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

The Sexual Offences Act 2003 and the Sexual Offences (Scotland) Act 2009 repealed the homosexual specific offenses of “buggery” and “gross indecency” from the criminal law of the United Kingdom (UK). As a consequence, there are no longer any sexual offenses that relate solely to, what the Sexual Offences Act 1967 once termed, “homosexual acts” committed between adult men in Great Britain and Northern Ireland. Even the retention of a specific legal provision dealing with “sexual activity in a public lavatory” is now written as a gender-neutral offense, although it continues to be disproportionately enforced in respect to male, homosexual sex.

In the states of Guernsey a different legal situation applies, since it retains criminal offenses relating specifically to homosexual acts. Guernsey is a Crown dependency and is not constitutionally part of the UK. Although not a sovereign state, Guernsey passes its own primary legislation which receives royal assent directly from the British Crown rather than from the UK Parliament. Guernsey is not, therefore, ordinarily subject to UK law such as the Human Rights Act 1998. However, Guernsey is connected with the European Convention on Human Rights (ECHR) [PDF] through its relationship with the UK and, furthermore, Guernsey has incorporated the ECHR into its domestic law through the Human Rights (Bailiwick of Guernsey) Law 2000.

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

The Law in Guernsey

The Sexual Offences (Bailiwick of Guernsey) Law 1983 [PDF] partially decriminalized male homosexual acts between consenting adults over the age of 21. The “age of consent” for homosexual acts was subsequently amended to 18 in 2000, and to 16 by the Sexual Offences (Bailiwick of Guernsey) (Amendment) Law 2011. This change only came into force on November 5, 2012, when the law was registered by the Royal Court. Therefore, the minimum age for sexual acts has been equalized in Guernsey with respect to homosexual and heterosexual sex.

However, despite this change in the minimum age for homosexual acts, the Sexual Offences (Bailiwick of Guernsey) Law 1983 still retains specific criminal offenses relating to homosexual acts. Section 1 of the 1983 act states that “a homosexual act in private shall not be an offense provided that the parties consent thereto and have attained the age of 16.” The homosexual acts of buggery and gross indecency are therefore only partially decriminalized insofar as they are committed between consenting adults “in private.” Section 3 of the 1983 act provides particular punishments for homosexual acts, including those committed by consenting adults over the age of 16. Section 4 of the act contains a specific provision for dealing with “[a] man who procures another man to commit with a third man an act of buggery.”

Perhaps the most surprising homosexual specific provision in Guernsey law relates to merchant shipping. Section 2 of the 1983 act previously contained an absolute ban on all homosexual acts committed on a merchant ship regardless of whether they were between consenting adults. The Sexual Offences (Amendment) (Guernsey) Law 2000 repealed that provision but, in doing so, included a permissive saving provision in respect of homosexual acts constituting a ground for dismissal if committed on board a merchant ship. This saving provision was further reiterated when the Sexual Offences (Bailiwick of Guernsey) (Amendment) Law 2011 came into force on November 5, 2012. This law repealed the ban on homosexual acts on merchant ships “to the extent that it is still in force anywhere in the Bailiwick…[but] shall not be taken to prevent a homosexual act from constituting a ground for dismissing a member of the crew of a Guernsey ship from his ship.”

The saving provision relating to merchant shipping is similar to that found in Section 146(4) of the Criminal Justice Act 1994 in the UK, which states that nothing “shall prevent a homosexual act (with or without other acts or circumstances) from constituting a ground for discharging a member of Her Majesty’s armed forces from the service or dismissing a member of the crew of a United Kingdom merchant ship from his ship.” Although this provision has seemingly not been repealed in the UK, (it was last subject to amendment by the Armed Forces Act 2006) it has been rendered obsolete by the removal of all statutory references to “homosexual acts” as well as by the raft of legislation prohibiting discrimination on the grounds of sexual orientation in employment that culminated in the Equality Act 2010.

ECHR Jurisprudence

It is not difficult to find ECHR jurisprudence that makes the law in Guernsey appear very problematic.

In respect to retaining the specific adult 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 stated:

[W]hen [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 [sic] 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.

Singling out 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 illegal if they are not done “in private.” This is because such a specification singles out a particular form of consensual adult sexual conduct on the grounds of sexual orientation and subjects it to a particular form of social control. The Sexual Offences (Bailiwick of Guernsey) Law 1983 specifies that “the prosecutor shall have the burden of providing that the act was done otherwise than in private” and no longer provides a statutory definition of “private.” But the specification that homosexual acts are only legal when done “in private” allows a wider scope for prosecution to be brought in respect to male homosexual activities as opposed to heterosexual activities that are not subject to this provision.

With regard to allowing a person to be dismissed from employment on a merchant ship if they engage in specific homosexual acts, this is contrary to the ECHR’s interpretation of Article 8 of the ECHR. It supports, in effect, a prohibition of homosexuality in the workplace. Making homosexual acts grounds for dismissal was deemed a violation of Article 8 of the ECHR in Smith and Grady v. The United Kingdom.

Conclusions

Because Guernsey is not constitutionally part of the UK, 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 ECHR on sexual orientation. Furthermore, since Guernsey law relies on royal assent from the British Crown, the fact that the UK has repealed all male homosexual specific offenses should be a catalyst for change. The Home Department of Guernsey has stated their intention to “modernise and reform the sexual offences legislation” and, in a letter dated May 10, 2011 [PDF], the chief minister stated that changes would be made to address “some inconsistencies based on gender and sexuality […] where an activity is only criminalised on the basis of the sexuality of those involved.” It is hoped that, in “modernizing” the law, Guernsey removes all references to “homosexual acts,” “buggery,” and “gross indecency” from its sexual offenses provisions rather than take the approach of its neighboring Crown dependency, Jersey, which retains the gender-neutral offense of “sodomie”. If Guernsey does retain specific male homosexual offenses in the future, then it should be compared with other states around the world, which are 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 Offences and Human Rights in Guernsey, JURIST – Hotline, November 29, 2012, http://jurist.org/hotline/2012/11/paul-johnson-guernsey-homosexuality.php