to
thank Ann Cronin, Nigel Fielding, Jo Moran-Ellis, and Roger Tarling.
(b) he intentionally engages in an activity, and,
(c) the activity is sexual.
(2) For the purposes of this section, an activity is sexual if a reasonable person
would, in all the circumstances but regardless of any person's purpose,
consider it to be sexual.
(3) A person guilty of an offence under this section is liable on summary
conviction, to imprisonment for a term not exceeding 6 months or a fine not
exceeding level 5 on the standard scale or both.
1
The Act makes it a criminal offence for a person to engage intentionally
in sexual activity in a lavatory to which the public or a section of the public
has access and on summary conviction carries the maximum penalty of a
term of imprisonment of six months. Section 71 creates a distinction between
the lawfulness of sexual activity in a public lavatory and sexual activity in
other public places. Public sexual activity is not illegal per se unless it causes
demonstrable offence to others. Such activity is punishable under the
common law
2
and by section 5 of the Public Order Act 1986 which covers
harassment, alarm, and distress resulting from threatening, abusive or
insulting behaviour.
3
Section 71, however, makes sexual activity in public
lavatories a criminal offence regardless of its potential or actual impact upon
the public.
Although section 71 is written as a gender-neutral offence it was enacted
on the basis of concerns about male sexual activity in public lavatories
(`cottaging'). Since the offence came into force, it has been used exclusively
to prosecute men. Between May and December 2004, 17 male defendants
were proceeded against, resulting in 15 guilty verdicts, whilst in 2005 a
further 46 males were prosecuted and 34 found guilty.
4
Between the offence
coming into force and the end of 2005, 28 males and one female had been
cautioned.
5
It is not possible to report national arrest statistics for section 71
since the offence is not included in the Home Office Counting Rules for
recording crime. Nevertheless, cautioning and prosecution data show that
521
1 The offence was brought into force in May 2004 by the Sexual Offences Act 2003
(Commencement) Order 2004.
2 Sexual activity in public places becomes an offence under the common law 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 Criminal
Justice Act 2003 s. 320 makes such an offence triable either way.
3Under s. 5 of the Public Order Act 1986 a person commits an 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, alarm or distress'.
4 Home Office Research Development Statistics (RDS) ± Office for Criminal Justice
Reform. Personal correspondence.
5 Home Office, id.
ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School
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