Sexual Risk

Imagine some futuristic dystopian state where permission must be sought from the authorities if you plan to have sex. You’ll remember that in George Orwell’s 1984 Julia and Winston have to sneak away to an unpoliced proletarian hideout in order to consummate their illegal relationship. You may remember that in Aldous Huxley’s Brave New World, by contrast, sex was positively encouraged, between all and any (up to a point) and that enhancing it with drugs was also fab as far as the state was concerned. Only using it for the purposes of reproduction was forbidden. Doubtless there are many other dystopias where the state interferes in the free sexual association of individuals; it seems to be a good marker of when the state is getting above itself and interfering too much with our freedoms.

But surely, you’re thinking, in reality, the state could only prevent such freedom if it was in order to punish some grievous misconduct. Maybe rapists and child molesters can be placed under these strictures, but not ordinary citizens innocent of any criminal wrong-doing. Sadly, you’re wrong. Consider the plight of the recently named man reported upon here. Here is a man who was acquitted of a rape, but during whose trial it emerged that he was ‘interested in sado-masochistic sex’.  The police (guided and advised, presumably, by the Crown Prosecution Service) used their powers under the Anti-Social Behaviour, Crime and Policing Act 2014, to apply to the Magistrates’ Court for a ‘sexual risk order’, which now require the man to give the Police twenty four hours’ notice of any plans he has to have sex. Not unnaturally, it has ruined his sex life.

Now, if you are a little surprised by this, if like me, you are a wafty, lefty liberal pinko who has been fed some kind of bleeding-heart nonsense about people having certain rights that the state is prevented from interfering with, at least in all advanced civilised states, if you think that frankly, it doesn’t matter how cross the Police is about somebody having been acquitted, once they have been acquitted of a crime then that is an end of the matter and they should be free from all further interference, then it appears that you, like me, are way out of date.

The government guidance for ‘Sexual Risk Orders’ reads as follows:

Sexual Risk Orders: A Sexual Risk Order (SRO) can be made by a court in respect of an individual who has done an act of a sexual nature and who, as a result, poses a risk of harm to the public in the UK or children or vulnerable adults abroad.

For a SRO to be imposed, the individual does not need to have committed a relevant (or any) offence. An SRO may impose any restriction the court deems necessary for the purposes of protecting the public from harm (this includes harm from the defendant outside the United Kingdom where those to be protected are children and vulnerable adults), and requires the individual to notify the police of their name and address, including where this information changes. An SRO is available on free-standing application to a magistrates’ court by the police or National Crime Agency.

This is an example of a ‘civil restraint order’ – that is to say, it is not of itself part of the criminal law, and nothing that is required to be proved needs to be proved to the criminal standard. But breaching such an order is itself a criminal offence, and can result in prison of up to five years or a fine of £5,000 or both.

Notice the curious connection between the ‘act of a sexual nature’ – not a criminal act, not one of which the recipient of the order can be shown to be guilty, but just an act of a sexual nature – and the ‘result’ – which means they pose a risk of harm to the public in the UK.

In the interests of balance, I want to think carefully about this. I don’t want to swallow the slight sensationalism of the article and overlook what may be unreported circumstances here. I have been told that these orders ‘can be useful in the right circumstances’ but I have struggled to imagine what they may be.

In the case linked to above, the ‘act of a sexual nature’ seems to have been – as the jury found – ‘consensual sex with a woman who later decided to complain that she had been raped’. Is it the case then, that having been unable to achieve the conviction that they required, having failed to convince the jury beyond reasonable doubt, the police (or whoever guides or advises them) instead laid their evidence before a magistrate who concluded that on the balance of probabilities the woman was in fact raped, and that this was enough to persuade them that the order should be made.

This is, I suppose plausible, but leaves me with distinct qualms about the requirement to prove criminal matters beyond reasonable doubt. Here is someone facing serious legal sanctions not because anyone is sure that he did something, but because they think it is more likely than not.

Could it be, instead, that the magistrate accepts the verdict of the jury that the man is not guilty, but is troubled by his alleged interest in ‘sado-masochistic sex’, and fears that, again, on the balance of probabilities, this interest poses a risk of harm to the public. This would be even more troubling. As the man concerned points out, SM has become something of a mainstream matter with the success of the book ‘50 shades of gray’ however unimpressed we might be by its quality as literature, or the vulgarity of its adherents’ tastes, however unexcited we might be by such practices ourselves. Those acquainted with the notorious criminal case of R v Brown, where a group of men consented to be physically abused by each other to an extreme that was considered grievous bodily harm and that their consent was irrelevant know that many authorities believe that it would be decided differently today – that current sexual mores hold that what consenting adults get up to in private is a matter entirely to them.

But notice that the guidance only states ‘a risk of harm’ and does not concern itself with whether the harm can be welcomed. In that sense, the magistrate discerning (possibly correctly) that this man may be interested in inflicting say a spanking on another person would have no option but to be prepared to grant an order.

The question of what it is reasonable to put in the order is the biggest concern of all, and finer legal minds than mine have regarded this particular order as outside of what is permitted. Note that ‘an SRO may impose ‘any restriction … necessary’. Is it really a restriction to require a man to report his intention to have intercourse to the police? That’s a requirement, isn’t it? It forces him to do something, rather than preventing him – in the jargon, it is mandatory instead of prohibitory. It was in the view of the drafters of this legislation that, for example, men could be prevented from travelling overseas for sex tourism, or stopped from going near a particular person’s house.

The European Convention of Human Rights – of which incidentally, we won’t be free just by leaving the EU, and nor should we wish to be, whatever the new Prime Minister may feel – requires that any interference with human rights – in this case Article 8, the right to a private life – should be a proportionate means to achieve a legitimate end. The end in this case – keeping people safe from dangerous sex pests – is of course legitimate. But could it be achieved by some means other than requiring a man to inform the police at least 24 hours before he has sex?

I rather think it could.

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