A commentary and resource on Law and Sexuality by Professor Chris Ashford and guests
The Home Office, the Sunday Times (£) reported this week, have got themselves into a bit of a pickle when it comes to their same-sex marriage proposals. They report that:
‘Civil servants have been considering the intricacies of gay sex for months and have taken evidence from sex experts and gay rights organisations in an attempt to define consummation between two women and between two men.’
Gay Star News picked up the story later in the week, and reproduces much of the story for those who don’t have access via the ST paywall. Both pieces report that ‘ministers have opted to leave the matter to judges to define’. Which sounds like some decision, until you go back to the original proposals.
Speaking of which, back in March of this year – when the Government published their initial proposals – I raised the issue of consummation as a potential difficulty.
The original proposals stated that: ‘Specifically, non-consummation and adultery are currently concepts that are defined in case law and apply only to marriage law, not civil partnership law. However, with the removal of the ban on same-sex couples having a civil marriage, these concepts will apply equally to same-sex and opposite-sex couples and case law may need to develop, over time, a definition as to what constitutes same-sex consummation and same-sex adultery.’
Nine months ago I commented that: ‘This is a polite way of saying that the law tends to think of consummation in terms of penile/vaginal penetration (although no orgasm or ejaculation is needed). This paragraph in the consultation is the equivalent of lifting a giant rug, shoving half-baked proposals under it, and hoping that nobody will notice. We did. This could have significant implications for different-sex marriage and the Government knows that but doesn’t want to get into that debate. We should.’
I’m rather puzzled what those civil servants have been doing for the last few months as we seem back to precisely the same position. The rug remains on standby, the law likely to be fudged. The only winners of such a fudge will be the lawyers able to now spin-out cases of annulment. Academics will have a nice new exam or coursework question, and topic for tutorial discussions.
As I’ve argued before, recent decades have witnessed the careful de-sexing of the homosexual, as a right-based narrative has come to dominate legal discourse over one of sexual liberation. This marriage proposals carry a real risk of reminding people that people choosing to enter into same-sex marriage may also want to have sex. The idea that “I don’t care what people do, so long as it’s behind closed doors” (a position first heard in public policy terms via the Parliamentary debates in the wake of the 1967 Sexual Offences Act) is directly challenged by the necessity to understand what people do.
This necessitates a benchmarking of sexual identity against sexual acts. It seeks to establish a homonormative understanding of sex. For ‘gay’ men, presumably this means buggery. Anal penetration by one, by the other. What of a couple of that prefer sex toys? Would that be enough. What of – shock horror – the gay male couple who actually don’t enjoy anal sex, and don’t engage in it. Would oral sex be enough? Would frottage? Presumably not, as the government rationale is to put ‘heterosexual’ and ‘homosexual’ marriage on the same footing. So buggery it is. Well, if the courts decide.
The problem is it turns out that some homosexuals are rather inconveniently women. They don’t have a penis. Civil Service brain can not compute. Do we therefore have different definitions for lesbians to men. Does there need to be some form of penetration? Will our illustrious judges find themselves pondering how far a tongue must penetrate a vagina in order for it to amount to penetration? Will it count if a dental dam is deployed?
Ah, the legal joys to come thanks to a failure to take a decision now. The law can not avoid this debate. The Government is simply kicking the can down the road in a hope that nobody will notice. They are failing us, and we shouldn’t let them get away with it.