Rejection of a Higher Age of Consent for Homosexual Acts
Annotation
The European Commission on Human Rights was the vehicle by which individuals could appeal to the European Court of Human Rights, an arm of the Council of Europe and an organization committed to European integration. In 1994, in the context of a campaign by gay rights activists to have the British age of consent for homosexual acts set at the same level as the age for heterosexual acts, Euan Sutherland appealed to the Commission. He was not facing trial, but made his case on the basis that he feared prosecution due to evidence that the law was being enforced.
The Commission's decision, excerpted here, held that the unequal age of consent in British law was a breach of human rights. A Labor Government elected in 1997 agreed to amend the law, so the Commission stayed its decision. In 1998 and 1999, the House of Commons passed bills that were defeated in the House of Lords. When a third bill was defeated in 2000, the British government used the Parliament Act to override the House of Lords and enact an equal age. In a previous decision, the Commission endorsed the right of governments to legislate different ages. This excerpt highlights the background of growing tolerance and changing expert opinion that lay behind the argument that equal age was a human right.
This source is a part of the Sexuality, Marriage, and Age of Consent Laws, 1700-2000 teaching module.
Text
. . .[In] X v the United Kingdom (No. 7212/75 referred to above) the Commission found that an objective and reasonable justification existed for the different ages of consent, there being a realistic basis for the Government's opinion that, given the controversial and sensitive nature of the question involved, young men in the 18-21 bracket who were involved in homosexual relationships would be subject to substantial social pressures which could be harmful to their psychological development. . . .
The Commission, however, observes that its Report in X. v. the United Kingdom is now nearly 20 years old. While it is true that the views expressed in that Report have been subsequently repeated, it is also true that major changes have in the meantime occurred in professional opinions - particularly those of the medical profession - on the subject of the need for the protection of young male homosexuals and on the desirability of introducing an equal age of consent. . . . In particular, . . . the Council of the British Medical Association (BMA), which in 1981 gave evidence to the Policy Advisory Committee that boys and girls of the same age did not possess the same degree of emotional and psychological maturity, observed in 1994 that most researchers now believed that sexual orientation was usually established before the age of puberty in both boys and girls and referred to evidence that reducing the age of consent would be unlikely to affect the majority of men engaging in homosexual activity, either in general or within specific age groups. The BMA Council concluded in its Report that the age of consent for homosexual men should be set at 16 since the then existing law might inhibit efforts to improve the sexual health of young homosexual and bisexual men. . . .
Two such principal arguments emerge from the speeches in Parliament and are adopted and repeated in the Government's submissions. In the first place it is argued that certain young men between the ages of 16 and 18 do not have a settled sexual orientation and that the aim of the law is to protect such vulnerable young men from activities which will result in considerable social pressures and isolation which their lack of maturity might cause them later to repent: it is claimed that the possibility of criminal sanctions against persons aged 16 or 17 is likely to have a deterrent effect and give the individual time to make up his mind. Secondly, it is argued that society is entitled to indicate its disapproval of homosexual conduct and its preference that children follow a heterosexual way of life.
The Commission does not consider that either argument offers a reasonable and objective justification for maintaining a different age of consent for homosexual and heterosexual acts or that maintaining such a differential age is proportionate to any legitimate aim served thereby. As to the former argument, as was conceded in the Parliamentary debates, current medical opinion is to the effect that sexual orientation is fixed in both sexes by the age of 16 and that men aged 16-21 are not in need of special protection because of the risk of their being "recruited" into homosexuality. . . .
As to the second ground relied on - society's claimed entitlement to indicate disapproval of homosexual conduct and its preference for a heterosexual lifestyle - the Commission cannot accept that this could in any event constitute an objective or reasonable justification for inequality of treatment under the criminal law. . . .
Consequently, the Commission finds that no objective and reasonable justification exists for the maintenance of a higher minimum age of consent to male homosexual, than to heterosexual, acts. . . .
Credits
"Report of the European Commission on Human Rights, Euan Sutherland against the United Kingdom (1997)," European Court of Human Rights (accessed November 28, 2007), 58–66. Annotated by Stephen Robertson.