The tricky business of policing sex in public

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shadow of people kissing on grassImage source, Thinkstock

Once any kind of sex in public might have led to arrest and prosecution. Now police across much of the UK take a softly-softly approach, writes Julie Bindel.

Decades ago, the police in the UK did their utmost to stop gay men having sex in public toilets and outdoor "cruising grounds". Men were frequently arrested, prosecuted and often jailed.

Today much has changed and the police take advice on "sensitivity and fairness" in dealing with those who have sex in public places.

A Freedom of Information request, submitted last year, revealed specific guidelines, published in 2009 by the Association of Chief Police Officers (Acpo) on the policing of sex in public. The issue is significant enough for police that they use a standard term - Public Sex Environments (PSE).

And indeed public sex has been on the agenda in Britain since at least the late 1600s, according to some accounts. In the decades prior to the Sexual Offences Act 1967, gay men rarely "came out". Cruising was one way that - albeit with a fairly high level of risk of persecution - men could meet other men in a way they could not in ordinary life.

Image source, ALAMY
Image caption,
Hampstead Heath in north London is a very well-known cruising ground

Sir John Gielgud was arrested for "importuning" in 1953 in Chelsea, and Peter Dudley, an actor in Coronation Street, was arrested in 1981 in a toilet in Didsbury. The singer George Michael, famously arrested after an incident a Los Angeles public toilet, has said he has no shame about engaging in cruising.

Almost 50 years after the decriminalisation of gay sex in the UK, cruising is still popular.

Definitive stats are difficult to come by, but anecdotally at least, the British do not seem to be that squeamish about outdoor sex, and it appears to be more commonplace than one might think. In general terms, the police now only tend to get involved when bystanders complain.

The issue doesn't just affect gay people. For centuries heterosexual couples have had sex in secluded spots, often referred to as "Lovers' Lanes", seeking privacy unavailable at home.

And a decade ago footballer Stan Collymore admitted to "dogging" - having sex in a public place watched by onlookers - in a Cannock Chase country park, having been spotted by tabloid journalists. It placed in the public consciousness a hitherto shadowy subculture.

In a shift from the previous legislation and police practice, which focused only on sex between men in public toilets (commonly known as "cottaging") the latest guidance makes reference to sex by a wider variety of people, and includes dogging, sex in parks, beaches, and beauty spots.

Offences that could be committed in a 'public sex environment'

  • Outraging public decency contrary to common law
  • Behaviour that is likely to cause harassment, alarm or distress to other users contrary to the Public Order Act 1986
  • Offences of exposure - if the person exposes themselves to someone intending that someone will see them and be caused alarm or distress
  • Sex in a public toilet (Section 71, Sexual Offences Act, 2003)
  • The above applies to England and Wales although there are some similar provisions in Scotland and Northern Ireland

It's a complicated issue. Outdoor sex in the middle of a forest is clearly at the other end of the spectrum from sex on a crowded beach. But both can be interpreted as sex in public places.

The Acpo guidance focuses on those who stumble across it as well as those that indulge in it. "The Metropolitan Police Service (MPS)… is committed to making PSEs safer for both users and those who happen upon them when going about their daily business."

PSEs can be dangerous places where rape, serious sexual offences, serious assaults and robbery take place and go unreported. Sites used exclusively by men - such as public toilets - have historically been policed differently to cruising and dogging sites, aided by a different set of legal rules. Police action has often been triggered by public concern.

"PSEs are complex environments and the use of them for sexual activity is an emotive issue, which is more often than not exacerbated by negative stereotypes and prejudicial views," reads the guidance.

"It is our responsibility (with our partners) to make such places safe places for all users, and prevent and detect crimes. It is not our role to act as moral arbiters; we must enforce the law proportionately, firmly, fairly and in an even-handed way."

Image source, ALAMY

Also taking a softly-softly approach to public sex is Brighton council, which recently received a number of complaints over cruising in Dukes Mount park. Officials reportedly suggested that The Greenery, a notorious gay cruising spot in the park should allow bushes to grow between 15ft and 20ft tall to afford privacy to outdoor fornicators.

For those public sex environments outside of public lavatories, the common law and statute law is usually only concerned with those situations where a member of the public is likely to chance upon public sex and be alarmed or distressed by what they see.

But most dogging and cruising areas are deliberately chosen to avoid passers-by - thus they should in theory amount to lawful activity.

Chris Ashford, professor of law and society at Northumbria University is currently working on a book exploring the law's relationship with the public sex, entitled Public Sex and the Law: Silent Desire. There are, found Ashford, significant differences in the approach to policing public sex in different parts of the country.

More information

"Public sex is a historical phenomenon, with variances of behaviour occurring around the globe. This is particularly the case for male and male sexual encounters," says Ashford. "Cottaging, for example, has particularly been regarded as a 'gay' problem. The law that regulates sex in toilets (section 71 of the Sexual Offences Act 2003) was originally stated in the Sexual Offences Act 1967. The very section of the act that effectively 'legalised' homosexuality also contained the provision that criminalised sex in public lavatories."

The current police guidelines, at least in regards to cottaging, have moved from a punitive approach to one that deals sensitively with a much-maligned community. "We must acknowledge the negative impact on LGBT people's trust and confidence in us if we act in a parochial and ill-judged way," say the Acpo guidelines.

Dan Bunker, a gay activist who offers training to public bodies on LGBT equality and diversity, says that cruising and cottaging has long been a "huge part" of gay culture. "Working for a helpline service I was overwhelmed by the number of married men who called wanting to know where to go to get their kicks."

According to Ashford, police have to strike a balance between devoting resources to policing isolated locations at which unwilling bystanders might witness public sex with responding to public concerns.

The right to have outdoor sexual activity has been interpreted as being enshrined in article eight of the Human Rights Act (right to respect for private and family life), as long as those activities are not liable to breach the rights of others.

But police are certainly not turning a blind eye to public sex. In June, police warned people indulging in such activities at a beauty spot by the Menai Strait commonly used by walkers to stop off and stretch their legs.

Despite the attention now paid to getting it right, the police will always have a difficult job on their hands balancing the rights of people to have sex with the rights of passers-by not to be shocked.

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