EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 25186/94
Euan Sutherland
against
the United Kingdom
REPORT OF THE COMMISSION
(adopted on 1 July 1997)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-11) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 12-16). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 17-30) . . . . . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 17-18). . . . . . . . . . . . . . . . . . .3
B. Relevant domestic law and background
(paras. 19-30). . . . . . . . . . . . . . . . . . .3
III. OPINION OF THE COMMISSION
(paras. 31-66) . . . . . . . . . . . . . . . . . . . . 10
A. Complaints declared admissible
(para. 31). . . . . . . . . . . . . . . . . . . . 10
B. Points at issue
(para. 32). . . . . . . . . . . . . . . . . . . . 10
C. Articles 8 and 14 of the Convention
(paras. 33-67). . . . . . . . . . . . . . . . . . 10
CONCLUSION
(para. 67). . . . . . . . . . . . . . . . . . . . 17
CONCURRING OPINION OF Mr. I. CABRAL BARRETO JOINED BY
Mr. B. CONFORTI . .. . . . . . . . . . . . . . . . . . 18
DISSENTING OPINION OF MM. K. HERNDL AND I. BÉKÉS . . . 19
DISSENTING OPINION OF Mr. J.-C. SOYER . . . . . . . . 21
DISSENTING OPINION OF Mr. F. MARTINEZ . . . . . . . . 22
APPENDIX: DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . 23
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a British citizen, born in 1977 and resident in
London. He is represented before the Commission by Mr. S. Grosz,
solicitor with Messrs. Bindmans, London, together with
Ms. Angela Mason, of STONEWALL, a non-governmental organisation which
works for lesbian and gay equality, and Mr. Peter Duffy, a barrister
in London.
3. The application is directed against the United Kingdom. The
respondent Government were represented by their Agent,
Ms. Susan Dickson, of the Foreign and Commonwealth Office, London.
4. The case concerns the age of consent for homosexual relations in
the United Kingdom. The applicant invokes Articles 8 and 14 of the
Convention.
B. The proceedings
5. The application was introduced on 8 June 1994 and registered on
19 September 1994.
6. On 10 January 1995 the Commission decided, pursuant to Rule 48
para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite the parties to
submit written observations on its admissibility and merits.
7. The Government's observations were submitted on 5 May 1995, after
an extension of the time-limit fixed for this purpose. The applicant
replied on 24 August 1995, also after an extension of the time-limit.
On 19 April 1996 the Commission granted the applicant legal aid for the
representation of his case.
8. On 27 November 1995 the Commission decided to hold a hearing of
the parties. The hearing was held on 21 May 1996. The Government were
represented by Ms. Susan J. Dickson, Agent of the Government,
Mr. David Pannick QC, Counsel and MM. Steven Bramley and Chris Hudson,
Advisors of Home Office. The applicant was represented by
Mr. Peter Duffy, Counsel, Ms. Clare Montgomery QC, Counsel,
Mr. Stephen Grosz, Solicitor, Ms. Angela Mason, Executive Director of
Stonewall and Mr. Matthew Heim, Pupil barrister. The applicant and his
father, Mr. Norman Sutherland, were also present.
9. After the hearing, the Commission declared the application
admissible.
10. The text of the Commission's decision on admissibility was sent
to the parties on 4 June 1996 and they were invited to submit such
further information or observations on the merits as they wished. The
Government submitted certain information on 9 July 1996.
11. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
12. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. S. TRECHSEL, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
F. MARTINEZ
C.L. ROZAKIS
J.-C. GEUS
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
A. PERENIC
K. HERNDL
E. BIELIUNAS
13. The text of this Report was adopted on 1 July 1997 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
14. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
15. The Commission's decision on the admissibility of the application
is annexed hereto.
16. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
17. The applicant became aware of attraction to other boys at about
the age of 12. As his contemporaries became more interested in girls,
he became more aware that he was sexually attracted to boys. From
around that time, he felt sure that his sexual orientation was
homosexual. He tried going out with a girl when he was 14. They are
still friends, but there was no sexual attraction with her, and the
experience confirmed for the applicant that he could only find a
fulfilling relationship with another man.
18. The applicant had his first homosexual encounter when he was 16,
with another person of his own age who was also homosexual. They had
sexual relations, but both worried about the law.
B. Relevant domestic law and background
19. Section 12(1) of the Sexual Offences Act 1956 ("the 1956 Act")
makes it an offence for a person to commit buggery with another person.
By Section 13 of the 1956 Act it is an offence for a man to commit an
act of "gross indecency" with another man, whether in public or
private.
20. By Section 14(1) of the 1956 Act, it is an offence for a person
to commit an indecent assault on a woman. By Section 14(2) of the 1956
Act, a girl under the age of 16 cannot give any consent which would
prevent an act being an assault for the purposes of the section.
21. By Section 1 of the Sexual Offences Act 1967 it was provided,
inter alia:
"(1) Notwithstanding any statutory or common law provision ...
a homosexual act in private shall not be an offence provided that
the parties consent thereto and have attained the age of twenty-
one years.
...
(7) For the purposes of this section a man shall be treated as
doing a homosexual act if, and only if, he commits buggery with
another man or commits an act of gross indecency with another man
or is a party to the commission by a man of such an act ..."
22. The consent of the Director of Public Prosecutions was required
for criminal proceedings in relation to homosexual acts "where either
of those men was at the time of its commission under the age of 21"
(Section 8 of the 1967 Act). In 1990 455 prosecutions gave rise to
342 convictions. In 1991 213 prosecutions gave rise to
169 convictions. The consent of the DPP is now required for
prosecutions of males aged 16 and 17.
23. The Policy Advisory Committee on Sexual Offences, reporting to
the Home Secretary in 1981, recommended that the minimum age for
homosexual relations between men should be reduced to 18. The
Committee accepted that the sexual pattern of the overwhelming majority
of young men is fixed by the age of 18, and that whilst young men of
between 16 and 18 could still benefit from the protection of the
criminal law, by the age of 18 the overwhelming majority of young men
are mature enough to assume the responsibility of deciding their
reaction to homosexual advances. A minority of the Committee
considered that the minimum age should be reduced to 16. The Committee
noted:
"38. Most people feel that the natural and proper expression of
human sexuality is to be found in heterosexual relationships ...
and that to introduce a boy to homosexual practices could, in
some cases, deprive him of this. The majority of parents would
surely wish their children to grow up with the desire and
possibility of marriage and children and anything which puts this
expectation at risk would be deplored.
39. ... with more general understanding of the very delicate
balance of sexuality in all of us, with a greater willingness to
discuss the subject in public and private, we believe that
society's attitude to homosexuality has become less hostile and
that a recommendation for reduction in the minimum age from 21
to 18 would now be likely to be acceptable to public opinion. ...
Although it will, of course, be for Ministers and Parliament to
consider our recommendations in this Report, most of us believe
that a recommendation that the minimum age should be reduced to
16 would prove to be wholly unacceptable to public opinion.
Those members consider that public opinion would support the
proposition that the minimum age for homosexual relations should
be higher than the age of consent for sexual intercourse: the law
would then be regarded as a factor in encouraging those young men
who need protection and assistance to avoid homosexual relations
while they are immature.
...
41. In our working paper we concentrated much attention on the
age by which a young man's sexual pattern becomes fixed so that
the performance by him of homosexual acts above that age would
be unlikely to divert him from a heterosexual to a homosexual
pattern of sexual behaviour. We learned that most medical
commentators consider that with few exceptions a settled
orientation is established before the age of 16. A minority of
commentators, however, are of opinion that there is a significant
number of young men, including bisexuals ... whose sexual pattern
is not fixed by that age. Those of us who favour a minimum age
of 16 think that the proportion is too small to merit a minimum
age of 18. Most of us, however, take the view that a reduction
in the minimum age to 16 could only be justified if there were
stronger evidence than at present exists to the effect that such
a reduction would not have harmful consequences for 16- and
17-year-olds and are strongly influenced by the lack of unanimity
in the medical evidence on the subject. We all accept, however,
that the sexual pattern of the overwhelming majority of young men
is fixed by the age of 18.
42. Another reason for discouraging young men from
participating in homosexual relations is the possibility that
they will not be sufficiently mature to cope with the
consequences of their actions. The British Medical Association,
who favour a reduction in the minimum age to 18, have told us
that the physical development of males is in general about
two years behind that of females. A number of organisations who
commented on our working paper said that in recommending a
minimum age of 18 as opposed to 16 the majority of us had
disregarded the principle of sexual equality (by which we
understand equal treatment of heterosexual and homosexual acts)
which appeared to demand a reduction in the age to 16, the age
which we recommend should remain the age of consent for sexual
intercourse. To this the majority replies that it seems
reasonable, taking into account the evidence of the British
Medical Association, to assume that emotional and psychological
development do not significantly outstrip physical growth. They
consider it incumbent on those who assert that boys and girls of
the same age possess much the same degree of emotional and
psychological maturity to adduce evidence in support of their
claim. In their opinion satisfactory evidence has not been
forthcoming ... "
24. In January 1994 the British Medical Association (BMA) adopted a
report of its Board of Science and Education. The report discussed the
BMA's previous position and the present evidence, and noted concern
that young homosexual men were especially at risk of sexually
transmitted infections including gonorrhoea and HIV. It considered
that this "may be because they are less able to access sources of
information and advice about safer sexual practice", and gave as
possible reasons for that lack of access that they feared seeking
professional advice because to do so would be to admit to having
committed a crime, and because official homosexual organisations
operated over-21 policies, to comply with the law as it then stood.
The report concluded:
"Of prime concern to the Board ... and to the medical profession
as a whole, are the concerns that the present law may inhibit
efforts to improve the sexual health of young homosexual and
bisexual men. The average age of first homosexual encounter has
been found to be 15.7, and it is vital that these young
homosexual men receive effective health education and health
care.
Previously the BMA proposed that the age of consent for
homosexual men should be set at 18 to reflect their slower rate
of biological development. However, most researchers now believe
that sexual orientation is usually established before the age of
puberty in both boys and girls.
The purpose of age of consent legislation is to protect
vulnerable young people from sexual exploitation and abuse, but
there is no clear justification for a differential age for
homosexual male activity and other sexual activity. Although
homosexual experimentation may be quite common among adolescent
boys (despite the present law), extensive recent research does
not indicate that men aged 16-21 are in need of special
protection because they may be "recruited" into homosexuality.
Unwelcome sexual attractions of a seriousness warranting criminal
prosecution are equally offensive whether the victim is a man or
a woman: the same law should therefore apply to all.
Evidence would suggest that reducing the age of consent to 16
would be unlikely to affect the number of men engaging in
homosexual activity, either in general or within specific age
groups. Commencement of sexual activity well below the age of
21 has been established ...
There is no convincing reason against reducing the age of consent
for male homosexuals to 16 years, and to do so may yield some
positive health benefits.
[The Board recommended:]
That the age of consent for homosexual men should be set at 16
because the present law may inhibit efforts to improve the sexual
health of young homosexual and bisexual men."
25. The question of an appropriate minimum age of consent to male
homosexual relations was debated in Parliament during consideration of
amendments to the Criminal Justice and Public Order Bill.
26. On 21 February 1994, on a free vote, the House of Commons by
307 votes to 280 rejected an amendment to reduce the minimum age of
consent to 16 but, by 427 votes to 162, accepted an amendment to reduce
the minimum age to 18.
27. In the course of the debates, the then Home Secretary,
Mr. Michael Howard, supporting the reduction of the age of consent to
18, but opposing a reduction of the age to 16, said, inter alia:
"... The [Policy Advisory] Committee could not reach a unanimous
view. But the majority of its members concluded, like [the]
Wolfenden [Committee], that the key question was to determine an
age at which most young men could be said to be mature enough to
take a decision on these matters for themselves. The Committee's
conclusion, which was informed by the public consultation which
preceded its report, was that the age of consent should be
reduced to 18. Although current medical opinion seems more
rather than less certain that sexual orientation is fixed in both
sexes by 16 in most cases, there will still be some young men for
whom homosexual experience after that age will have profoundly
influential and potentially disturbing effects.
It is also still unquestionably the case that most parents hope
and expect their sons to follow a heterosexual lifestyle and hope
that in due course they will build a family life of their own.
The Committee put it in the following way at paragraph 38:
'The majority of parents would surely wish their children to grow
up with the desire and possibility of marriage and children, and
anything which puts this expectation at risk would be deplored.'
I believe that those arguments still hold good. It is still true
that in following a homosexual way of life a young man sets
himself apart from the majority. From a certain age, he should
be free to take that decision and no persecution or
discrimination should flow from his decision, but he should not
be misled into thinking that his decision will have no effect on
his dealings with society at large. At the very least, he
deserves time in which to make up his mind.
... (H.C. Deb. 21 February 1994, Col. 93)
Two further arguments have been put with especial frequency in
the discussions leading up to the debate and I want to deal with
them. They both concern equality, although to my mind the
analysis offered by Wolfenden and by the Policy Advisory
Committee, which I have just discussed, offers a more robust
basis for what the criminal law can and should do in the area
than an over-simple reliance on parity, either as between the
sexes or as between countries.
Equality of treatment under the law between homosexuals and
heterosexuals does not in my view represent an end in itself.
Whatever the scientific evidence about the age at which sexual
orientation is fixed, it would be wrong to ignore the instinctive
and deeply-held concern of many people that a decision to have
homosexual sex is quite different from a decision to have
heterosexual sex. Both Wolfenden and the Policy Advisory
Committee recognised the general desirability of avoiding
unnecessary discrepancies in the law's treatment of men and
women, but both eventually supported recommendations which
acknowledged that such discrepancies were still justified. In
my view, therefore, we shall not offend against any fundamental
political or civil right if we continue to reflect in the
criminal law a public understanding of the difference between
homosexual activity and heterosexual activity.
... (ibid, Cols. 95-96)
There is a second element of equality on which some reliance has
been made. It has been suggested that we in this country should
change our age of consent because it has been changed in other
countries. That is a rather extraordinary argument, particularly
as there is no consensus in other countries about what that age
should be. If we are unusual in Europe in respect of our age of
consent for homosexuals and we are satisfied that there is good
reason for us to do so, we are entitled to maintain that
position. That is an issue which we can and should decide for
ourselves.
...
For my part, I believe that reducing the age of consent from 21
to 18 strikes the right balance. On the one hand, we should not
criminalise private actions freely entered into by consenting
mature adults. On the other hand, we need to protect vulnerable
young man from activities which their lack of maturity might
cause them to regret ..."
(ibid, Col. 97)
28. In supporting a reduction of the age of consent to 16, Mr. Tony
Blair, the then Leader of the Opposition said, inter alia:
"Let us be clear about the issue before us tonight. It is not
at what age we wish young people to have sex. It is whether the
criminal law should discriminate between heterosexual and
homosexual sex. It is therefore an issue not of age, but of
equality. By supporting equality, no one is advocating or urging
gay sex at 16 any more than those who would maintain the age of
consent for heterosexual sex advocate that girls or boys of 16
should have sex. It is simply a question of whether there are
grounds for discrimination.
At present, the law discriminates. There is no doubt about the
personal misery that such discrimination brings: to young people
frightened to admit their own sexuality and of the fear of
imprisonment, and to any man who is homosexual and who knows that
the criminal law treats that in a different and more
incriminating way.
The argument - and the only argument - advanced to justify that
discrimination and its attendant tragedy is that it is necessary
for the protection of young people. Without it, it is said,
young men unsure of their sexuality may be preyed upon by older
homosexuals and induced to become homosexual when they otherwise
would not. I will attempt to deal with that argument tonight.
...
The overwhelming evidence - scientific or indeed merely
experience of life - suggests that being homosexual is not
something that people catch, are taught or persuaded into, but
something that they are.
It is not against the nature of gay people to be gay; it is in
fact their nature. It is what they are, it is different, but that
is not a ground for discrimination. The vast bulk of evidence
suggests that, at 16, boys and girls, particularly nowadays, are
aware of their sexuality and that, what is more, that sexuality
is normally developed with those of their own age, not with
predatory elders ...
... (ibid, Cols. 97-98)
We talk about predatory older men. That happens - if it does
happen - not just with young men but with young girls, yet no one
would advance that as a reason for raising the age of consent.
...
The point that has been made about other countries is not that
we should follow what happens in other countries, or the fact
that the majority of other countries in Europe do not
discriminate should mean that we necessarily blindly follow their
path; it is, first, that many of those countries are among the
most conservative, usually, in such matters, which makes their
decision on equality all the more telling, and, secondly, and
most important, that there is no evidence to suggest that any of
the adverse consequences forecast as attending a move to equality
here have happened in those countries - none, not a shred of
evidence, not anywhere.
...
In the end, all the concern, however ostensibly objective - let
us assume that some of it is genuinely motivated - is traceable
to that very subjective prejudice. Let us be clear that people
are entitled to think that homosexuality is wrong, but they are
not entitled to use the criminal law to force that view upon
others. That is where the real practitioners of political
correctness lie - not in those who merely seek equality of
treatment but in those who insist that the law must discriminate
in favour of their view of the conduct of others. That is why,
also, the so-called compromise of 18 is misguided. What is the
rationale behind maintaining the stigma but at a different age?
It is an issue not of age but of equality ..."
(ibid, Col. 99)
29. The amendments to the Bill were further debated in the House of
Lords on 20 June 1994. The House voted, again on a free vote, by
245 votes to 71, not to reduce the minimum age of consent to 16 but,
by 176 votes to 113, to reduce it to 18.
30. The Criminal Justice and Public Order Act 1994 replaced the word
"twenty-one" in Section 1 of the Sexual Offences Act 1967 with the word
"eighteen". The Act entered into force on 3 November 1994.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
31. The Commission has declared admissible the applicant's complaints
that the fixing of the minimum age for lawful homosexual activities at
18, rather than 16, is in violation of his right to respect for his
private life, and is discriminatory.
B. Points at issue
32. Accordingly, the issue to be determined is whether there has been
a violation of Article 8 (Art. 8) alone or taken in conjunction with
Article 14 (Art. 8+14) of the Convention by reason of the prohibition
of consensual homosexual acts between males over the age of 16 but
under the age of 18 years.
C. Articles 8 and 14 (Art. 8+14) of the Convention
33. Article 8 (Art. 8) of the Convention provides, so far as is
material, as follows:
"1. Everyone has the right to respect for his private ... life
...
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society ... for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
34. The applicant asserts, and his assertion is undisputed by the
Government, that he is a homosexual who has had sexual relations with
other males since he attained the age of 16. The Government emphasise
that despite the content of the law, the applicant has not been
prosecuted or threatened with prosecution and that there is no
suggestion that the police or any other domestic authority showed any
interest in his sexual activities prior to his eighteenth birthday.
Consequently, it is argued that any interference with the applicant's
private life has, in practice, been extremely limited.
35. The Commission notes that, prior to November 1994 and until the
applicant's eighteenth birthday, the effect of the legislation was to
prohibit the applicant from engaging in any homosexual act with another
male.
36. Consistently with the Court's judgments in the Dudgeon, Norris
and Modinos cases (Eur. Court HR, Dudgeon v. the United Kingdom
judgment of 22 October 1981, Series A no. 45; Norris
v. Ireland judgment of 26 October 1988, Series A no. 142; Modinos
v. Cyprus judgment of 22 April 1993, Series A no. 259), the Commission
considers that the maintenance in force of the impugned legislation
constituted an interference with the applicant's right to respect for
his private life (which includes his sexual life) within the meaning
of Article 8 para. 1 (Art. 8-1) of the Convention. Even though the
applicant has not in the event been prosecuted or threatened with
prosecution, the very existence of the legislation directly affected
his private life: either he respected the law and refrained from
engaging in any prohibited sexual acts prior to the age of 18 or he
committed such acts and thereby became liable to criminal prosecution.
The Commission further finds no reason to doubt the general truth of
the applicant's allegations as to the distress he felt in having to
choose between engaging in a sexual relationship with a like-orientated
person of around the same age and breaking the law.
37. The Commission accordingly finds that the applicant was until he
attained the age of 18 directly affected by the legislation in question
and can claim to be a "victim" thereof under Article 25 (Art. 25) of
the Convention.
38. The Commission recalls that the compatibility with Article 8
(Art. 8) of the Convention of the setting of a minimum age below which
male homosexual acts are prohibited has been considered in the case-law
of the Court and of the Commission. It is well established by that
case-law that there is a legitimate necessity in a democratic society
for some restrictions over homosexual conduct, notably in order to
provide safeguards against the exploitation and corruption of those who
are specially vulnerable by reason of their youth. As the Court has
observed, such restrictions serve the interests both of the "protection
of the rights and freedoms of others" and the "protection of morals":
"Thus, 'protection of the rights and freedoms of others', when
meaning the safeguarding of the moral interests and welfare of
certain individuals or classes of individuals who are in need of
special protection for reasons such as lack of maturity, mental
disability or state of dependence, amounts to one aspect of
'protection of morals'..."
(the above-mentioned Dudgeon judgment, p. 20, para. 47)
39. The Court further observed that it fell in the first instance to
the national authorities to decide on the appropriate safeguards
required for the defence of morals in their society and, in particular,
to fix the age under which young people should have the protection of
the criminal law (ibid, p. 24, para. 62).
40. In its Report in Application No. 7215/75, X. v. the United
Kingdom (D.R. 19, p. 66) the Commission found that the interference in
the applicant's private life involved in fixing the age of consent at
21 was justified as being necessary in a democratic society for the
protection of the rights of others. The Commission observed that the
age limit of 21 might be regarded as high in the present era,
especially when contrasted with the current position in other Member
States of the Council of Europe, and that it might be seen as
inconsistent to have an age of majority applicable to voting and other
legal transactions which was lower than the age of consent for
homosexual behaviour. However, the Commission held that it could not
disregard the fact that the question had been examined by the Wolfenden
Committee, whose recommendations had been adopted by Parliament and
incorporated in the 1967 legislation; nor could it ignore the fact
that the issue had been before Parliament again and was being then
currently re-examined by the Criminal Law Revision Committee and the
Policy Advisory Committee on Sexual Offence. In addition, the
Commission took the view that there was a realistic basis for the
respondent Government's opinion that, given the controversial and
sensitive nature of the question involved, young men in the 18-21 age
bracket who were involved in homosexual relationships would be subject
to substantial social pressures which could be harmful to their
psychological development.
41. More recently, the Commission found an Austrian measure, which
prohibited a male person over the age of 19 from engaging in homosexual
acts with a person of the same sex who was under that age, to be
compatible with Article 8 (Art. 8) of the Convention, the Commission
deciding that the age of "consent" was lower than in the previous case
concerning the United Kingdom and that there was nothing to distinguish
it from that case, save that the Austrian legislation was less
restrictive (No. 17279/90, W. Z. v. Austria, Dec. 13.5.92, unpublished;
see also No. 22646/93, H.F. v Austria, Dec 26.6.95, unpublished).
42. The Government contend that the Commission should not depart from
this jurisprudence and that the decision of Parliament to fix and
maintain a minimum age of 18 for homosexual acts by men is well within
the margin of appreciation open to a Contracting State in serving the
interests of the protection of the rights of others and of morals.
43. The applicant, while contesting these submissions of the
Government, has focused his principal argument on the alleged
discriminatory treatment of homosexual men, resulting from the
difference in the minimum age for lawful private homosexual and
heterosexual relationships, and the difference of treatment between
homosexual men and women.
44. In the light of the arguments which have been developed by the
parties in their written and oral submissions, the Commission finds it
appropriate to examine the issues raised under Article 8 in conjunction
with Article 14 (Art. 8+14) of the Convention.
45. Article 14 (Art. 14) of the Convention provides as follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
46. The applicant contends that the margin of appreciation is
particularly narrow in cases involving an obligation to refrain from
interference rather than the imposition of positive obligations on the
state, and contends that no justification at all has been advanced for
the different treatment of male and female homosexuals, and that the
justifications tendered for the difference between homosexuals and
heterosexuals are inadequate and fall outside the margin of
appreciation. In particular, he considers that most of them amount to
a bald assertion based on the fact that the current age limit results
from a vote of both Houses of Parliament. He also points out that the
evidence on which the Wolfenden Committee (1957), the Policy Advisory
Committee on Sexual Offences (1981) and the Criminal Law Revision
Committee (1984) based themselves is no longer reliable and have been
superseded by modern professional opinion and the particular issues
raised by the need to prevent HIV infection. As an example, the
British Medical Association, to whose views the Policy Advisory
Committee paid particular attention, now advocates an equal age of
consent of 16.
47. The Government recall the well-established case-law to the effect
that Contracting States are entitled to prohibit consensual homosexual
acts involving young persons in order to protect the rights of others
and to protect morals, in particular to protect young men from conduct
by which they will set themselves apart form the rest of society and
which they may well regret when they reach greater maturity. Given the
entitlement to prohibit consensual homosexual acts involving young
persons, the Government consider that they are also entitled to take
the view that such aims justify special measures in relation to young
male homosexuals by comparison with young heterosexuals, and that such
aims justify the possible application of criminal law against the young
person, and not merely against an older partner.
48. The Commission recalls that Article 14 (Art. 14) of the
Convention affords protection against discrimination, that is, treating
differently persons in relevantly similar situations without due
justification (Eur. Court HR, Fredin v. Sweden judgment of
18 February 1991, Series A no. 192, p. 19, para. 60). In particular,
"a difference of treatment is discriminatory, for the purposes of
Article 14 (Art. 14), if it 'has no objective and reasonable
justification', that is if it does not pursue a 'legitimate aim' or if
there is not a 'reasonable relationship of proportionality between the
means employed and the aim sought to be realised'. Moreover the
Contracting States enjoy a certain margin of appreciation in assessing
whether and to what extent differences in otherwise similar situations
justify a different treatment" (Eur. Court HR, Gaygusuz v. Austria
judgment of 16 September 1996, Reports 1996, para. 42).
49. In the United Kingdom, prior to 3 November 1994, the minimum age
for consensual male homosexual relations was 21 and, since that date,
the minimum age has been 18. The age of consent for consensual
heterosexual and lesbian relations has at all material times been 16.
There were and are therefore at least two differences which are at
issue: the difference in treatment of homosexual and heterosexual
relationships, and the difference in treatment between male homosexual
and lesbian relationships. The parties' submissions as to
discrimination have concentrated principally on the difference of
treatment between homosexuals and heterosexuals, and in the following
discussion, the Commission will do likewise.
50. The different minimum ages for lawful sexual relations between
homosexuals and heterosexuals are a difference based on sexual
orientation. In terms of Article 14 (Art. 14) of the Convention, it
is not clear whether this difference is a difference based on "sex" or
on "other status". The Commission notes that the Human Rights
Committee set up under the International Covenant on Civil and
Political Rights has considered that sexual orientation is included in
the concept of "sex" within the meaning of Article 26 (Art. 26) of that
Covenant, and that it did not therefore need to decide whether sexual
orientation was included in the concept of "other status" (Toonen
v. Australia, CCPR/C/50/D/488/1992).
51. The Commission for its part considers that it is not required to
determine whether a difference based on sexual orientation is a matter
which is properly to be considered as a difference on grounds of "sex"
or of "other status". In either event, it is a difference in respect
of which the Commission is entitled to seek justification.
52. The Commission notes that it is not contested that the applicant,
as a young man of 17 years of age who wished to enter into and maintain
sexual relations with a male friend of the same age, was in a
"relevantly similar situation" to a young man of the same age who
wished to enter into and maintain sexual relations with a female friend
of the same age.
53. The Commission must accordingly next determine whether the
difference in treatment of these categories pursued a legitimate aim.
54. The Commission accepts, as does the applicant, that the aim of
protecting morals and the rights of others is legitimate. The
Commission also accepts that legal measures which prescribe age limits
for particular types of sexual behaviour are, in principle, a
legitimate way of pursuing that aim. Whether, in the specific case,
the aim of protection of morals can be sufficient to justify differing
ages is a matter which the Commission will consider in connection with
the proportionality of the means and the aim.
55. The third question for the Commission is whether there was a
reasonable relationship of proportionality between the means employed
and the aim sought to be realised, and it is in this connection that
the Commission must bear in mind the margin of appreciation which the
respondent enjoys in assessing whether and to what extent differences
justify a different treatment.
56. The Government argue that it is well-established that Contracting
States enjoy a very broad margin of appreciation concerning the
assessment of the measures appropriate in relation to matters
associated with questions of morality. It is true that, in the context
of measures designed to protect the moral interests and welfare of the
society, the Court has held that State authorities are in principle in
a better position than the international judge to give an opinion on
the exact content of those requirements. It is true too that, as noted
above, the Court, in the context of Article 8 (Art. 8) of the
Convention, has acknowledged the legitimate necessity in a democratic
society for some degree of control over homosexual conduct "notably in
order to provide safeguards against the exploitation of those who are
specially vulnerable by reason, for example, of their youth"
(above-mentioned Dudgeon judgment, p. 25, para. 62). On the other
hand, the Court has underlined that in areas involving intimate aspects
of private life, there must exist particularly serious reasons before
interferences on the part of public authorities can be legitimate for
the purposes of Article 8 para. 2 (Art. 8-2) (above-mentioned Dudgeon
judgment, p. 21, para. 52, confirmed as recently as 1993 in the
above-mentioned Modinos judgment, p. 12, para. 25). Moreover, in
matters concerning alleged discrimination on grounds of sex, very
weighty reasons would have to be put forward before the Convention
organs could regard a difference of treatment based exclusively on the
ground of sex as compatible with the Convention (see Eur. Court HR,
Karlheinz Schmidt v. Germany judgment of 18 July 1994, Series A
no. 291-B, p. 32, para. 24).
57. The Commission is of the opinion that, regardless of whether the
difference in treatment of heterosexuals and homosexuals is based on
"sex" or "other status", given that it impinges on a most intimate
aspect of affected individuals' private lives, the margin of
appreciation must be relatively narrow.
58. The Government draw attention to the consistent series of
decisions by the Commission recognising that the criterion of social
protection justifies not only the imposition of restrictions on male
homosexual activity but the setting of a higher minimum age than in the
case of heterosexuals. In particular, in X v the United Kingdom
(No. 7212/75 referred to above) the Commission found that an objective
and reasonable justification existed for the different ages of consent,
there being a realistic basis for the Government's opinion that, given
the controversial and sensitive nature of the question involved, young
men in the 18-21 bracket who were involved in homosexual relationships
would be subject to substantial social pressures which could be harmful
to their psychological development. Reliance is further placed on the
conclusion of the majority of the Policy Advisory Committee which,
while recommending the reduction of the age of consent to 18, was not
prepared to accept the reduction of the age to 16: the majority of the
Committee expressed the view that such reduction could only be
justified if there was stronger evidence than then existed to the
effect that the reduction would not have harmful consequences for 16
and 17 year olds and stated that they were strongly influenced by the
lack of unanimity in the medical evidence on the subject.
59. The Commission, however, observes that its Report in X. v. the
United Kingdom is now nearly 20 years old. While it is true that the
views expressed in that Report have been subsequently repeated, it is
also true that major changes have in the meantime occurred in
professional opinions - particularly those of the medical profession
- on the subject of the need for the protection of young male
homosexuals and on the desirability of introducing an equal age of
consent. In the first place, it is noted that even by 1981 the Policy
Advisory Committee was unanimous in its view that the sexual pattern
of the overwhelming majority of young men was fixed by the age of 18
and that a minimum age in excess of 18 could no longer be supported.
Since 1981 there have been further important developments in
professional opinion. In particular, as noted above, the Council of
the British Medical Association (BMA), which in 1981 gave evidence to
the Policy Advisory Committee that boys and girls of the same age did
not possess the same degree of emotional and psychological maturity,
observed in 1994 that most researchers now believed that sexual
orientation was usually established before the age of puberty in both
boys and girls and referred to evidence that reducing the age of
consent would be unlikely to affect the majority of men engaging in
homosexual activity, either in general or within specific age groups.
The BMA Council concluded in its Report that the age of consent for
homosexual men should be set at 16 since the then existing law might
inhibit efforts to improve the sexual health of young homosexual and
bisexual men. An equal age of consent was also supported by the Royal
College of Psychiatrists, the Health Education Authority and the
National Association of Probation Officers as well as by other bodies
and organisations concerned with health and social welfare. It is
further noted that equality of treatment in respect of the age of
consent is now recognised by the great majority of Member States of the
Council of Europe.
60. The Commission, accordingly, considers it opportune to reconsider
its earlier case-law in the light of these modern developments and,
more especially, in the light of the weight of current medical opinion
that to reduce the age of consent to 16 might have positively
beneficial effects on the sexual health of young homosexual men without
any corresponding harmful consequences.
61. In contending that there remains a reasonable and objective
justification for maintaining different ages of consent for homosexual
males and for heterosexuals, the Government place considerable reliance
on the fact that the issue was recently and fully debated by a
democratically elected Parliament which, on a free vote, decided to
reduce the minimum age of consent to homosexual acts to 18 but rejected
a proposal to assimilate the age of consent to that for heterosexuals.
62. The Commission agrees with the Government that some weight should
be attached to the fact that the issue has been recently considered by
the legislature and that the reduction of the minimum age to 16 was
rejected. Nevertheless, this factor cannot of itself be decisive. Of
more importance is the sufficiency of the reasons advanced to justify
maintaining a different age of consent.
63. Two such principal arguments emerge from the speeches in
Parliament and are adopted and repeated in the Government's
submissions. In the first place it is argued that certain young men
between the ages of 16 and 18 do not have a settled sexual orientation
and that the aim of the law is to protect such vulnerable young men
from activities which will result in considerable social pressures and
isolation which their lack of maturity might cause them later to
repent: it is claimed that the possibility of criminal sanctions
against persons aged 16 or 17 is likely to have a deterrent effect and
give the individual time to make up his mind. Secondly, it is argued
that society is entitled to indicate its disapproval of homosexual
conduct and its preference that children follow a heterosexual way of
life.
64. The Commission does not consider that either argument offers a
reasonable and objective justification for maintaining a different age
of consent for homosexual and heterosexual acts or that maintaining
such a differential age is proportionate to any legitimate aim served
thereby. As to the former argument, as was conceded in the
Parliamentary debates, current medical opinion is to the effect that
sexual orientation is fixed in both sexes by the age of 16 and that men
aged 16-21 are not in need of special protection because of the risk
of their being "recruited" into homosexuality. Moreover, as noted by
the BMA, the risk posed by predatory older men would appear to be as
serious whether the victim is a man or woman and does not justify a
differential age of consent. Even if, as claimed in the Parliamentary
debate, there may be certain young men for whom homosexual experience
after the age of 16 will have influential and potentially disturbing
effects and who may require protection, the Commission is unable to
accept that it is a proportionate response to the need for protection
to expose to criminal sanctions not only the older man who engages in
homosexual acts with a person under the age of 18 but the young man
himself who is claimed to be in need of such protection.
65. As to the second ground relied on - society's claimed entitlement
to indicate disapproval of homosexual conduct and its preference for
a heterosexual lifestyle - the Commission cannot accept that this could
in any event constitute an objective or reasonable justification for
inequality of treatment under the criminal law. As the Court observed
in its Dudgeon judgment in the context of Article 8 (Art. 8) of the
Convention:
"'Decriminalisation' does not imply approval, and a fear that
some sectors of the population might draw misguided conclusions
in this respect from reform of the legislation does not afford
a good ground for maintaining it in force with all its
unjustifiable features."
(above-mentioned Dudgeon judgment, p. 24, para. 61)
66. Consequently, the Commission finds that no objective and
reasonable justification exists for the maintenance of a higher minimum
age of consent to male homosexual, than to heterosexual, acts and that
the application discloses discriminatory treatment in the exercise of
the applicant's right to respect for private life under Article 8
(Art. 8) of the Convention.
CONCLUSION
67. The Commission concludes, by fourteen votes to four, that in the
present case there has been a violation of Article 8 of the Convention,
taken in conjunction with Article 14 (Art. 8+14) of the Convention.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
(Or. French)
CONCURRING OPINION OF Mr. I. CABRAL BARRETO
JOINED BY Mr. I. CONFORTI
J'ai voté, avec la majorité, pour la violation de l'article 8
combiné avec l'article 14 de la Convention.
Toutefois, au raisonnement de la majorité, j'ajouterai qu'il
existe également une discrimination par rapport aux relations
homosexuelles des filles âgées de seize ans (par. 49).
Comme cela est indiqué à juste titre au paragraphe 64,
l'orientation sexuelle des garçons et des filles est aujourd'hui fixée
à seize ans, et je n'arrive pas à comprendre le traitement différent
qui est accordé au Royaume-Uni aux relations homosexuelles masculines
ou féminines (entre garçons ou entre filles).
(Or. English)
DISSENTING OPINION OF MM. K. HERNDL AND I. BÉKÉS
We regret that we cannot concur with the majority's view that by
maintaining a different minimum age for lawful private homosexual and
heterosexual relationships - 18 years for the former vs. 16 years for
the latter - the United Kingdom should be regarded as being in
violation of Article 8 of the Convention, taken in conjunction with its
Article 14.
The issue at stake in the present case is exclusively whether a
different treatment of homosexual and heterosexual relations, insofar
as the minimum age of consent is concerned, is permissible under the
Convention or not.
While the majority seem to recognise that some need for the
protection of young male homosexuals (below the statutory age of 18
under present law in the United Kingdom) may still exist, as there may
be certain young men for whom homosexual experience after the age of
16 (but under the age of 18) will have influential and potentially
disturbing effects, they find that maintaining the different minimum
age "is not proportionate to any legitimate aim served thereby"
(para. 64 of the Report).
So far the Commission has consistently held (cf. X. v. Federal
Republic of Germany, No. 5935/72, Dec. 30.9.1975, D.R. 3 p. 46;
X. v. the United Kingdom, No. 7215/75, Dec. 12.10.1978, D.R. 19 p. 66,
Johnson v. the United Kingdom, No. 10389/83, Dec. 17.7.1986, D.R. 47
p. 72; Zukrigl v. Austria, No. 17279/90, Dec. 13.5.1992, unpublished;
H. F. v. Austria, No. 22646/93, Dec. 26.6.1995, unpublished) that
setting a higher minimum age for lawful homosexual relationships than
for heterosexual relationships is not in violation of the Convention.
Such type of different treatment was regarded by the Commission as
having "an objective and reasonable justification in the criterion of
social protection". With its present finding the Commission departs
from this established jurisprudence on the sole ground that "now" "most
researchers believe that sexual orientation is usually established
before the age of puberty in both boys and girls". This is a quotation
from a Report of the British Medical Association which voted in 1994
"to support lowering the age of consent for gay men to 16" (although
as stated in the same Report the Association had previously proposed
"that the age of consent for homosexual men should be set at 18 to
reflect their lower rate of biological development").
While, as we believe, all States parties to the Convention share
the view expressed by the Court that the Convention is a living
instrument which must be interpreted in the light of present-day
conditions (cf. Eur. Court HR, Tyrer v. United Kingdom judgment of
25.4.1978, Series A no. 26, p. 26, para. 31, Marckx v. Belgium judgment
of 13.6.1979, Series A no. 31, p. 31 para. 41, Airey v. Ireland
judgment of 9.10.1979, Series A no. 32, p. 32, para. 26), it is also
true that when interpreting its provisions, the developments and
commonly accepted standards in the policy of the Member States of the
Council of Europe in the relevant field will have to be taken into
account (Tyrer case, para. 31, verbatim, but also the argument made by
the Court in the Marckx case, para. 41, when it stated that it was
"struck" by specific evolutions in the domestic law of Member States).
In the field of the minimum age of consent for sexual relationships
there does, however, not seem to exist a common standard. A number of
States parties to the Convention still maintain different minimum ages
for homosexual and heterosexual relations, sometimes as far as four
years apart. According to the majority of the Commission "equality of
treatment in respect of age for consent is now recognised by the great
majority of Member States of the Council of Europe" (para 59 of the
Report). Does that statement really reflect the present situation?
The issue of the uniform age in this field was extensively
debated in the British Parliament in 1994, quite some time before the
present application was introduced. A free vote was taken on how far
to lower the age for homosexual relations (at that time still fixed at
21 years). On the basis of the available medical studies and
recommendations, including those of the British Medical Association,
the Royal College of Psychiatrists and the Health Education Authority,
Parliament reduced the age of consent to 18 years. While the argument
mainly ranged between the ages of 16 and 18, the majority in the House
of Commons felt that young men may still be sexually uncertain and
often disturbed between the ages of 16 and 18; they therefore opted for
the higher age. We cannot see how the Commission at the present stage
can determine that such a decision of the British Parliament based as
it were on a careful consideration of all arguments advanced in favour
of the 18 as well as of the 16 year limit, would constitute a
discrimination forbidden by the Convention and not justifiable under
para. 2 of Article 8.
(Or. French)
DISSENTING OPINION OF Mr. J.-C. SOYER
Je n'ai pu me rallier à l'avis de la majorité, cela pour des
raisons qui se trouvent excellemment exprimées par M. Martínez, d'une
part, et MM. Herndl et Békés, dans leurs opinions dissidentes
respectives.
Comme M. Martínez, à la démonstration duquel je me rallie
totalement, je considère que l'on doit tenir compte, dans cette affaire
où les données nationales sont prédominantes, de la marge
d'appréciation de l'Etat concerné.
Comme MM. Herndl et Békés, dont j'adopte sans restriction le
raisonnement, je pense que des données objectives et raisonnables
justifient la distinction que le Parlement britannique a choisi de
retenir pour fixer l'âge à partir duquel les relations homosexuelles
ou hétérosexuelles échappent à la répression pénale.
(Or. French)
DISSENTING OPINION OF Mr. F. MARTINEZ
Je ne partage pas l'avis de la majorité de la Commission. Pour
ma part, j'estime que la présente affaire relève de la marge
d'appréciation qui est l'apanage de l'Etat concerné.
En effet, le Parlement britannique s'est engagé dans la voie
d'une réduction de l'âge légal des relations homosexuelles entre
hommes. Il n'a pas agi à la légère. Loin de là, il a tenu compte des
études faites et d'opinions savantes exprimées sur le point de savoir
quel était le meilleur âge. Après avoir pris en considération les
différentes opinions sur le sujet, le Parlement a voté et décidé à la
majorité de ramener l'âge légal à 18 ans, et non à 16 ans, comme la
minorité parlementaire préconisait.
Je signale que le Parlement britannique a pesé les arguments pour
l'un et l'autre âge et que, par la voie démocratique de la majorité des
voix, il s'est décidé pour l'âge de 18 ans. Pourtant, on dirait,
d'après les paragraphes 59 et 60 du rapport, que les 15 membres
représentant la majorité de la Commission européenne des Droits de
l'Homme, dans cette affaire prennent fait et cause pour la minorité
parlementaire.
Ceci, selon mon avis très personnel, s'apparente à une sorte
d'excès de pouvoir.
C'est vrai que le rapport de la Commission ne s'arrête pas là et
qu'il présente définitivement son opinion sous couvert d'une
discrimination interdite par l'article 14 de la Convention. Mais cela
ne change rien.
Il y a des opinions fondées, selon lesquelles les rapports
homosexuels des adolescents ont un impact plus négatif pour leur
développement émotionnel et psychologique que les rapports
hétérosexuels (voir, par exemple, le paragraphe 23 du rapport de la
Commission). Dans ces circonstances, je pense qu'il y a une
justification objective et suffisante de la part du Parlement
britannique pour fixer un âge différent en fonction de chaque type de
rapport, sans que la Commission européenne des Droits de l'Homme puisse
imposer ses vues à la souveraineté parlementaire, sous couvert de
l'article 14 de la Convention.
Il en va de même pour la différence entre hommes et femmes. Dès
lors que que les filles sont plus précoces que les garçons (voir page 5
du rapport), il n'y a pas lieu de trouver une violation de la
Convention dans le fait que le Parlement britannique a pris en compte
cette différence-là.
Enfin, je tiens à souligner que le Parlement britannique est
mieux placé que les membres composant la majorité de la Commission pour
déterminer ce qui convient le mieux au peuple ou à la société qu'il
représente démocratiquement.
Full & Egal Universal Law Academy