Memorandum by Chris Ashford, Senior Lecturer
in Law, University of Sunderland
1. BACKGROUND
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. SUMMARY
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. THE LEGAL
FRAMEWORK
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. THE SOCIAL
FRAMEWORK
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. MODERN POLICING
AND PUBLIC
SEX
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. WAYS FORWARD
IN PUBLIC
TOILET ACCESS
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.
7. REFERENCES
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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