UK Law: Swinging, Public Sex and, Nudity

Two Britons have appeared in court in Dubai after allegedly having sex on a beach in the Muslim emirate. What would happen if a couple got frisky on a beach in the UK?

The Sexual Offences Act 2003, which mainly covers England and Wales but also covers Northern Ireland in some areas, does not specifically legislate against sex on the beach so long as the act is consensual, says a Ministry of Justice spokeswoman.

Effectively sex on the beach in isolated places is allowed, so long as there is a reasonable expectation of privacy - which someone engaging in such an activity would be expected to prove. But someone could be charged with outraging public decency under common law, she says, if it is proven that at least one person has seen the act.

The witness has to see the act of intimacy first-hand. CCTV does not count, says travel lawyer Philip Banks, of the firm Irwin Mitchell.

Section 66 of the Sexual Offences Act 2003 - which bans exposing one's genitals if the intention is to cause alarm or distress - can also be applied in England, Wales and Northern Ireland.

Although the act does not fully apply in Scotland, indecent exposure is an offence under common law, says a spokesman for the Law Society of Scotland, although intent would be difficult to prove. The same expectation of privacy applies north of the border, although there could be a breach of the peace if someone saw and was offended.

Another thing to bear in mind is that getting frisky on the beach in the presence of a child is a criminal offence under section 11 of the act, says the Ministry of Justice spokeswoman.

And a person can also be charged if they use words, behaviour or display to cause another person harassment, alarm or distress under sections four and five of the Public Order Act 1986.

But both of these offences only apply if the couple intend to cause alarm, or are aware that a child is watching, says Banks: These legislations are very unlikely to be used in this context.

It is rare for an amorous couple to appear in court, says criminal lawyer Mark Haslam, of BCL Burton Copeland. If police do spot a couple engaging in al fresco love making, they are more likely to issue a caution or warning.

But if it is reported by a passing - and outraged - member of the public, the couple are likely to be prosecuted and would probably be fined, with the case reported gleefully in the local press, says Banks.

First of all there is no such general offence as 'indecent exposure'.

There is an offence of 'Exposure' but the name is misleading. It is actually 'Aggressive Exposure'. It was very carefully worded so that it could not be applied to naturists. The important point is that there must be intent to cause fear, alarm or distress. The defining judgment states that 'outraging is a very strong word' and that the behaviour must go well beyond merely offensive. The offence must be in a public place but the definition of public place is rather technical.

There are no specific prohibitions of nudity. The Victorian statutes have all been repealed. Also the enabling power for councils to make bye laws regulating the decency of swim suits has been repealed to ... protect naturists from busy body ... councillors.

Public Order legislation is sometimes used against naturists. The old favourite of police and authorities when they want to make up the law as they go along is section 5 of the Public Order Act 1986. But when the victim refuses to be bullied, the prosecution finds it difficult to obtain convictions.

Another police favourite is to drag up the ludicrously old law, the 1824 Vagrancy Act, which makes it illegal to expose the male person.

Singapore Airlines, whose new Airbus A380 contains private suites with double beds, recently warned its passengers not to join the mile high club, as the suites aren’t soundproof. In English law, cases have periodically arisen from the unusual locations in which sex has been practised — including on planes.

In March 2000, a charge of "outraging public decency" followed an incident in which Mrs Amanda Holt was alleged to have performed oral sex on Mr David Machin, whom she’d just met, during the middle of a transatlantic flight. Passengers were upset by the loud moaning and squealing noises, while one passenger was kicked in the head when the liaison reached a pitch of excitement.

The charge, however, was eventually dropped and they were convicted of being drunk on a plane contrary to Air Navigation Order 2000, SI 2000/1562, art 65(1), and fined a total of £2,500.

The offence of “outraging public decency” arose from the historic role of the courts as protectors of public morality. For a conviction, it must be proved that something was of a "lewd, obscene or disgusting nature". Since 1663, this has included a variety of sexual conduct outside the bedroom, including a schoolmaster "behaving in an indecent manner with a desk" in front of two boys.

In 2006, Keith Rose was convicted of outraging public decency after he was caught on CCTV at night having oral sex with his girlfriend in the foyer of a Lloyds TSB bank in Sheffield. There were no witnesses but the branch manager saw the film the next day. Quashing the conviction on appeal, however, Mr Justice Burnton said it wasn’t enough that someone saw the event on film afterwards. There had been “no act which actually outraged public decency since there had been no public to outrage”.

Other cases have hinged whether sexual activity could physically have been performed in particular locations.

In one case in 1836, it was necessary to judge whether it was physically possible for Tommy Taylor, a wealthy lawyer, and a Mrs Mellin to have had intercourse on the 1ft 10in shelf of a wooden stile in a field near Wakefield. It was ruled that, on balance (so to speak) intercourse could have occurred on it.

And in a case in 1945, an adultery allegation turned on whether couple with a “long history of passionate intimacy” could have copulated “in a semi-recumbent position” on the front seat of a lorry parked outside Stockton-on-Tees. Mr Justice Wallington took the view, evidently relying on his own knowledge of the interior of lorry cabins, that intercourse wouldn’t have been possible.

But the Court of Appeal disagreed. The couple, it ruled, already knew their way round a sexual encounter so well, “there was no element of unfamiliarity or reluctance to contend with”. Just the handbrake and steering wheel. A seasoned divorce lawyer once noted that in his professional experience, sex was possible anywhere except on the ceiling.

The barrister Clifford Mortimer (father of Sir John Mortimer, QC) reported a surprise triumph in a divorce case: “Remarkable win today, old boy. Only evidence of adultery we had was a pair of footprints upside down on the dashboard of an Austin Seven parked in Hampstead Garden Suburb.”

In 1994, the actress Gillian Taylforth sued The Sun for libel. The newspaper had claimed she performed oral sex on her fiancé in a car parked on a sliproad to the A1 near London. When a police officer appeared at the car window, Ms Taylforth had said she was merely providing her fiancé with “abdominal relief” for an acute attack of pancreatitis.

During the libel trial, the entire court moved out to the car park to watch reconstructions of the alleged sexual act in the front of a Range Rover — first with, then without, a seat belt being worn. In testimony, Ms Taylforth presented herself as a sexually reserved character. But during the trial a film was sent to the newspaper’s advocate showing her at a party simulating masturbation with a wine bottle and using a sausage as a prop while boasting “I give very good head.” The film was shown as evidence midway through the trial, and Ms Taylforth lost her case.

Overall, the law’s stance on sex is much the same as that of the Edwardian actress Mrs Patrick Campbell, who said that “it doesn’t matter what you do in the bedroom as long as you don’t do it in the street and frighten the horses”. 

Swinging is a safe, international, middle class and increasingly popular leisure choice for married and courting couples. Yet contrary to its obligations under the European Convention on Human Rights, the United Kingdom effectively criminalises swingers in contrast to the high degree of tolerance it rightly extends to gay men for precisely the same activities.

This provides the justification used by unethical elements in the press to harass swingers even in their own homes. The British government promotes bigotry against swingers by funding an NGO that campaigns against swingers by pretending contrary to the scientific evidence that their lifestyle is detrimental to any couple's relationship.

The British government should recognise its responsibilities under the European Convention on Human Rights to respect the sexuality of swingers and stop discriminating against them. It should cease to fund the NGO that campaigns against swingers and investigate whether it has breached its charitable status; and should legalise swingers' activities and lightly regulate their dedicated premises through Acts of Parliament.

Read the complete report

The relevant section of the 2003 Sex Act to doggers is Section 66 Exposure and Section 67 Voyeurism.

Under Section 66, doggers are at risk of the law if it is their intention to cause alarm or distress to members of the public. So, if you take reasonable precautions to make sure that you are well out of public view, you should be fine. Essentially, this means only go dogging at night, away from residential areas and well away from the major carparks where anyone could turn up. If you use the carparks as a general meeting area, then move on to a more discreet location to play, you're taking steps to ensure no one is offended.

Under Section 67 , doggers are only at risk if they approach couples having sex in cars that are not doggers, and therefore not consenting, but are just simply courting couples. A large number of dogging locations have grown from well established lovers lanes and gay cruising areas, so there is a potential risk of being in breach of section 67. Luckily, the signals used in dogging establish the consent of the couple wanting people to watch them have sex, and therefore section 67 no longer applies as long as you only approach cars that have signalled to you.

2003 Sexual Offences Act - Section 66 : Exposure

(1) A person commits an offence if-
(a) he intentionally exposes his genitals, and
(b) he intends that someone will see them and be caused alarm or distress.

(2) A person guilty of an offence under this section is liable-
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years.

2003 Sex Act - Section 67 : Voyeurism

(1) A person commits an offence if-
(a) for the purpose of obtaining sexual gratification, he observes another person doing a private act, and
(b) he knows that the other person does not consent to being observed for his sexual gratification.

(2) A person commits an offence if-
(a) he operates equipment with the intention of enabling another person to observe, for the purpose of obtaining sexual gratification, a third person (B) doing a private act, and
(b) he knows that B does not consent to his operating equipment with that intention.

(3) A person commits an offence if-
(a) he records another person (B) doing a private act,
(b) he does so with the intention that he or a third person will, for the purpose of obtaining sexual gratification, look at an image of B doing the act, and
(c) he knows that B does not consent to his recording the act with that intention.

(4) A person commits an offence if he instals equipment, or constructs or adapts a structure or part of a structure, with the intention of enabling himself or another person to commit an offence under subsection (1).

(5) A person guilty of an offence under this section is liable-
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years.

The new Sexual Offences Act does not “finally put gay group sex on a par with straight group sex” as widely believed. Gay group sex is now legal. Heterosexual group sex is not.

Almost all hetrosexual group sex is a ‘brothel’ and therefore illegal under the Sexual Offences Act 1956. This is because judges have preposterously extended the definition of a brothel in various decisions. Under Winter v Woolfe 1931 two or more couples having illicit intercourse under one roof is a brothel whether or not the women are paid. Under Kelly v Purvis 1983 two women being ‘lewd’ with a man is a brothel even if no vaginal or oral sex takes place. Clearly these definitions criminalise most group sex and swinging encounters.

The House of Commons Research Paper (00/15 7/2/00) that accompanied the Sexual Offences Bill on its passage through Parliament confirmed “in some circumstances group sex acts between heterosexuals might involve the commission of an offence under section 33 of the 1956 Act of keeping or managing a brothel, as an element of reward is not necessarily required (Kelly v Purvis [1983] 1 All ER 525)”.

Swingers themselves are not actually prosecuted but group sex impressarios - swingers club owners and organisers - certainly are, as you reported in the case of the Garden of Eden in 1998. I don’t believe the owners of gay premises or gay event promoters have ever been prosecuted for running a brothel or living off immoral earnings as the owner of the Garden of Eden was, despite public and group sex being endemic in most gay establishments as everyone knows.

The fact is that in the UK it is legal to organise and provide premises for group sex between men but not between men and women. Not only is this an open and shut case of sex discrimination against women, it clearly violates Article 8 (privacy) and Article 14 (non-discrimination) of the UK’s obligations under the ECHR.

For chapter and verse on this see my report Related to Bigotry: The Repression of Swingers in Early C21st Britain at http://www.libertarian.co.uk/lapubs/socin/socin028.pd