Observations on sex
Sex in a public toilet is not my idea of fun or good taste. But neither do I think it warrants being treated as a major sex crime. This was also the government's view when it introduced the Sexual Offences Bill earlier this year.
Section 74 proposed that sex in public places (including public toilets) would remain a criminal offence but would be prosecuted only if a person was "reckless" by having sex in circumstances where it was likely to be witnessed by an "unwilling" member of the public.
So sex in a locked toilet cubicle would not usually result in legal proceedings. Nor would sex in sex clubs or in saunas established for sexual purposes. The aim was to end arrests for victimless offences, while continuing to protect the public from behaviour it might find offensive.
Outraged Tory politicians claimed that it would result in orgies at the urinals. Instead of debunking these fantasies, the Home Secretary, David Blunkett, withdrew Section 74 in April. Two months later, Tory peers forced through a Lords amendment, Section 67. For the first time, it creates the specific offence of "sexual activity in a public lavatory". This could, according to a Home Office minister, include mere kissing.
Although at first they promised to overturn the clause in the Commons, minis-ters have become fervent proponents of Section 67. Blunkett told MPs: "No one wants any form of sex taking place in a toilet around them, inside a cubicle or outside it." He has failed, however, to explain why public order legislation and the common law offence of outraging public decency are adequate to deal with sex in the street but not sex in a public toilet.
The original Section 74 was genuinely non-discriminatory. It covered all sex in all public places. Section 67 reintroduces legislative homophobia by the back door. It criminalises what is predominantly gay male behaviour, while ignoring heterosexual trysts in lovers' lanes and motorway lay-bys. Although sex in a park or on a train is likely to cause more offence to more people, it is not covered by the new clause. The issue is not whether sex in public toilets is right or wrong, but why a mostly gay sexual activity is being singled out for special laws and penalties.
Ministers have belatedly cut the maximum sentence from two years to six months and/or a £5,000 fine. This is still a severe punishment for behaviour that is usually little more than a public nuisance. Section 67 is a charter for the resumption of police surveillance and entrapment.
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