OPINION: The legal journey to an equal age of consent in the UK

by Paul Johnson | University of York
Friday, 27 November 2020 09:16 GMT

FILE PHOTO: Peter Tatchell joins British gay rights activists to demonstrate outside the Houses of Parliament, London June 22, 1998. CREDIT: Reuters

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It took from 1967 to 2009 to equalise the age of consent at 16 for everyone across the UK

Paul Johnson is professor and head of the department of sociology at the University of York

The Sexual Offences Act 1967 partially decriminalised “homosexual acts” – “buggery” and “gross indecency” – in England and Wales between two consenting males in private of or over 21 years of age. The minimum age of 21 for gay sex was proposed by the “Wolfenden Report”, published in 1957 which looked into “homosexual offences and prostitution” and reflected the then age of majority.

The minimum age for heterosexual acts in England and Wales (other than buggery, which remained criminalised) was 16. Lesbian sex was not specifically regulated by English criminal law, but a minimum age of 16 existed by virtue of the offence of indecent assault on a woman. Gay sex remained criminalised in Northern Ireland and Scotland.

In 1975, a man who was imprisoned became the first person to complain to the (now abolished) European Commission of Human Rights about the higher age of consent for gay sex in England and Wales. The man complained that, because of a relationship with an 18-year-old man when he was 26, he had been prosecuted for the offence of buggery and sentenced to two-and-a-half years in prison.

The Commission decided that fixing the minimum age of consent for gay sex at 21 was justified to protect the rights of others – namely younger men under 21 – and did not violate the European Convention on Human Rights (ECHR).

In 1977, the House of Lords decisively rejected the Sexual Offences (Amendment) Bill that proposed a reduction in the age of consent for male same-sex acts in England and Wales from 21 to 18 years.

The Criminal Justice (Scotland) Act 1980 partially decriminalised gay sex in Scotland, in similar terms to England and Wales (although in Scotland “sodomy” rather than “buggery” was an offence) with a minimum age of 21. Similarly, the Homosexual Offences (Northern Ireland) Order 1982 partially decriminalised male same-sex acts in Northern Ireland with a minimum age of 21.

The law reform in Northern Ireland was impelled by the judgment of the European Court of Human Rights in 1981, in respect of a case brought by Jeffrey Dudgeon, which determined that the complete criminalisation of gay sex violated the ECHR but that maintaining a higher age of consent did not.

In the Court’s view, there was a “legitimate necessity” for “some degree of control over homosexual conduct notably in order to provide safeguards against the exploitation and corruption of those who are specially vulnerable by reason, for example, of their youth”.

In 1982, Richard Desmond became the first man younger than the minimum age of consent for gay sex in England and Wales to challenge the higher age of consent using the ECHR. The Commission confirmed that the UK had the discretion under the ECHR to “fix the age under which young people should have the protection of the criminal law” and dismissed Mr Desmond’s complaint.

In 1993, three men – Hugo Greenhalgh (editor of Openly), William Parry and Ralph Wilde – complained to the Commission that the UK had “the highest homosexual age of consent in Europe”. This complaint, one aspect of a much wider political campaign by Stonewall, played an important role in motivating a debate in the UK Parliament that resulted in the Criminal Justice and Public Order Act 1994 reducing the minimum age of consent for gay sex to 18 across the UK.

In 1994, Euan Sutherland, a 17-year-old, complained to the Commission about the higher age of consent. In 1997, for the first time, the Commission found that maintaining it amounted to discrimination in violation of the ECHR.

The Commission’s findings encouraged the UK Parliament to equalise the minimum age for same-sex and different-sex sexual acts, in order to avoid an adverse judgment of the European Court of Human Rights. This was a contentious legislative process that required the use of the Parliament Acts to enact the Sexual Offences (Amendment) Act 2000.

As a consequence of the 2000 Act, the minimum age for gay sex was reduced to 16 in England and Wales, and Scotland, and to 17 in Northern Ireland (the then minimum age for heterosexual acts, other than buggery which remained criminalised).

Between 2003 and 2009, the offences of buggery/sodomy and gross indecency were abolished and a common age of consent of 16 was established across the UK.


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