Cottaging: History, Legalities in England & Wales
Cottaging : Homosexuality, a very short history.
Homosexuality was long frowned upon throughout the world and in the United Kingdom. The Buggery Act of 1533 made it a capital offence punishable by death. Although the 1533 act was repealed and replaced by the Offences against the Person act 1828, it still remained an offence punishable by death. In fact, the last two men to be executed were hanged on 27 November 1835 having been found having consenting sex in private. The world has certainly moved on since then.
Up until the end of the first half of the 20th century, homosexual activity could still result in a prison sentence. At that time, it was widely thought that homosexuality was a disease or illness which could be “cured”.
It was not until the Sexual Offences Act 1967 that homosexual acts between consenting men over 21 years of age in private was no longer a criminal offence.
Homosexuality would not be decriminalised in Scotland until 1980 and 1982 in Northern Ireland.
Interestingly, lesbian relationships between two females have never been illegal.
What is cottaging?
Cottaging is a slang term, originally used in the gay community but now in wider public use which refers to the practice between homosexual (gay) men who meet anonymously in and around public toilets with a view to having sex either there or elsewhere.
The name comes from self-contained toilet blocks (which often have men’s one end and ladies at the other) and which often resemble small self-contained houses, “cottages”. The phrase is used predominantly in the United Kingdom although interestingly, in the United State of America lavatories used for this purpose are called Tea Rooms.
Historically, public sex, whether heterosexual or gay would usually result in a charge of gross indecency. Homosexual/gay sex was legalised with the Sexual Offences Act 1967 which allowed the previous illegal homosexual intercourse between consenting adults provided it was done in private between consenting parties.
However although public lavatories may appear to be “private”, for the purposes of the Sexual Offences Act, they were not classed as private. This was clarified in the 2003 Sexual Offences Act which makes “engaging in sexual activity in a public lavatory” illegal. Now, it could not be clearer.
Sexual acts in public toilets are still likely to remain illegal throughout the United Kingdom and many other parts of the world.
Although for the purposes of the legislation, public lavatories are not classed as “private” obviously, they have closed doors and therefore makes prosecuting such offences and enforcing the law somewhat difficult for the police.
The police therefore, in areas where this is prevalent, have in the past used undercover police posing as homosexuals entice other men to approach them to sex. This would often lead to arrest and a charge of indecent assault. However the practice has virtually stopped when after one particular matter went to court, the evidence was that the police officer had invited the other person to touch them (with a view to bringing the assault charge) and because of the invitation, there was no assault.
Now therefore it is more common for people who have committed the offence to be arrested for importuning.
Importuning and soliciting generally amount to the same thing. Importuning is the solicitation of a person for a sexual purpose. Remember that prostitution itself is not illegal in the United Kingdom. What is illegal is living off immoral earnings, running a brothel, and soliciting. Soliciting is the offence by a prostitute (male or female of attempting to obtain clients in the street or public place.
In the heterosexual world this is called curb crawling whereby a person drives slowly around an area usually known for prostitution and sexual activity and approach other people with a view to having sex for them. It is generally considered to be a public nuisance because often, innocent members of the public are approached the sex which can be embarrassing for them. It has been an arrestable offence in the United Kingdom since 2001. The police will collect intelligence on numberplates and prosecute persistent offenders although a single incident is unlikely to lead to charge and prosecution.
The word Cruising is largely used in the gay community for the same purpose although includes not just doing so in a vehicle would also walking, and doing the same on the Internet and social media for the same purpose. Although curb crawling whether for heterosexual or gay purposes is an offence, and soliciting and importuning our offences, it is unlikely that doing the same through social media or the Internet would constitute an offence.
Charge and Penalty
There is no offence of cottaging as such, what a person would be charged with is a breach of the provisions of the Sexual Offences Act 2003, s71 sex in a public lavatory. http://www.legislation.gov.uk/ukpga/2003/42/section/71
Couples who have engaged in the activity could still face prosecution whether they were caught in the act or not provided the prosecution could prove beyond all reasonable doubt that the activity had taken place.
It carries a prison sentence of up to 6 months and/or a fine of up to £5000. The offence is triable either way, either summary or indictment, Magistrate’s Court or Crown Court.
Legal rights on Arrest
Anyone who was arrested for “cottaging” under section 71 of the Sexual Offences act 2003 or any other offence but that matter has various rights.
A person cannot be charged unless they have been arrested and if they are arrested the police must make it clear to them and they are under arrest and caution them with regard to anything they may say being used in evidence.
If they are charged with an offence of cottaging, it can only be done at the police station and it must be made clear what they have been charged with.
A person is under no duty to help the police with their enquiries and they are quite at liberty to refuse to attend the police station or go with the police or answer any enquiries unless they have been arrested. Even then, it is possible to reply to any questions with a simple “no comment”.
If a person is arrested they are entitled to have a solicitor with them when they are interviewed. If they do not have a solicitor who they wish to be with them, police will arrange for the duty solicitor to be present. A person does not have to have a solicitor if they don’t wish to have one but they are entitled to have one if they wish and the police cannot refuse. If the police do refuse, then the interview and the detention is unlawful.
The only obligation on anyone arrested for cottaging is to give their name and address although the police may ask for proof of that.
There is no requirement to give the name of an employer or HIV status or names of friends or relatives or any other information. If a person is HIV-positive however and for any reason there need to be any medical investigations or tests taken, they would be well advised to disclose their HIV status to prevent any allegations of intentional contamination or infection.
About the author:
This article was written by a member of the Expert Answers legal advice team. Expert Answers provides online legal advice on all aspects of UK Law to users in the United Kingdom.