Buggery and Gross Indecency (SOA 1956)
Code Considerations
Where an act of non-consensual buggery takes place, the public interest requires the prosecution of an offence of rape unless exceptional circumstances exist. For consensual buggery <refer to charging practice, below in this section>.
Similar public interest considerations apply in respect of gross indecency as for consensual buggery <refer to charging practice, below in this section>.
The Law
Definition of buggery
See Section 12 Sexual Offences Act 1956 (Archbold, 20-121).
Definition of gross indecency
See Section 13 Sexual Offences Act 1956 (Archbold, 20-133).
The offence of rape was restated in Section 142 of the Criminal Justice & Public Order Act 1994 to include anal sexual intercourse with another man without consent. Where anal intercourse takes place without consent, you should charge rape contrary to Section 1 of the Sexual Offences Act 1956 and not buggery contrary to Section 12 of that Act <refer to Sexual Offences - Rape, elsewhere in this guidance>.
Registration of Sex Offenders
Part 1 of the Sex Offenders Act 1997 applies to buggery and gross indecency subject to some exceptions (Archbold, paragraph 20-271j).
Age of consent
The Sexual Offences (Amendment) Act 2000 came into force on 8 January 2001. It amends the Sexual Offences Act 1956 and 1967 to reduce the minimum age of consent at which a person may lawfully consent to buggery and to certain homosexual acts from 18 to 16 in England and Wales.
No offence is committed by a person under 16 where he or she engages in buggery or certain homosexual acts with a person 16 or older (Section 12 (1AA) Sexual Offences Act 1956). It is important to note that this does not effect the liability of a person aged 16 or over who engages in such with a person under the age of consent. Furthermore, both parties remain liable if they are both under 16.
Prosecution of 16 & 17 year olds
Acts which occurred before 8 January 2001 are still potentially liable for prosecution. However, unless the case is highly exceptional it is unlikely that it would be in the public interest to proceed with such prosecutions. If you have a case which involves the potential prosecution of 16 or 17 year olds, and you consider that a prosecution is still in the public interest, this must be submitted for consideration through your Chief Crown Prosecutor to Director, Casework.
Consent of the Director of Public Prosecutions
It is important to note that the consent of the Director is required for proceedings against any male for offences of buggery or gross indecency with another male; or for aiding, abetting, counselling, procuring or commanding those offences where either male was under the age of consent. Section 1 (2) (b) of the Sexual Offences (Amendment) Act 2000 has amended Section 8 of the Sexual Offences Act 1967 so that consent is now required where either man was under 16 at the time of the offence rather than under 21.
However, for offences which took place before 8 January 2001 (the commencement date of the Sexual Offences (Amendment) Act 2000), consent of the Director is still required where either man was under 21.
Time limits
For guidance see (Archbold, 20-126).
Charging Practice
For guidance see <Sexual Offences - Rape, elsewhere in this guidance>.
Where non-consensual buggery is alleged to have taken place and anal rape is to be charged, this will also apply where the parties are married. Consent to vaginal intercourse does not imply consent to anal intercourse. Where anal intercourse takes place without consent and the evidential criteria is satisfied, a prosecution for rape will normally follow.
Specimen charges
For guidance see <Sexual Offences - Rape, elsewhere in this guidance> and <Drafting the Indictment, specimen charges, elsewhere in this guidance>.
Joinder
For guidance see <Sexual Offences - Rape elsewhere in this guidance> and <Drafting the Indictment, joinder, elsewhere in this guidance>.
Penalty Provisions
The different penalty provisions in respect of both buggery and gross indecency create distinct offences. You should, therefore, make this clear in the particulars of the indictment (Archbold, 20-123 & Archbold 20-137).
Where allegations of gross indecency are made against two or more men, it is often preferable to charge each in a separate count.
Procuring an act of gross indecency
Section 13 of the Sexual Offences Act 1956 also includes an allegation of procuring the commission of an act of gross indecency (Archbold 20-139). Such a charge may be more appropriate than one of indecent assault where the evidence of threat or hostile act towards another male is unclear.
Offences in Public
The public interest requires the prosecution of an offence of male rape unless exceptional circumstances exist. You have greater discretion where there has been consent in fact but not in law for example, where the act does not take place in private.
It will usually be in the public interest to prosecute if the conduct gives rise to the mischief that the law is aimed at preventing. Where the offending factor is that the conduct took place in public, the principal mischief is the shock, distaste or outrage that might be experienced by members of the public witnessing the conduct; or any potentially corrupting effect on a spectator. Where age is the relevant factor, the mischief is the seduction or corruption of the young.
Relationship between Parties
You will need to consider the relationship of the parties. A stable relationship, in itself, does not predispose towards or against a prosecution. It may mean that there is no exploitation of one party by the other, which would be a factor against prosecuting. On the other hand, there is a greater likelihood of repetition, which would be a factor in favour of prosecution.
Where the parties are of approximate equality and maturity, then notwithstanding that an offence of consensual buggery or gross indecency has been committed, you will take the following factors into account when deciding whether the public interest requires a prosecution:
- the age and relative ages of the parties involved;
- whether there is any element of seduction or corruption;
- whether there is any breach of trust;
- whether there has been any exploitation of position or influence;
- whether the offence represents a transitory phase of adolescent exploration;
- the likely sentence.
Public toilets
Where the conduct would have been legal but for the fact that it took place between two males in a public lavatory, factors in favour of a prosecution include:
- likelihood of members of the public witnessing the conduct;
- concern or complaints expressed by members of the public to the police about a particular lavatory;
- likelihood of members of the public coming to regard the lavatory as unsafe to use or offensive;
- likelihood of the lavatory becoming a site frequently used for homosexual conduct.
Acts of gross indecency in public toilets can be a nuisance and this will be a public interest factor when considering a prosecution. Where the toilets are known for such behaviour, a caution may not be appropriate in cases in which a caution would otherwise be appropriate. This will need to be discussed with local police.
Privacy
Section 1(2) of the Sexual Offences Act 1967 states that a homosexual act in private between consenting adult men is not an offence. Section 1(2) provides that an act is not done in private if, inter alia, more than two persons take part or are present. There are no provisions for the regulation of private homosexual acts between consenting adult women or for private acts between consenting heterosexual adults.
Section 1(2) was successfully challenged under Articles 8 and 14 in ADT v UK, (2001) 31 E.H.R.R. 803. The acts, which took place at the home of one of the defendants, came to light when the police found video recordings on a search of the home. The charge related to the acts rather than the making of the videotapes.
The Court considered that the sole element which could give rise to doubt about whether the applicant's private life was involved was the video recording of the acts. The Court found it unlikely that the applicant, who had hidden his sexual orientation and had requested anonymity, would knowingly be involved in publication of the tapes.
Although ADT has not yet led to a change in our domestic legislation, cases must be reviewed carefully to ensure that prosecution is necessary and that there is an exemption under Article 8(2). Factors to consider include those that may bring the acts into the public arena such as the number of participants and the degree of organisation involved. Other factors to consider would include any vulnerability of the parties involved or whether there was any physical harm.
Evidence of previous acquittals
<refer to R v Z [2000] 2 A.C. 483 - evidence of previous acquittals, Sexual Offences - Rape, elsewhere in this guidance>
Consent - sexual offences generally
<refer to consent - sexual offences generally, in Sexual Offences - Rape, elsewhere in this guidance>.
Character of victim - previous sexual history
Sections 41-43 of the Youth Justice & Criminal Evidence Act 1999 apply to buggery <refer to Character of victim - previous sexual history, in Sexual Offences - Rape, elsewhere in this guidance, and R v A - Complainant's sexual history, in Sexual Offences - Rape, elsewhere in this guidance>.
Buggery of an animal
This offence is rare. The general public disgust in such actions should be balanced against:
- whether the act was committed in private; and
- whether it is likely to be repeated.
A prosecution will generally follow if any of the following factors are present:
- injury to the animal;
- commercial exploitation of the animal;
- involvement of children in the offence.
A prosecution is less likely if the offence is an expression of the defendant's inadequacy and other measures can be taken to avoid repetition.
Casework location
Non-consensual buggery (anal rape) involving unusual violence or repeated attacks should be referred to the CCP for liaison with Casework Directorate, regarding the location of the case; see <Casework Level and Location; Cases to be referred or notified to the CCP, elsewhere in this guidance>.
Useful links
Archbold 20-121
Archbold 20-133
<Sexual Offences - Rape, elsewhere in this guidance>
Archbold 20-271j
Archbold 20-123
Archbold 20-137
Archbold 20-139
ADT v UK (2001) 31 EHRR 803
R v "Z" [2000] 2 AC 483
R v "A" (17May2001)(HoL)
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