British age-of-consent laws used to target gay people

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By: Peter Tatchell

About 140 men were imprisoned for consensual gay relations with boys aged 13 to 16 in England and Wales during 1989. Typical sentences ranged from three to ten years. These sentences were, on average, three-and-a-half times longer than sentences for comparable heterosexual acts with girls in the same age range. These startling facts are revealed in new analyses of data contained in the official government publication, Criminal Statistics, England and Wales, 1989. (That year is the latest for which data are available. The figures cited are either official Home Office Statistics, or informal estimates based on calculations from those figures.) The number of men imprisoned that year for consenting sex with 13-to-16-year-old males is around 140. The exact number is impossible to determine because Home Office statistics do not give a precise breakdown. Among people jailed for gay-related offences in 1989 were 23 teenagers. For the offence of buggery, 11 of these under-21 year olds received sentences from one to seven years (the longer sentences may have been for sexual assault or sex with young children). Twelve teenagers were convicted of soliciting, indecency, and procuring. Seven of them were given terms of six to 18 months custody in young offenders' institutions. Judging from these figures, it seems the age-of-consent laws exist more to police teenagers and control their sexuality, rather than to protect them, as the government is so fond of claiming.

How does the Home Office explain the large number of men coming into conflict with the law for consensual gay sex? Its official publication, Criminal Statistics, England and Wales, 1989, suggests that the rising number of sex offences "against or between males" can be partly explained by "the growing awareness and concern about child abuse, leading to increased reporting of these offences or to increased efforts by the police to deal with them." This equation of gay sex with child abuse is both offensive and untrue. In 1989, there were 3,065 convictions for the mainly consenting offences of soliciting, buggery, procuring, and indecency (including an estimated 500 convictions for indecency under by-laws, public order legislation and common law). The overwhelming majority of these convictions relate to entirely victimless behavior between men over the age of 21. Only about 220 of these offences (seven percent of the total) involved sexual relations with people under 16. Even then, it is believed that most of the participants were aged 13 to 16 and took part willingly. The attitude of England's legal system to sex with 13-to-16-year-olds is dismissive and rigid: "The law does not regard such behavior as being consensual, even if those who participate do so voluntarily," says the Home Office. "In law, a person under 16 is deemed incapable of giving their consent."

Though this legal ruling applies to all sexual acts with people under 16 years of age, it is enforced much less harshly against heterosexuals. Compared with age of consent violations by gay men, underage heterosexual sex is more likely to result in a warning or a caution, rather than a prosecution. Of the 2,471 offences of "unlawful sexual intercourse with a girl under 16" in 1989, 45% resulted in a caution. Cautions were also given for 27% of 300 offences of "unlawful sexual intercourse with a girls under 13." However, in the case of the nearest equivalent homosexual offence involving sex with young boys under 16 - buggery - only seven per cent of the 1,138 offences in that year were dealt with by means of a caution (about 70% if buggery offences are thought to involve consenting gay sex with 13 to 16-year-old males).

When heterosexual men get prosecuted for consensual sex with 13-to-16-year-old girls, the charge is usually "unlawful sexual intercourse with a girl under 16," which carries a maximum sentence of two years. For gay men taken to court for consenting sex with teenage boys aged 13 to 16, the charge is normally "buggery" (maximum sentence life imprisonment), "gross indecency" (maximum sentence five years) or "indecent assault on a man" (maximum sentence ten years). The law is clearly biased against gay offences; prescribing much more severe punishments than for equivalent heterosexual behavior. Furthermore, the charge of "indecent assault" is often laid against gay men for wholly consensual sex with 13-to-16-year-olds on the grounds that the law does not recognize people under the age of 16 as being capable of giving their consent. However, similar charges of "indecent assault" are relatively rarely pressed against heterosexual men involved in consenting behavior with teenage girls in the same age range.

So far as sentencing policy is concerned: heterosexuals who end up with a conviction for sex with youngsters in their early teens are less likely to be imprisoned than homosexuals who commit similar offences. More often they get suspended sentences, fines, probation, and community service orders. In 1989, only 60% of men convicted of "unlawful sexual intercourse" with girls aged 13 to 16 were imprisoned. In contrast, 76% of those found guilty of "buggery" were sent to jail. (An estimated 70% of buggery convictions relate to consensual gay sex with boys aged 13 to 16). This bias is even more startling when looked at in terms of the ratios of offences to convictions and imprisonments:

  • While as few as 11% of offences of "unlawful sexual intercourse" with girls between 13 and 16 led to convictions, twice that number of "buggery" offences (22%) resulted in convictions.
  • Only 3% of offenses of "unlawful sexual intercourse with a girl under 16" resulted in jail sentences, compared with 17% of "buggery" offences (a 566% higher imprisonment rate for an offense which mainly involves consenting gay sex with males in their early teens).

When it comes to lengths of imprisonment, men convicted of consensual buggery with 13-to-16-year-old boys tend to receive sentences three-and-a-half times longer than men who are convicted of consenting sex with 13-to-16-year-old girls. The average jail sentence of homosexual intercourse with a male teenager in this age range is three to four years, whereas for heterosexual intercourse with a girl in the same age bracket is only nine to 12 months. Even if such behavior should continue to be an offence, two questions still remain: Why is homosexual sex with 13-to-16-year-olds punished much more severely than its heterosexual equivalents? Is prison the most appropriate way of dealing with men who have sex with young people?

source: Article 'New Report Shows Homophobia Rampant in UK Man/Boy Sex Cases - British age-of-consent laws used to target gay people' by Peter Tatchell; Capital Gay; Reprinted in NAMBLA Bulletin, Vol. 12, No. 9-10; November/December 1991; Article in Capital Gay from: 19 July 1991