The times they are a-changing. How odd that a hippy ballad from the sixties may yet turn out to be the theme for a government that is mostly conservative by nature — albeit tempered by the slightly more liberal instincts of, well, the Liberal Democrats. Change — in the shape of a great Repeal Act — is in the air.
The question, however, for readers of FIPA, must be whether that drive toward change is quite as radical, as fundamental as it claims on the label — and whether the Coalition is prepared to shine new light into areas that may be ever so slightly uncomfortable for your average Daily Mail reader.
We have just lost one of the most intrusive, regulating governments we have ever had when it comes to matters of sexual conduct. Sexual offences come and go. Common Law gives way to statute: and the House of Lords, in its wisdom, occasionally hands down rulings that change the topography of the sexual landscape forever. Thus, the gradually emerging — and welcome — legal consensus that a woman does not irrevocably hand her body over to her husband in marriage and that therefore a man may be convicted of raping his wife, is law that has evolved through a series of cases since the 1970’s, and is still evolving to this day.
Such gradualism was not for the Labour Party. No sooner arrived in power, then they set up the Sexual Offences Review Team (SORT) at the Home Office, charged with the fascinating task of carrying out a wide-ranging review of the law as it stood in respect of sexual offences.
At least, its authors would have considered it wide-ranging. Others have levelled a number of criticisms, of which two may have led to serious flaws in the review’s conclusions. First, for a panel that was charged with looking into an activity regularly practised by both genders, male voices were remarkably absent — or where they were present, only token. Irony, and maybe an occasional shout of “serves them right” from off-stage: but in the long run, probably not a good idea to base such a fundamental exercise on so gendered a viewpoint.
The second criticism, closely related to the first, is that this work was highly victim-oriented. Implicit in SORT was the notion that sex is something ‘done to’ people – or victims – and therefore a key question that the review needed to address, in many shapes and guises, was when and how an individual was entitled to withdraw consent.
In some circumstances, the ‘vileness’ of sexual activity was sufficient for the state to step in and remove consent on behalf of others. Thus, intimacy between individuals where familiarity, trust or familial relationship might be considered to create power imbalances were drawn within the law for the first time.
There was legislation of the Music Hall variety, too: neither bestiality nor necrophilia were technically unlawful prior to the passing of the Sexual Offences Act in 2003, although both common law and laws relating to animal cruelty had previously been considered able to provide some protection. On necrophilia, the consultation contains a passage seriously revealing of the underlying mindset: “utterly abhorrent” appears to be the consensus; and the fact that there is no evidence that necrophilia has ever actually happened in the UK was considered no reason for not passing a law to criminalise it.
SORT may have achieved a few useful things: it probably IS helpful that an individual found having intimate relations with a horse can be prosecuted for the actual crime committed, rather than through some trumped up charge based around cruelty. On the whole though, the review, and the legislation that followed, was the beginning of a tightening of the law in respect of sexuality that continued through a series of new laws passed in 2003 and beyond.
The Sexual Offences Act 2003 created the interesting situation whereby it is now legal for an individual aged 16 or 17 to have sexual relations – but possession of a picture of that perfectly lawful act could see you banged up as a paedophile. That same principle was extended in the Criminal Justice and Immigration Act of 2008, as possession of images of “extreme porn” were also criminalised. In this case, the acts that it is now dodgy to photograph are a mish-mash of the legal and unlawful. Bestiality and necrophilia (again!) are a no-no — as are sado-masochistic acts likely to prove life-threatening or harmful to breasts, anus or genitals.
Thus, as happened early in the noughties, an individual who was caught by his wife, in flagrante, having sex with a frozen chicken, might suffer the pain of divorce — not to mention serious and embarrassing frostbite: but anyone possessing a picture of said act might now be sent to prison. Logical? Hardly.
The down side of this law is that evidence suggests that, since its inception, it has been almost exclusively used to clamp down on those fond of collecting pics of animal-human goings-on — and scarcely at all to police human-human activity, as was originally intended.
This law was followed by the closing of another “loophole” (how Labour loved to talk of “loopholes”) making it illegal to possess cartoon images of sex with or in the presence of children. Not so much loophole as yet another extension of the law: the initial push towards policing of child abuse material was that every picture that fell into this category was a picture of a child being abused — and that those possessing it were complicit in promoting harm to children by supporting the market for such material.
No such excuse with the cartoon law, whose ‘participants’ are, by definition, non-existent. The loophole closed here was that the police appeared to dislike the idea of individuals somewhere getting off on such material, and so “there ought to be a law against it”.
This pictorial theme was continued and expanded through the earlier Safeguarding Vulnerable Groups Act, which allowed the government to regulate who might or might not work in jobs where they came into contact with children or vulnerable adults. Inappropriate behaviour in respect of pictures was one reason for losing a job: generally being the “sort of” person who statistical models said MIGHT turn out to be a sex offender was another.
Meanwhile, new laws were passed to clamp down on lap-dancing, and to prevent the problem of “trafficking” of prostitutes, despite serious and impressive analysis that suggested the latter problem was mostly urban myth. Strangely, the last government appears to have faced both ways on this issue, presenting sex work in all its forms, no matter how or where it takes place as a form of “violence against women” — yet time and time again sponsoring initiatives that have made life far less safe for sex workers.
Cynics have argued this is not wholly independent of another fine piece of legislation that allows the “proceeds of crime” to be repatriated to the local community. Nice idea — but the fact that a combination of moral majority policing and an eye for the easy collar has led many police forces to use this law on non-trafficked sex workers suggests this may have backfired a little.
Because, of course, one side-effect of all this clampdown is that those most in need of help have found sources of help drying up. Those involved in sado-masochistic activity now find there are fewer sites prepared to offer explicit advice on safety — just in case they get busted under extreme porn laws. Discussion of safe sexual pratices with adolescents is fraught with danger. Spaces where sex workers felt safer have also been steadily encroached upon.
In other words, a government obsessed with protecting victims has ended up doing the exact opposite. By believing that regulation and ever more draconian state intervention can do away with the ills of the world, government has progressively cut away all those places where self-help used to happen, making the sexual world a far, far more dangerous space than it ever was before.
So where, on the eve of a Repeal Act, does that leave us. Just tearing up large chunks of Labour law is appealing — but maybe not wholly sensible. What is really needed is a review of sexual offences (I feel a sense of déjà vu coming on!) that starts from a different premise.
Of course, the state needs to provide backing to those who are powerless and victimised: it needs to provide legal support to those who are not strong enough to stand up alone. But it also needs to recognise that adults are adults — and that sex is not, of itself, dangerous.
Where there are choices to be made, one question, certainly, lies around withdrawal of consent: another, equally valid question, lies around the extent to which it is legitimate for individuals to be allowed the right to consent (or not) as they see fit.
If individuals, by mutual consent, genuinely wish to rub butter on each other’s genitals, indulge in mutual spanking, or have sex with a frozen chicken, it probably is NOT the business of the state to get involved — in any way. Even (whisper this low) where said individuals do such things for gain. Because, I am told, butter-rubbing requires some degree of skill.
It would be nice if the Repeal Act threw out some of Labour’s more nonsensical laws on sex and sexuality: it would be nicer still if the government put sex to one side and took another look. This time, though, from the point of view that what is not seriously harmful or non-consensual is no business of the state to get involved in.
Over the next couple of months, I will be working with Consenting Adult Action Network — and other sexual advocacy groups — to put together not just a list of laws to be scrapped, but a white paper covering the entire ground, and seeking, for once, to put some coherence back into our sexual laws. If you’d like to know more — if you’d like to help — then just drop me a line.
Further information on the legal framework outlined above can be found in “Beyond the Circle” by Jane Fae (written under her previous name of John Ozimek), which can be found at www.caan.org.uk/beyond.html.
Information about Consenting Adult Action Network is at www.caan.org.uk.
