JURIST Columnist Paul Johnson, Anniversary Reader at the University of York, in the second of two pieces on laws pertaining to homosexual acts in the Dependencies of the UK, argues that male, homosexual-specific criminal offenses in Isle of Man should be modernized to parallel the laws of the UK…

In a recent JURIST piece, I outlined how Guernsey, unlike the United Kingdom (UK), retains specific male homosexual offenses in its criminal law. In this article I further explore the law of another Crown dependency, the Isle of Man. In contrast to the UK, which repealed all adult male homosexual offenses through the Sexual Offences Act 2003 and the Sexual Offences (Scotland) Act 2009, the Isle of Man has retained specific criminal provisions relating to male homosexual sex. Although the Isle of Man lowered the minimum age for homosexual acts to 16 in 2006, thus equalizing the “age of consent” with that of heterosexual acts, it has not repealed laws that specifically criminalize sexual acts between men. Although the Isle of Man has since enacted the Civil Partnership Act 2011 [PDF], which allows same-sex couples to register their relationship and gain legal rights equal to marriage, it continues to single out adult male homosexual sex with special legal regulation.

The Isle of Man is a Crown dependency and is not constitutionally part of the UK. As a Crown dependency, it passes its own primary legislation which receives royal assent directly from the British Crown rather than from the UK Parliament. The Isle of Man is not, therefore, ordinarily subject to UK law such as, for example, the UK Human Rights Act 1998. However, the Isle of Man is contracted with the European Convention on Human Rights (ECHR) [PDF] through its relationship with the UK and has also incorporated the ECHR into its domestic law through The Human Rights Act 2001 [PDF].

Given the close relationship between the Isle of Man and the UK, as well as the Isle of Man’s domestic commitment to human rights, it is worth considering the continued existence of criminal law that relates only to homosexual sex between male adults.

Law in the Isle of Man

Section 9 of the Sexual Offences Act 1992 contains a number of provisions relating to “unnatural offenses” between men. Sections 9(1) and 9(4) respectively criminalize “buggery” and “gross indecency” between men if both parties have not attained the age of 16 or if the acts are committed “elsewhere than in private.” Section 10(1) of the 1992 Act states that buggery and gross indecency shall not be treated as being in private if “more than 2 persons are present” or an act is done in “any place to which the public have or are permitted to have access, whether on payment or otherwise.” Men over the age of 16 who consensually engage in these sexual acts in circumstances “elsewhere than in private” can be subject upon conviction to sentences of seven years imprisonment for buggery and four years imprisonment for gross indecency.

In addition to these offenses, Section 9(3) of the 1992 act criminalizes “[a] person who procures another person to commit with a third person an act of buggery” which is not otherwise an offense under the law and allows for a term of imprisonment of four years.

The 1992 Act also maintains a total prohibition on homosexual sex aboard merchant ships. Section 10(3) of the 1992 Act states that the provisions that partially decriminalize buggery and gross indecency do not apply to members of crew aboard a Manx merchant ship. “Merchant ship” means any ship registered on the Isle of Man that is habitually used for the purposes of carrying passengers or goods. Any consensual act of buggery or gross indecency between adult men serving as crew on a Manx merchant ship will therefore constitute a criminal offense.

ECHR Jurisprudence

As I argued in my previous article about Guernsey, it is not difficult to find ECHR jurisprudence which makes the laws in the Isle of Man appear very problematic.

In the case of retaining the specific homosexual offenses of buggery and gross indecency, there is ample case law which states that differentiation on the basis of sexual orientation amounts to discrimination contrary to Article 14 of the ECHR. For example, in Kozak v. Poland the European Court of Human Rights (ECtHR) stated:

When [a] distinction […] operates in this intimate and vulnerable sphere of an individual’s private life, particularly weighty reasons need to be advanced before the Court to justify the measure complained of. Where a difference of treatment is based on sex or sexual orientation the margin of appreciation afforded to the State is narrow and in such situations the principle of proportionality does not merely require that the measure chosen is in general suited for realising the aim sought but it must also be shown that it was necessary in the circumstances. Indeed, if the reasons advanced for a difference in treatment were based solely on the applicant’s sexual orientation, this would amount to discrimination under the Convention (emphasis added).

Singling out adult male homosexual acts for specific legal regulation is most certainly an interference with an “intimate and vulnerable sphere” of private life and is unquestionably based solely on sexual orientation.

ECHR jurisprudence also makes problematic the specification that homosexual acts are criminal if they are done “elsewhere than in private.” The ECtHR has previously held that the criminalization of homosexual sex in private when it involves more than two men constitutes a violation of Article 8 of the ECHR. In A.D.T. v. the United Kingdom, the ECtHR stated that arguments offered by the UK government to justify the criminalization of sexual acts between groups of adult men were not sufficient to justify interfering with private behaviors. As a result, the UK repealed similar provisions relating to homosexual “group sex” that are still in force on the Isle of Man.

In regard to the operation of a total prohibition on homosexual sex among members of crews aboard merchant ships, this is contrary to the ECtHR’s interpretation of Article 8 of the ECHR. It is unlikely that, following Dudgeon v. the United Kingdom, the ECtHR would accept that criminalizing homosexual acts onboard merchant ships was a proportionate response to meeting a pressing social need. In Smith and Grady v. the United Kingdom, the ECtHR held that making homosexual acts a ground for dismissal from a workplace is a violation of Article 8 of the ECHR. Therefore, the criminalization of adult homosexual acts would almost certainly be deemed to be a violation of the right to respect to private life guaranteed by Article 8 of the ECHR.

Conclusions

Because the Isle of Man is not constitutionally part of the United Kingdom, but is a self-governing possession of the British Crown, it is not subject to UK human rights or equalities law in respect to sexual orientation. However, Crown dependencies are subject to the jurisprudence of the ECtHR on sexual orientation. Furthermore, since Isle of Man law relies on Royal Assent from the British Crown, the fact that the UK has repealed all adult male homosexual specific offenses should be a catalyst for change. However, there appears to be no plan to amend Manx law. As I argued in respect of Guernsey, in retaining these specific male homosexual offenses the Isle of Man should be compared with other states around the world that are routinely condemned for continuing to single out homosexual acts for special criminal sanction.

Paul Johnson is Anniversary Reader in Sociology at the University of York, UK. His most recent book is Homosexuality and the European Court of Human Rights (Routledge, 2012).

Suggested citation: Paul Johnson, Homosexual Offenses and Human Rights in Isle of Man, JURIST – Hotline, December 8, 2012, http://jurist.org/hotline/2012/12/paul-johnson-manx-homosexuality.php