Date: Sun, 23 Mar 1997 07:14:19 -0600 (CST) From: crosswix@ix.netcom.com (camille zanni) Subject: Fwd: U.K. Sexual Offenders Bill (No. 66) 1997, As Amended Montclair, New Jersey USA 21 March 1997 RE: U.K. Sexual Offenders Bill (No. 66) 1997, As Amended Dear Friends & Colleagues, I felt that the following exchange of correspondence in relation to the above-captioned matter would be of interest. Kind regards, William Courson ------------------------------------------------------------------------ --------------- THE MAGNUS HIRSCHFELD CENTRE FOR HUMAN RIGHTS CROSSWICKS HOUSE 551 VALLEY ROAD, SUITE #169 UPPER MONTCLAIR, NEW JERSEY U.S.A. 07043 TELEPHONE: 201-509-5288 FACSIMILE: 201-744-4971 E-MAIL: CROSSWIX@IX.NETCOM.COM WILLIAM A. COURSON EXECUTIVE DIRECTOR URGENT VIA FACSIMILE: 212-745-9395/6 February 18, 1997 His Excellency, Sir John Weston Her Majesty's Ambassador The United Kingdom Mission to the United Nations 1 Dag Hammarskjold Plaza, 48th Floor New York, New York 10017 RE: Sex Offenders Bill (No. 66) (As Amended), 1997 Dear Ambassador Weston, Your Excellency: I am writing to you in connection with the above-captioned legislation, which was introduced by your Government into the House of Commons on 18 December 1996, and which I am informed completed the "committee stage" of its consideration by Commons last week. The purpose of my writing to you in this regard is to share what I and my colleagues believe are some extremely grave shortcomings of the bill as it is presently drafted and which, if left unamended, would place the foregoing into a position of serious an d substantive conflict with international and regional human rights normative standards - standards which the United Kingdom has willingly become subject to and is legally obliged to maintain. As you may be aware, Part I of the bill places a requirement on individuals that have been convicted of one or more offenses of a sexual character to register their name and place of domicile with local law enforcement authorities in the United Kingdom. Insofar as the bill's intent appears to be the establishment of a national register of potentially dangerous offenders, it is a laudable intent. Regretably, the bill's intent is fatally flawed by the inclusion of certain "sexual offenses" in Schedule I of the same, which exist as offenses under the laws of the United Kingdom solely on account of the fact that varying ages of consent exist for the conduct of homosexual, as opposed to heterosexual, intimate relations; i.e., the age of consent for sexual relations occuring among male persons is 18 years of age, while for all other categories of conduct the age is 16 years. As you may be aware, the E uropean Court of Human Rights is to consider an application by a United Kingdom resident (Mr. Ian Sutherland) in connection with this state of affairs in the near future. That the Government would permit such legislation to go forward without adjustment amounts, I am sorry to relate, to a barely subtle "re-criminalization" of homosexuality in the United Kingdom. Specifically, the bill as presently drafted would require any male person aged 20 years or older found to be engaged in consenting sexual relations with another male under the age of 18 years to register with law enforcement authorities as a "sexual offen der." The same individual would be obliged to register under the bill's provisions, if his partner were a female, only if the latter were younger than 16 years of age. At the same time, a female person aged 20 years or over would be obliged to register under the bill's provisions only if she had such relations with a person, male or female, of 16 years in age or younger. Additionally, the bill's impact on Scotland would effectuate an even more starkly unfair and irrational situation. Homosexual acts of any kind occuring between males, even among participants in their majority and those of a consensual character, are ille gal under section 13 of the Criminal Law (Consolidation) (Scotland) Act of 1995 if they do not take place privately. The definition of "privacy" embodied in that statute and developed in subsequent case law in the United Kingdom contains language to the effect that a homosexual act shall not be deemed to have taken place in private "if more than two persons take part or are present." This restricted language is not consistent with the common meaning of the phrase "in private," especially since it runs directly counter to the clear intentions of the Wolfenden Committee, whose recommendations - as embodied in their so ca lled Wolfenden Report - the Sexual Offenses Act of 1967 professed to enact. Neither logic or equity can justify any other definition of "private" in this context than the locational and circumstantial restrictions imposed by the law on parallel sexual co nduct between persons of the opposite gender. Furthermore, under analogous legislation of 1980, it is a crime in Scotland for a male person to propose sexual relations to another male person, even if the conduct being proposed is calculated to take place in private and is therefore legal. To attach criminal sanctions to a request to engage in perfectly legal conduct transcends the most elementary concepts of equity. In the United States such proscription would be instantly struck down judicially as violative of due process of law, which I should n ot have to remind Your Excellency is also supposed to be a birthright of all of Her Majesty's subjects (Magna Carta, chapter 39). The most common way in which human beings communicate with each other is by word of mouth. It is what passes between buyer and seller in every market place; it is the vehicle of communication between teachers and students in schools, and it is the commonest method through which lovers communicate with each other. To denominate conduct between two persons as licit on the one hand, and simultaneously to impose criminal sanctions on someone who asks another person whether he or she wishes to engage in that same licit conduct, is to make a mockery of the legality originally conferred, and offends all concepts of civilized jurisp rudence. In addition to the foregoing, several issues arise which would appear to have the bill, as presently drafted, conflict with the United Kingdom's obligations under international human rights law insofar as the bill places criminal sanctions on persons fail ing to register under its provisions for prior offenses which, were the constellation of genders of the participants in the prior activities differently arranged, would be no offenses at all. As you are surely aware, Article 2 of the International Cove nant on Civil and Political Rights and Article 14 of the European Convention on Human Rights and Fundamental Freedoms require their signatories to guarantee equal rights on the basis of gender inter alia, as do Articles 26 and 14 of the same instruments r espectively require their signatories to guarantee equality of protection of the law on the same basis. The United Kingdom is a party to both instruments. Additionally, in connection to its status within the European Union, the United Kingdom is at a very minimum morally if not legally bound to observe and promote the actions of the European Parliament; on no fewer than five occasions since 1984 (resolution s relating to the Squarcialupi Report of 13 March 1984; the D'Ancona Report of 11 June 1986, the Parodi Report of 26 May 1989, the Buron Report of 22 November 1989 and the Ford Report of 10 October 1990) that body has called upon member states to eliminat e legal distinctions and discriminatory practices affecting homosexual persons. The United Kindom has not merely failed to effectuate the recommendations embodied in the actions of the European Parliament - rather its legislation has devolved in a precisely contrary direction. On the basis of the foregoing, it is my respectful request that Your Excellency transmit to your Government the urgency that, while the bill is in its reporting stage of consideration by the Commons (which I am advised is to occur either next week or the week following), consideration be given to the foregoing and that appropriate amending action be taken to ensure the United Kingdom's compliance with its international legal obligations. The American Association for Personal Privacy (of 18 Ober Road, Princeton, New Jersey, U.S.A.) has asked to be associated with the foregoing communication. The favor of Your Excellency's promptest possible reply is respectfully requested. Yours sincerely, William A. Courson Executive Director THE MAGNUS HIRSCHFELD CENTRE FOR HUMAN RIGHTS ------------------------------------------------------------------------ ------------------- (Reply) UNITED KINGDOM MISSION TO THE UNITED NATIONS One Dag Hammarskjold Plaza, 885 Second Avenue New York, New York USA 10017 Telephone: 212-745-9200 Facsimile: 212-745-9316 12 March 1997 Dear Mr. Courson, SEX OFFENDERS BILL (NO. 66) (AS AMENDED), 1997 Further to my letter of 21 February I am now able to give you a more substantive reply to the question raised in your letter of 27 February. The principle concern raised in your letter appears to be the "disparity" between the treatment of consensual heterosexual and homosexual acts. The Goverment does not consider the Sex Offenders Bill to be discriminatory. It is designed to protect the you ng and vulnerable, but it exempts consensual sexual offences where the perpetrator is close in age to the other party. This exception does not apply to older offenders, where manipulative and coercive pressure may have been exerted. Any scheme which use s age points as a separating device is bound to appear arbitrary, particularly at the margins. The Government is of course, aware of the arguments for reducing the age of homosexual consent to 16, but the fact remains that Parliament has decided, in the case of homosexual offences, that 18 must remain the age of consent. In these circumstances the Government is not prepared to lift the registration requirement where the offence is committed against someone who is a minor, in this context, by a male adult. Prosecuting authorities have discretion as to wheather to prosecute for an offence bearing in mind the public interest. They will look at each case on its merits and will take into account such things as closenss of age and the degree, if any, of abuse, manipulation or other exertion of pressures. Thank you for your enquiry. I hope this is helpful. S J Gomersail Charge d'Affaires ---- End Forwarded Message