The Repression of Swingers Part 2

The Repression of Swingers in Early 21st Century Britain
Mark Roberts
Sociological Notes No. 28
ISSN 0267-7113, ISBN 1 85637 591 9

2 SWINGERS AND THE LAW

2.1 The dead hand of the state

The market is not at fault for the shoddy conditions that British swingers – and swingers visiting from overseas – are forced to endure. Demand for swingers’ establishments is high, rising and would expand much further in free market conditions. Swingers who seek to exercise their sexual freedom of choice – and entrepreneurs who seek to satisfy that demand – face obstruction from the state

British swingers are persecuted by laws at national and local level; they are persecuted by a press that does not recognise sexual acts as private, even in the home; and though they have no-one to speak on their behalf they are the victims of a campaign run by a well-funded NGO that jeopardises its professional and scientific reputation in its zeal to condemn them.

Their persecution violates two articles of the European Convention on Human Rights and stands in sharp contrast to the civil liberties now taken for granted by another sexual minority, gays.

The British government is responsible to a greater or lesser degree for every leg of the triad of persecution of swingers (law, press and bigotry); as well as the non-enforcement of the European Convention of Human Rights, despite its importation into British law by this very government; and the cruel inconsistency that allows gay men sexual carte blanche but criminalises the same activities when middle-class women are involved.

2.2 Legal repression of swingers

There was a time, before the Second World War, when the law reflected a wide social consensus in severely circumscribing permissible sexual conduct. The belief that it is appropriate for the state to regulate personal sexual behaviour has gradually withered. Piecemeal reforms have expanded the sexual space where the law is rightly silent, but more to the benefit of some sexual minorities than others. The most obvious beneficiaries have been gays. Those most obviously still persecuted are prostitutes. But even now in the C21st heterosexual couples who seek the thrill of recreational sex are also repressed, in some cases by archaic laws over 250 years old.

Under the Sexual Offences Act 1956 s33 it is an offence to run a brothel and case law has defined a brothel as”a place resorted to by persons of opposite sexes for the purpose of illicit intercourse”.

Prostitution does not have to occur. This means the authorities can deem a venue where swinging occurs to be a brothel and illegal. It does not even need to be a regular event. The Metropolitan Police have within the last 10 years threatened prosecution for a projected one-off event that was not even a dedicated sex party.

Under the same law

“in some circumstances group sex acts between heterosexuals might involve the commission of an offence…”

according to a House of Commons Research Paper. Under case law dating from only 1983 premises where more than one woman offers herself as a participant in indecent physical acts with men is also a brothel, even if full intercourse does not occur. So even swingers parties where there is no penetrative sex can be deemed brothels.

In fact it is usually the Disorderly Houses Act of 1751 that is used in prosecutions because its one unrepealed section allows the person in charge of the premises at the time to be charged as the brothel keeper regardless of who actually owns either the premises concerned or any entity renting them for the occasion. This should not be confused with the common law offence of Keeping a Disorderly House, which is also used against sexual adventurers.

Under the licensing laws it has been an offence to allow a “brothel” on licensed premises. The new Licensing Act 2003 changes this offence to one of “allowing disorderly conduct on licensed premises”.

It will be interesting to discover whether the police and the Crown Prosecution Service regards this as a liberalisation of the law or a change allowing them and the courts a more arbitrary discretion over what is prosecutable. Somehow I think I know the answer.

Even the traditional charge used against pimps – living off immoral earnings has been used as recently as 1998 to fine the proprietor of a swinging club.

Politicians or Chief Constables have the legal tools to clamp down on swingers whenever they perceive it to be in their interests, as they did in 1989, 1994, 1996 (when a threatened prosecution forced the cancellation of the Sex Maniacs’ Ball) and 1998.

For swingers the cumulative impact of these laws is devastating. Places where swingers congregate can attract prosecutions on seven different counts – two different definitions as a brothel under the Sexual Offences Act 1956; the Disorderly Houses Act 1751; at common law for keeping a disorderly house; under the Licensing Act for either allowing a brothel or for serving drinks without a licence (even free drinks are deemed to be included in the entrance price) and again under the Sexual Offences Act 1956 for living off immoral earnings.

These laws do not need to be applied with constant rigour. The legal uncertainty, the ever-present threat from a capricious state, destroys entrepreneurs’ ability to raise capital for swinging-related establishments and condemns British swingers to the shebeens. This violates the principle of certainty that enjoins a clear distinction between what is legal and what is criminal, what will be prosecuted and what will not, that is integral to the Rule of Law.

In addition to headline repression there is a dense tangle of regulatory repression at local government level that has been created by statute. Although local authorities are allowed to licence “sex establishments”, a licence does not protect an establishment from prosecution as a brothel or disorderly house.  In addition, local authorities can and do set the appropriate number of sex establishments for their area at nil.

Authorities are also at liberty to set their own application fees for sex establishment licences, a situation that leads to prohibitive charging. Some London boroughs charge £4,000. The London Borough of Sutton charges £8,400; Southwark £15,000; Merton £18,615; while the City of Westminster demands £28,531. And this is merely to consider an application.

A swinging club would also need an Entertainments Licence, probably a Change of Use certificate and an alcohol licence, all since the Licensing Act 2003 at the whim of its local authority.

The Labour government’s much heralded sexual offences legislation covers a wide area. Among other things it legalises gay cottaging (sex in public lavatories) when it does not cause offence to others and reduces the penalties for bestiality from life to two years. In May 2003 the Bill was amended to allay nudists’ fears that it would restrict their lifestyle.

The BBC reported that the Bill also legalised homosexual group sex.

“There’s nothing to stop heterosexual orgies, but take women out of the equation and you’ve currently got yourself a law suit…The new law takes a “gender neutral” approach to sex, granting equal rights to homosexuals and heterosexuals.”

Unfortunately while it is true that gay group sex is indeed legalised, it is equally true that heterosexual orgies are not. The new law merely repeals the old one that made gay sex legal in private only. It does not, as the BBC suggests, positively create a level playing field between gays and heterosexuals. The position of heterosexuals is untouched and the existing impediments crystallised in the case law decisions Winter v Woolfe 1931 and Kelly v Purvis 1983 remain. (In Winter v Woolfe a woman was convicted of keeping a brothel for allowing Cambridge University students to frolic with local girls – who were not prostitutes – on her premises, without charging. Kelly v Purvis concerned masseurs masturbating clients).

Labour has set its face against any liberalisation of the law regarding swinging. On 20 June 2002 I wrote to the Home Secretary asking him to “unambiguously legalise” swinging in the forthcoming Bill. His official replied that the Review that preceded the Bill had not had prostitution within its remit and that therefore the offences relating to brothels had not been reviewed.  Thus an omnibus bill that was liberalising towards favoured sexual minorities such as gays and zoophiles resolutely ignored the plight of swingers.

Consequently, although most of the Sexual Offences Act 1956 is repealed by the 2003 Act, the offences created by Sections 33 (keeping a brothel), 34 (landlord letting premises as brothel) and 35 (tenant letting premises as a brothel) remain on the statute book, as does the case law defining a brothel so widely it covers practically all swinging activity.

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