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Allen: Sexual Offences Prosecutions in the Late Twentieth Century

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Lesbianism and the Criminal Law

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Abstract

Allen marked a shift to prosecuting lesbians for sexual offences, a legal response to the growth of lesbian visibility. In 1995, the teenage defendant was imprisoned for indecent assault offences arising from her relationship with a thirteen-year-old girl. However, the shift was less radical than it might first appear: Allen’s prosecution was broadly contemporary with others reminiscent of female husband cases including those of Jennifer Saunders and Kelly Trueman. Further, although the law was formally equal for women and men accused of indecently assaulting females, sentencing approaches were very different. In particular, lesbianism was considered a source of corruption and embarrassment, seen as peculiarly aggravating factors.

Parliament, meanwhile, was moving in a more liberal direction. The Sexual Offences Act 2003 signalled a fundamental change in approach as it aimed to implement new principles of gender neutrality and equality. The chapter ends by considering how far it did so and its particular impact upon regulation of sex between women.

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Notes

  1. 1.

    While some of the defendants discussed here were working-class, that was by no means true of all of them. In particular, the chapter later considers the prosecution of teachers : defendants in a normatively middle-class profession.

  2. 2.

    Although the Criminal Appeal Reports headnote states there were two counts and the Criminal Law Review casenote repeats this, the judgment specifies one.

  3. 3.

    Because she was under twenty-one, Allen was sentenced to detention in a young offenders’ institution rather than to imprisonment in an adult prison .

  4. 4.

    A parallel clause, section 15, governed indecent assault upon a male.

  5. 5.

    To provide a little context for these figures, in 1994 total recorded indecent assaults upon a woman exceeded 17,000 while by 2003, they exceeded 25,000 (Home Office 2006).

  6. 6.

    This terminology is further considered, and subsequent similar cases examined, in Chap. 8.

  7. 7.

    Histories of this period include Weeks (1981, 2016), Jivani (1997), and Jennings (2007).

  8. 8.

    The change would later be reflected in DSM-III (American Psychiatric Association 1980). The influence of this manual extends internationally: it is widely used in the United Kingdom, for example, where in addition to its clinical use, it is regularly cited before the courts on issues of mental illness.

  9. 9.

    Beth E. Schneider (1992) identified six areas in which AIDS affected lesbians’ lives: through their friendships and work with gay men; through HIV infection; through debates around lesbian sexual practices; in concerns around sperm donation; through work—greater homophobia in paid employment , plus unpaid caregiving responsibilities; and politically.

  10. 10.

    By contrast, the courts were not consistently hostile when dealing with non-sexual offences. For example, in 2000 a police officer who had lied about a car accident in order to conceal her lesbian relationship was found not guilty by a jury of perverting the course of justice. The judge , Paul Downes, then criticised the homophobic attitudes of her colleagues as ‘alarming’ (Flanagan and McGowan 2000).

  11. 11.

    A snapshot of the evolution in House of Commons and House of Lords attitudes to same-sex relationships can be seen in the ‘gay age of consent’ debates (Waites 2003).

  12. 12.

    In fact, it was not clear whether the legislation did so and no cases were brought to test its scope. The content of sex education was legally a matter for a school’s governors, not the local authority.

  13. 13.

    The argument in relation to economic damage is itself interesting: it suggested that men who choose a gay lifestyle and do not marry thereby deny a woman economic support (p. 103).

  14. 14.

    The case received extensive press coverage (e.g. Sun 1991a, b; M. Sharpe 1991a, b; Guardian 1992). There is a full transcript of the trial (A.M. Smith 2000). See also the discussions in Smith (1995, 1998) and Sharpe (2018).

  15. 15.

    The law at this time granted anonymity only to rape complainants. As the charge against Saunders was indecent assault , the names of the complainants were reported in full. However, in line with current law and practice, only initials are used to identify them here. Similarly, I have randomly allocated initials to identify complainants in other cases where this was not done in reports.

  16. 16.

    The Court of Appeal also referred to, but gave no details of, a social inquiry report (Smith 2000: Court of Appeal judgment).

  17. 17.

    This is not to suggest that all prosecutions of homosexual men for age of consent offences , still less all such offences, involved breach of trust, absence of consent, or inducements. Rather, it suggests that the latter were more likely to reach the Court of Appeal and/or to be selected for reporting.

  18. 18.

    While many lesbians are of course mothers, they would have had difficulty being regarded by the criminal courts as good mothers. (For a stark illustration of the division and its effect upon punishment , see the magistrates’ interviews in Carlen (1993)). Similarly, the willingness to imprison mothers for non-sexual offences is a matter of national and international concern (Gerry and Harris 2015).

  19. 19.

    The consultation paper asserted that ‘the law should be based on a public morality that protects the individual from danger, harm, fear or distress’ (Sexual Offences Review 2000, sect. 6.2.4).

  20. 20.

    For example, the group’s summary of the 2003 Act made no references to lesbians (Stonewall 2003).

  21. 21.

    Such feminist critiques substantially pre-dated the Bill (e.g. Mackinnon 1987, pp. 35–38; Naffine 1994, pp. 24–29).

  22. 22.

    For example, a woman was convicted of outraging public decency for ‘romping half-naked’ with another woman in a park (Daily Mirror 2016).

  23. 23.

    For assault by penetration , the starting point was four years’ imprisonment ; for sexual assault involving contact between the offender’s naked genitalia and a naked part of the victim’s body, two to three years; and for contact with the victim’s naked genitalia using something other than genitalia , twenty-six weeks to eighteen months. Where genital contact was not involved, the starting point was a community order.

  24. 24.

    There are numerous examples (e.g. Chapman 2009; Daily Mirror 2010, 2011, 2013; Aspinall 2018; BBC News 2014; Daily Star 2013; Twomey 2016); another case emphasised the defendant was a social worker/youth worker, although the relationship did not occur in the course of her work (Willey 1999). Exceptions include Leicester Mercury (2000), Hawken (2014), and Sharman (2018) whose subtitle refers to a ‘dangerous predator’.

  25. 25.

    This was not an isolated incident in contemporary parliamentary debate. Discussing the debates on repeal of section 28 and equalisation of the age of consent , Stychin comments that while young gay men were desexualised and young heterosexuals of either sex hypersexualised, ‘[y]oung lesbians, for the most part, seem not to exist at all’ (2003, p. 36).

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  1. Law School, The Open University, Milton Keynes, UK

    Caroline Derry

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Derry, C. (2020). Allen: Sexual Offences Prosecutions in the Late Twentieth Century. In: Lesbianism and the Criminal Law . Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-35300-1_7

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