This Age of Discrimination
20 February 1990
Throughout its recent leader "Homosexual Politics", The Times misuses the crucial word. Let us be clear. 'Homosexual" can refer to either gender. But the age of consent at issue concerns only gay men. Lesbians, in that regard it least, have always had parity with heterosexuals.
The misuse is significant. Homosexuality has for so long been taboo in Britain, and homosexuals have for so long been encouraged not to declare themselves, that rational discussion about us is often difficult. On all sides, feelings are high. So they should be, whenever a minority is discriminated against by the law.
However, the careless vocabulary in the Times leader is much less worrying than the confused arguments with which the paper seeks to defend the legal inequality that applies to gay men under the age of 21.
Consider the view that treating gay men under 21 equally with heterosexuals would signify "that society had finally adopted the view that homosexuality and heterosexuality should be regarded in all respects as equal". If this means that Parliament should not attempt to change society's attitudes, I beg to differ. And so did Parliament itself when it abolished capital punishment or, in advance of public opinion, passed laws about equal opportunities and race relations.
But the use of "equal" in comparing homosexuals and heterosexuals is lax. In what sense am I, a gay man, unequal to a heterosexual man of, say, my age, height, colouring, nationality? We may differ in every comer of our experience, as well as our sexuality. Our sexuality will contribute to our differing home lives, our differing tastes and manners. But on what grounds can these considerable differences justify laws that treat us as unequal?
The role of the criminal law in the sexual field was defined by the Wolfenden Committee in 1957: "to preserve public order and decency, to protect the citizen from what is offensive and injurious and to provide safeguards against exploitation and corruption of others, particularly the young, weak and inexperienced and those in a state of special physical, official or economic dependence". That is why there are adequate legal safeguards against assault and against abuse of those in care and the mentally ill.
When the 1967 Act, based on Wolfenden, legalized private love-making between consenting males, the age of consent was fixed at the age of majority, then 21. So, by any judgement other than the asinine, the age of consent should by now at least have been reduced to 18, the current age of majority. This was the recommendation of the Criminal Law Revision Committee in 1984.
But The Times argues that the law should remain unequal because male adolescents go through a "homosexual stage". Wolfenden and all subsequent investigations disagree. They accept that basic sexual orientation is fixed by the age of 16. Where is the evidence that patterns of sexual behaviour affect that basic orientation? The Times mentions boarding schools. Is Parliament to base law on on the inability of headmasters to monitor their dormitories? If so, in these days of mixed boarding schools, will The Times soon recommend raising the age of consenting heterosexuals?
Most European countries have equal ages of consent. In Holland, Greece, Italy, Norway, Spain and West Germany the age is 16. In Denmark, France, Poland and Sweden it is 15. Last year in East Germany the age of consent for homosexuals was harmonized with that for heterosexuals at 14. When Britain eventually learns from European experience, we should follow those many countries which recognize the special offence of seducing a minor (of either sex) by deceit, gifts, promises or abuse of influence.
In the meantime, this is the only country in Western Europe which prosecutes males between 16 and 21 for consensual lovemaking, and even imprisons a number each year. Are young British males peculiarly impressionable compared with their European counterparts?
If they are, what about young British females, lesbian or heterosexual, who are free at 16 to make love as they please?
Still The Times asserts that there are good reasons why the age of consent should be left as it is, reflecting understandable fears about the spread of AIDS. This fails to acknowledge that no group in our population is more responsible in the practice and promotion of safer sex than gay men.
There is one overriding good reason why the age of consent should not be left as it is: equality under the law. Gay men do not expect special treatment, but if they are between 16 and 21, they suffer it.