Monday, 25 November 2013

Isle of Man: repeal your discriminatory laws and join the twenty-first century

A year ago I published an article in Jurist 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.

That law still exists and, as a consequence, gay men living on the Isle of Man continue to inhabit a legal environment which criminalizes consensual sexual practices in which they might engage.

Isle of Man law

By virtue of S.9 Sexual Offences Act 1992 the Isle of man continues to criminalize the 'unnatural offences' of 'buggery' and 'gross indecency' - offences which have been repealed in England and Wales, Scotland and Northern Ireland.

S.9(1) of the 1992 Act which covers buggery is written in gender-neutral terms, but S.9(4) which covers gross indecency relates 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) specifies 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'.

The 1992 Act also maintains a total prohibition on buggery and gross indecency aboard merchant ships, but only in relation to men. S.10(3) of the 1992 Act states that the provisions that partially decriminalize buggery and gross indecency do 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). Any consensual sexual act committed between adult men serving as crew on a Manx merchant ship will therefore constitute a criminal offence.

Why is this problematic?

The mere existence of criminal law which subjects homosexual sexual acts to heightened regulation is a form of discrimination unacceptable under international human rights law.

Although the Isle of Man is a Crown dependency and not constitutionally part of the UK, it is contracted to the European Convention on Human Rights through its relationship with the UK and has also incorporated the Convention into its domestic law through its own Human Rights Act 2001.

It is not difficult to find Convention jurisprudence that makes the law in the Isle of Man appear very problematic.

In respect of the specific offences of buggery and gross indecency that subject homosexual acts to greater regulation there is ample case law which states that this form of differentiation on the basis of sexual orientation amounts to discrimination contrary to Article 14 taken in conjunction with Article 8 of the Convention. For example, in Kozak v Poland the European Court of Human Rights held that:
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.

The Court has also 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. 

In regard to the total prohibition on male homosexual sex among members of crews aboard merchant ships, this is contrary to the Court's interpretation of Article 8 of the Convention. It is unlikely that, following Dudgeon v the United Kingdom, the Court would accept that criminalizing homosexual acts on board merchant ships was a proportionate response to meeting a pressing social need. In Smith and Grady v the United Kingdom, the Court held that making homosexual acts a ground for dismissal from a workplace is a violation of Article 8 of the Convention. 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 Convention.

What should be done?

The Isle of Man needs to revise its sexual offences provision urgently. It needs 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 UK Government should also act to remedy this situation. Under the terms of the relationship between the UK and the Crown Dependencies the 'Ministry of Justice examines legislation [of the Isle of Man] to ensure in particular that there is no conflict with international obligations'.

There are clear inconsistencies between Isle of Man and international human rights law in respect of consensual sexual acts committed between adult men.  



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