Select Committee on Communities and Local Government Committee Written Evidence

Memorandum by Chris Ashford, Senior Lecturer in Law, University of Sunderland


  1.1  Chris Ashford is a Senior Lecturer in Law at the University of Sunderland. He teaches human rights law and gender, sexuality and law and has published internationally in the field of public sex. In addition, he has spoken on the subject to academic audiences in the UK, USA, Canada and Australia. He has also advised Lesbian, Gay and Bisexual (LGB) out-reach groups, the National Health Service and the Police on public sex and the law.


  2.1  This submission will focus on addressing the subject of "anti-social behaviour" in public toilets, specifically the subject of sex in public toilets, a practice referred to as "cottaging". It sets out the present legal framework and draws upon the author's research. Together with other published academic literature, this submission discusses current policing approaches to public sex and puts forward some of the key legal and social challenges that public sex presents for policy making in relation to public toilets access. It argues that it is impossible to prevent absolutely sexual activity in public toilets and wider multi-agency strategies focussed upon minimisation are more appropriate.


  3.1  The statutory framework in relation to sex in public toilets was last reviewed by the UK Government in the White Paper, Setting the Boundaries. That report ultimately led to the Sexual Offences Act 2003 and largely a re-statement of the law on sex in public toilets, previously contained in the Sexual Offences Act 1967. Section 71 of the Sexual Offences Act 2003 states:

    (1) A person commits an offence if:

    (a)  he is in a lavatory to which the public or a section of the public has or is permitted to have access, whether on payment or otherwise,

    (b)  he intentionally engages in an activity, and

    (c)  the activity is sexual.

    (2) For the purposes of this section, an activity is sexual if a reasonable person would, in all the circumstances but regardless of any person's purpose, consider it to be sexual.

    (3) A person guilty of an offence under this section is liable on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale or both.

  3.2  Section 71(1)(a) defines a public toilet so as to extend beyond the range of those operated by Local Authorities. A public toilet can be any the public has access to including those contained in a fast food restaurant, hotel lobby or other privately owned public space in addition to "traditional" public spaces such as a bus station or other transport hub and those contained in parks and town centres.

  3.3  Research has found that this remains a law which is enforced. Between May and December 2004, 17 male defendants were proceeded against, resulting in 15 guilty verdicts, whilst in 2005 a further 46 males were prosecuted and 34 found guilty (Johnson 2007). Yet this criminalisation of sex in public toilets continues to fail in bringing a stop to this sexual behaviour.

  3.4  In addition to the specific offence of section 71, there are also sections in the Sexual Offences Act 2003 which address exposure and voyeurism. These sections can be applied to the practice of cottaging and wider "cruising" activity in which both men and women seek sexual encounters in public spaces. In contrast to section 71, these provisions are triggered if someone sees an act or is likely to see an act who does not wish to do so. Similarly, an offence is committed if a person views an act/individual and that person does not wish to be viewed. Such provisions are unlikely to therefore apply in a cottaging scenario where the parties are consenting to the acts.

  3.5  The common law in relation to public sex was brought into line with these statutory provisions in the 2006 case of DPP v Rose [2006] EWHC 852, [2006] Cr App R 29.


  4.1  The practice of seeking sex in public toilets appears to remain a purely male phenomenon practised entirely by males with other males. These men may self identify as homosexual, heterosexual or bisexual. It is therefore important not to label this as "homosexual" activity. It is a global phenomenon pervasive beyond western societies and attracts a varying lexicon although the term "cottaging" is the English term used for the phenomenon of men who have sex in public toilets Ashford 2006, 2007; Coxon 1996: 119). This is believed to derive from the traditional cottage like appearance of many western public conveniences.

  4.2  There has been a raft of social and legal changes in the UK since the 1967 legalisation of sex between two adult males in private. The last ten years alone have seen a transformed legal landscape with the passing of the Civil Partnership Act, new adoption rights, new rights in relation to the purchasing of goods and services and so on. Socially, designated "gay villages" have developed in many towns and cities, notably London's Soho, Manchester's "Canal Street" and Newcastle's "Pink Triangle" (Brook 2005; Lewis 1994; Whittle 1994). In June 2008 Liverpool announced plans to further develop their own "gay village". We have also seen a growth in social networking sites such as Gaydar that facilitate an "instant sex" culture. These developments apparently provide new spaces for men to meet other men.

  4.3  Nonetheless, men continue to engage in sexual acts in public toilets. There appear to be several reasons for this. The apparently more attractive "gay village" styled environments have been found to be less safe for men seeking sexual encounters with other men. Researchers found in a 2004 study that Manchester's Canal Street area has become dominated by heterosexual women who view the space as less masculine and safer than their heterosexual bars and clubs (Moran and Skeggs, 2004). This in turn attracts heterosexual men seeking potential sexual partners which creates friction and a less "gay" space. Similarly, another researcher in 1994 found that these spaces attract "the beautiful people" (Whittle 1994) making it less attractive space for those men who are older, less fit and less attractive. For these people the public toilet may offer one alternative sexual outlet.

  4.4  For other men the public toilet is just one of a number of venues in which to engage in rapid sexual transactions. These may be men who self identify as homosexual and may even be in a relationship or Civil Partnership and regularly participate in the gay commercial space of bars and clubs. The nature of the toilet means that if offers an instant excuse for one's presence and may form part of taking a stroll in a park or a mid commute comfort break (Delph 1978; Humpreys 2005).

  4.5  As with other public sex spaces the public toilet located near gay bars or clubs or on high traffic routes between venues may also be transformed towards the end of the evening into venues for sexual encounters as men who may have been unsuccessful in a club or a bar at attracting a sexual partner. It should be noted that these men, as with the other scenarios discussed above, are not necessarily the traditional media image of an old man with no alternative means of being sexually fulfilled. Whilst that depiction may sometimes be the case, the men frequenting such locations are just as likely to be young, slim and attractive.

  4.6  A 1993 study into motivational factors behind men who have sex with other men in public toilets found that the three main factors were that they enjoyed the activity sexually, the excitement or thrill and anonymity. The least significant factor was finding a long term partner suggesting that public toilets do not provide an alternative to commercial gay spaces or internet dating (Church et al 1993).

  4.7  Perhaps the most definitive research on the sociology of sex in public toilets was produced by an American, Laud Humphreys in the 1960s. His research and subsequent book outlined a series of "stages" to a sexual encounter taking place. This revolved around a complex set of signals and manoeuvres that a male would engage in prior to any form of contact and/or sexual activity. These stages prevented anyone who did not want to engage in such an act from being propositioned or alarmed (Humphreys 2005).

  4.8  This research is hugely important in understanding sexual encounters in public toilets. Decisions from which urinal to stand at to which cubicle to use or how long to stand at a urinal, decisions which men are socialised into making without a second thought upon entering a public toilet are vital initial stages in a sexual encounter. A man will not engage in encounters with someone who does not wish a sexual act to take place. It is striking that in all of the reported case law in this area cases revolve around police observation or the police using agent provocateur tactics (where they "pretend" to be seeking sex). Media reports of public concern appear to be based on rumour, watching the traffic into a public convenience, toilet vandalism or typically in the more general area of "cruising" activity, the depositing of sexual litter, often used condoms or traces of semen. It does not appear to be based on being approached sexually in a public toilet.

  4.9  Evidence of sexual activity in these spaces has traditionally taken the form of sexualised graffiti and/or the drilling of holes in lavatory holes. These holes are termed "glory holes" and dependant upon their size may be to pass a penis through in order for the men to engage in anonymous oral sex and on rare occasions intercourse. They more often serve as a peep hole through to the other toilet or out towards the urinals. On those occasions the person entering the cubicle would check that the adjacent cubicle is empty before unblocking the cubicle hole. These holes are often blocked up by tissue paper which will be removed so that one cubicle occupant can view through to the other. The addition of metal plating on cubicle walls is often an effective mechanism of preventing this. Alternatively the cubicle can be designed with a solid brick wall so as to make the cutting or drilling of a hole impossible.

  4.10  Whilst the growth of the Internet has contributed to a reduction in graffiti, it has not contributed to reduction in glory holes as they still constitute an integral part of cottaging behaviour and the continued use of thin partition walls in toilet construction further facilitates this practice.

  4.11  The Internet is transforming cottaging from an activity engaged in by men with other men, often in silence and who do not communicate beyond the markings of a cubicle wall. Today an online community is being established in which men exchange details of locations, discussing aspects such as when it receives the highest traffic, when it is safest and to facilitate sexual encounters by arranging meeting times.

  4.12  The development of this online community offers new opportunities for communication with local authorities, law enforcement agencies and other key stakeholders. However, it is noticeable that on many "heterosexual" boards that are designed to support dogging activities (where couples meet with other couples or individuals in public spaces for sexual encounters) the use of the boards by journalists, law enforcement agencies and other groups such as teenage boys to discover these venues and disrupt them has meant such information is now much more difficult to discover online. It is therefore highly likely that the wrong policy decisions now may lead to a reduction in this resource relating to the practice of cottaging.


  5.1  Just as the Internet has transformed cottaging from the perspective of those who engage in sexual activities in public toilets, so to is it beginning to transform policing and reveal publicly different policing approaches.

  5.2  The author's own research has revealed radical variations in the application of the law pertaining to sex in public toilets across the UK. Some Police forces have, on the basis of Internet postings, stated that they are not enforcing the law whilst other Police forces use the Internet as a means of responding to public complaints and achieving temporary reductions in cottaging behaviour at specific locations. In other instances, the Police use the Internet as a means of advising the community that they are breaking the law and will be prosecuted but such statements appear to be typically ignored.

  5.3  Where the Police do seek to create a supportive environment there is evidence of a discussion within the cottaging community about their behaviour and strategies to minimise their visibility, as can be seen in this example taken from an Internet discussion board (Ashford 2007):

    "... Youre [sic] right on the button with your `I told you so!' I continually posted warnings about litter and indiscrete [sic] behaviour... I don't think that anyone can say the police are being homophobic. The[y] have reacted to complaints recieved [sic] about boy races [sic] being homophobic and continue to encourage the reporting of homophobic hate crime and will continue to try to build bridges with the gay community, but we need to be met half way! If you are going to use cruising sites, then BE DISCRETE [sic] AND TAKE YOUR LITTER HOME!!!"

  5.4  There therefore needs to be a recognition that the Police are deploying a variety of approaches with mixed results. In most instances the sexual behaviour is displaced to other public sex locations and so any approach to sex in public toilets must take account of other public spaces.


  6.1  Public sex in toilets appears to have existed as long as public toilets have existed. This is a social phenomenon that continues today across the globe and in a range of different societies. It is both rural and urban, confounding those who might assume that "alternative" commercial spaces such as gay clubs, bars and saunas may offer alternative social spaces in which gay men can meet.

  6.2  The public toilets which continue to attract sexual behaviour are not limited to the dark, dirty and neglected spaces of folklore. The most recently announced "Loo of the Year Awards", promoted by the British Toilet Association named the overall winner as the Trafford Centre in Manchester yet Internet evidence reveals the shopping centre as a host to sexual activity throughout the different mall toilets. ASDA, the recipient of the UK Individual Category in the awards, regularly features in listings around the country. Fast food restaurants and service stations attract similar behaviour. The very public toilets that are currently held out as the best are therefore not immune from sexual activity and yet remain capable of winning awards for their facilities.

  6.3  This perhaps reinforces the invisible nature of much of this activity. It often remains undetected by the public until local media reports expose locations—a journalistic device made all the more easy by the plethora of Internet listings available.

  6.4  There is therefore a real question to be pondered about the extent to which we as a society should be concerned about public sex that takes place in public spaces. It has been branded "anti social behaviour" yet it often takes the form of behaviour which the wider public are not aware of, are not affected by and which only constitutes a harm once they are aware an activity takes place. There is also perhaps a distinction to be drawn between a sexual encounter in public toilet in the middle of a dark park at 2am and one in the middle of a shopping centre on a Saturday afternoon.

  6.5  The 2am scenario actually constitutes the greater legal and policing challenge presenting as it does a series of potential dangers for the men who take part in the form of heightened sexual risk from the lack of light, time and location together with a heightened risk of homophobic and/or vigilante attack. The afternoon scenario is probably too busy a time with too much traffic passing through the public toilet for any activity to take place and consequently a cruiser is more likely to opt for a different time. In a sense, the phenomenon regulates itself in limiting its activities at the times when there is most likely top be wider public contact and interaction.

  6.6  The closure of these public toilets late at night would therefore undoubtedly prevent sexual activity from taking place in them, although such a move would in all likelihood push the sexual behaviour out of the relative privacy of a public lavatory and into the wider, potentially more dangerous spaces of public toilets, picnic areas, lay-bys and other public spaces.

  6.7  Whilst public toilets cannot be cost-effectively staffed 24 hours there is evidence from Internet discussion boards and postings that there present can act to disrupt sexual activity. These tend to be transient and sexual activity often appears to still take place even where an attendant is present. It does however make the production of glory holes and other acts of damage more difficult to perform and may therefore limit the toilet vandalism sometimes associated with cottaging.

  6.8  Similarly Closed Circuit Television (CCTV) may limit activity where there is clear signage that a location is being monitored by CCTV. Where a location is monitored by signs are not prominent and/or the cameras are not prominent there is evidence that sexual encounters continue to take place. Even where cameras and signs are present activity appears to still take place, although less so than non-electronically monitored locations.

  6.9  There does not therefore appear to be a panacea to bringing public toilet sexual activity to an end. There are measures that can be taken to displace activity which may create additional challenges for local health and law agencies, the private sector who may provide the restaurant and bar locations which would see an increase in activity, together with new issues for communities and local government. Alternative, often expensive, endeavours such as CCTV may have a limited impact but do not by their mere presence prevent sexual acts from taking place.

  6.10  Single occupancy units may provide a solution to much of this activity. However, Internet evidence suggests that even those venues, often with there increased space in order to accommodate disabled patrons, provide an attractive venue, albeit to apparently a very small number of men.

  6.11  Public sex should therefore be a consideration in the design of spaces and the monitoring of those spaces but such activities are realistically about managing sexual activity rather than preventing it. It must form part of a wider strategy that addresses the subject of public sex as activity in one public space will affect another space. Key stakeholders who are likely to be affected by any change in policy must also be engaged—principally those working in sexual health and the Police along with other LGB and community groups. The Internet in particular has a role in creating a dialogue and/or transmitting messages to the modern day cottaging community.


Ashford, C (2006) "The Only Gay in the Village: Sexuality and the Net", 15(3) Information & Communications Technology Law, 275.

Ashford, C (2007) "Sexuality, Public Space and the Criminal Law: The Cottaging Phenomenon", 71(6) Journal of Criminal Law, 506.

Brook, B (2005) "Village People", Gay Times, 32.

Church et al (1993) "Investigation of Motivational and Behavioural Factors Influencing Men Who Have Sex with other Men in Public Toilets", 5(3) AIDS Care, 337.

Delph, E W (1978) The Silent Community: Public Homosexual Encounters (Sage: London).

Humphreys, L (2005) tearoom Trade (AldineTransaction: New Brunswick).

Johnson, P (2007) "Ordinary Folk and Cottaging: Law, Morality and Public Sex", 34(4) Journal of Law and Society, 520.

Lewis, M (1994) "A Sociological Pub Crawl around Gay Newcastle", in Whittle, S, The Margins of the City: Gay Men's Urban Lives (Arena: Aldershot).

Moran, L and Skeggs, B (2004) Sexuality and the Politics of Violence and Safety (Routledge: London).

Whittle, S (1994) "Consuming Differences: The Collaboration of the Gay Body with the Cultural State", in Whittle, S, The Margins of the City: Gay Men's Urban Lives (Arena: Aldershot).

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