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The ban on male homosexual acts on merchant ships is repealed

It is very gratifying to see that the Isle of Man has finally repealed the provision relating to homosexual acts on merchant ships from the Sexual Offences Act 1992.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.  


Tuesday, 16 June 2015

Separate and unequal? Same-sex couples in Austria challenge "sexual apartheid"

The European Court of Human Rights has communicated the complaints in Hörmann and Moser v Austria and Dietz and Suttasom v Austria. The applicants are two same-sex couples who wish to formalise their relationships. According to Austrian law, the applicants are entitled to enter into a registered partnership but not entitle to marry.

The applicants wish to marry, but the basis of their complaint to the Court does not focus on this issue. Rather, their complaint relates to the fact that the current law in force in Austria requires marriage to be contracted by the Office for Matters of Personal Status, whereas a registered partnership must be contracted by the District Administrative Authority. The applicants argue that "in their view it amounted to sexual apartheid that registered partnerships could not be concluded before the same authority as civil marriages are".

The applicants complain under Article 14 read in conjunction with Article 8 of the Convention that they are discriminated on grounds of their sexual orientation, because registered partnerships are concluded before the District Administrative Authorities, while civil marriage is contracted before the Office for Matters of Personal Status.

The Court has communicated the following two questions to the parties:

1. Have the applicants suffered discrimination on the ground of their sexual orientation, contrary to Article 14 of the Convention read in conjunction with Article 8, because registered partnerships are concluded before the District Administrative Authorities, while civil marriage is contracted before the Office for Matters of Personal Status?

2. Have the applicants in the meantime concluded a registered partnership? If so, when and where?



Saturday, 13 June 2015

"Going to Strasbourg" oral history research project

I have made a website available for a new research project that I will be carrying out over the next year. The research project, "Going to Strasbourg", aims to collect oral history accounts of individuals in the UK who have taken complaints about sexual orientation discrimination to the European Court (and former Commission) of Human Rights.

The website can be found here:

http://goingtostrasbourg.com


Tuesday, 9 June 2015

The European Court of Human Rights says 'you' have the right to marry, but this clearly doesn't extend to same-sex couples

If you are someone who would like to marry a person of the same legal sex as yourself, and live in a Council of Europe state that does not permit this, you will be delighted to learn that the European Court of Human Rights has now said that 'You have the right to marry and to have a family'. This statement was made by the Court on a poster, displayed in its Press Room last Friday (which was photographed by Jens Theilen and Annelie Siemsen - for which, many thanks).

However, those who know the Court's jurisprudence on same-sex marriage may be surprised that it has issued this poster. This is because, the Court has been consistently clear that the 'right to marry' enshrined in Article 12 of the European Convention on Human Rights (which guarantees this right to 'men and women') does not extend to same-sex couples.  

Given the Court's clear position on same-sex marriage what, therefore, is the explanation for this poster? My first reaction to it - which was one of incredulity - was to think about who the author of the poster considered to be its audience: that is, who the author imagined to be the 'you' that the poster is addressing. I wondered whether the author had in mind only opposite-sex couples when formulating the text, since clearly the use of 'you' would be correct in this context? If so, sociologists would call this a 'heteronormative' poster, insofar as it presupposes that those standing in front of it are heterosexual. 

I shared this poster with a few colleagues and, given that they are a light-hearted bunch, they reacted by suggesting that the Court might issue a revised version with different wording, such as:

"Some of you have the right to marry..."

or

"You might have the right to marry..."

Whilst this is amusing, I must confess to being quite disturbed by the Court issuing a poster that contains this text. For the millions of people in Council of Europe states who passionately believe that same-sex couples should have the human right to marry, and who respectfully try to engage with the Court's on-going jurisprudence in this area, this poster is something of a 'kick in the teeth'. Reading the Court's judgments year after year which exclude same-sex couples from the right to marry is one thing, but trite posters which fail to even recognise the issue is another thing.

There are millions of people across Europe who are living in countries where they remain persecuted for desiring the basic human right to love. That right, crystallised in 1950 in the Convention's right to marry, is currently denied to them. The Court is currently not on their side. As such, the Court should not add insult to injury by issuing posters like this.