Thursday, 25 June 2015

Isle of Man reforms its criminal law relating to homosexuality, but more reform still needed

I have previously written two articles about the existence of discriminatory sexual offences law in the Isle of Man, which continues to subject sexual acts committed between men to greater regulation than sexual acts committed between women or between men and women. I published the first article in Jurist in 2012, and the second was published on this blog in 2013. 

In both articles, I pointed out that Manx law maintained a total prohibition of buggery and gross indecency aboard merchant ships when these acts were committed between men. S.10(3) of the Sexual Offences Act 1992 stated that the provisions that partially decriminalized buggery and gross indecency 'in private' did not apply to acts 'committed on a Manx merchant ship by a man who is a member of the crew of that ship with a man who is a member of the crew of that ship or of another 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). Therefore, any consensual sexual act committed between adult men serving as crew on a Manx merchant would have constituted a criminal offence.

In light of the existence of ECHR jurisprudence, I argued that the Isle of Man needed to revise its sexual offences provision urgently. I pointed out that it needed to address "the rather ridiculous legislative situation that permits a same-sex couple to register a civil partnership but continues to subject male homosexual sex to heightened forms of regulation". 

The ban on male homosexual acts on merchant ships is repealed

It is very gratifying to see that the Isle of Man has finally repealed the provision relating to homosexual acts on merchant ships from the Sexual Offences Act 1992. During debate of the Bill that became the Terrorism and Other Crime (Financial Restrictions) Act 2014the Legislative Council of Tynwald (the Parliament of the Isle of Man) adopted an amendment that made provision to repeal the relevant sections in the 1992 Act. The House of Keys accepted the amendment and, in doing so, Hon. J P Watterson stated:
"When homosexual activity was decriminalised a number of years ago [1992], a regrettable oversight occurred when making consequential amendments, with the result that we have suffered and continue to suffer some reputational damage. The acceptance of this new clause will mean that homosexual activity on Manx merchant vessels is decriminalised". 
The claim that the blanket ban on male homosexual acts on merchant ships was a legislative "oversight" is interesting. When I spoke to officials on the Isle of Man in 2012 about the existence of this provision, they were certainly surprised. And members of the Legislative Council and House of Keys overwhelmingly supported the removal of the provisions during debates of the 2014 Act. However, Hansard shows that when the House of Keys debated this aspect of the Sexual Offences Bill on 31 March 1992 the proposal to continue the blanket ban on male homosexual acts onboard merchant ships was clear. Indeed, one member, Mr. Quinn, entered a reservation about the 'position in regard to people on merchant ships' and argued that, 'according to the legal advice' available, this position was 'contrary to the European Convention on Human Rights'. 

More law reform needed 

The reform relating to merchant ships is certainly good news. However, the Isle of Man still needs to take one more step to fully reform its criminal law. It needs to address the existence of S.9 Sexual Offences Act 1992 by virtue of which the 'unnatural offences' of 'buggery' and 'gross indecency' continue to be criminalised - offences which have been repealed in England and Wales, Scotland and Northern Ireland. 

S.9(1) of the 1992 Act which criminalises buggery is written in gender-neutral terms, but S.9(4) which criminalises gross indecency relates only to acts committed between a man with another man. Both buggery and gross indecency remain criminalized if they take place 'elsewhere than in private'. S.10(1) of the 1992 Act specifies that buggery and gross indecency shall not be treated as being in private if 'more than 2 persons are present' or are done in 'any place to which the public have or are permitted to have access, whether on payment or otherwise'.

Manx law therefore continues to single out particular sexual acts between consenting adults, and specifically male homosexual acts, for heightened legal regulation based on restrictions around 'privacy'. The European Court of Human Rights has held that subjecting homosexual acts to greater privacy restrictions is a violation of Convention rights. In A.D.T. v the United Kingdom, the Court upheld a complaint about the existence of a law similar to that found in the Isle of Man that criminalized male homosexual acts when more than two persons are present.  

If the Isle of Man wants to avoid further 'reputational damage' it should follow the lead of the UK and repeal the archaic offences of 'buggery' and 'gross indecency'. If it does not, it risks a complaint against it in the European Court of Human Rights - a complaint that would undoubtedly be successful and, therefore, embarrassing.  


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