EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 25186/94

Euan Sutherland

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 1 July 1997)

III. OPINION OF THE COMMISSION

A.    Complaints declared admissible

31.   The Commission has declared admissible the applicant's complaints that the fixing of the minimum age for lawful homosexual activities at 18, rather than 16, is in violation of his right to respect for his private life, and is discriminatory.

B.    Points at issue

32.   Accordingly, the issue to be determined is whether there has been a violation of Article 8 (Art. 8) alone or taken in conjunction with Article 14 (Art. 8+14) of the Convention by reason of the prohibition

of consensual homosexual acts between males over the age of 16 but under the age of 18 years.

C.    Articles 8 and 14 (Art. 8+14) of the Convention

33.   Article 8 (Art. 8) of the Convention provides, so far as is material, as follows:

"1.  Everyone has the right to respect for his private ... life

...

2.    There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of health or morals, or for the protection of the rights and freedoms of others."

34.   The applicant asserts, and his assertion is undisputed by the Government, that he is a homosexual who has had sexual relations with other males since he attained the age of 16.  The Government emphasize

that despite the content of the law, the applicant has not been prosecuted or threatened with prosecution and that there is no suggestion that the police or any other domestic authority showed any interest in his sexual activities prior to his eighteenth birthday. Consequently, it is argued that any interference with the applicant's

private life has, in practice, been extremely limited.

35.   The Commission notes that, prior to November 1994 and until the applicant's eighteenth birthday, the effect of the legislation was to prohibit the applicant from engaging in any homosexual act with another

male.

36.   Consistently with the Court's judgments in the Dudgeon, Norris and Modinos cases (the Commission

considers that the maintenance in force of the impugned legislation constituted an interference with the applicant's right to respect for his private life (which includes his sexual life) within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention.  Even though the applicant has not in the event been prosecuted or threatened with prosecution, the very existence of the legislation directly affected his private life: either he respected the law and refrained from engaging in any prohibited sexual acts prior to the age of 18 or he

committed such acts and thereby became liable to criminal prosecution.  The Commission further finds no reason to doubt the general truth of the applicant's allegations as to the distress he felt in having to choose between engaging in a sexual relationship with a like-orientated person of around the same age and breaking the law.

…

38.   The Commission recalls that the compatibility with Article 8 (Art. 8) of the Convention of the setting of a minimum age below which male homosexual acts are prohibited has been considered in the case-law

of the Court and of the Commission.  It is well established by that case-law that there is a legitimate necessity in a democratic society for some restrictions over homosexual conduct, notably in order to provide safeguards against the exploitation and corruption of those who are specially vulnerable by reason of their youth.  As the Court has observed, such restrictions serve the interests both of the "protection of the rights and freedoms of others" and the "protection of morals": "Thus, 'protection of the rights and freedoms of others', when meaning the safeguarding of the moral interests and welfare of certain individuals or classes of individuals who are in need of special protection for reasons such as lack of maturity, mental disability or state of dependence, amounts to one aspect of 'protection of morals'..."(the above-mentioned Dudgeon judgment, p. 20, para. 47)

39.   The Court further observed that it fell in the first instance to the national authorities to decide on the appropriate safeguards required for the defense of morals in their society and, in particular, to fix the age under which young people should have the protection of the criminal law (ibid, p. 24, para. 62).

40.   In its Report in Application No. 7215/75, X. v. the United Kingdom (D.R. 19, p. 66) the Commission found that the interference in the applicant's private life involved in fixing the age of consent at 21 was justified as being necessary in a democratic society for the protection of the rights of others.  The Commission observed that the age limit of 21 might be regarded as high in the present era, especially when contrasted with the current position in other Member States of the Council of Europe, and that it might be seen as inconsistent to have an age of majority applicable to voting and other legal transactions which was lower than the age of consent for homosexual behavior.  However, the Commission held that it could not disregard the fact that the question had been examined by the Wolfenden Committee, whose recommendations had been adopted by Parliament and incorporated in the 1967 legislation;  nor could it ignore the fact that the issue had been before Parliament again and was being then currently re-examined by the Criminal Law Revision Committee and the

Policy Advisory Committee on Sexual Offence.  In addition, the Commission took the view that there was a realistic basis for the respondent Government's opinion that, given the controversial and sensitive nature of the question involved, young men in the 18-21 age bracket who were involved in homosexual relationships would be subject to substantial social pressures which could be harmful to their psychological development.

41.   More recently, the Commission found an Austrian measure, which prohibited a male person over the age of 19 from engaging in homosexual acts with a person of the same sex who was under that age, to be compatible with Article 8 (Art. 8) of the Convention, the Commission deciding that the age of "consent" was lower than in the previous case concerning the United Kingdom and that there was nothing to distinguish

it from that case, save that the Austrian legislation was less restrictive (No. 17279/90, W. Z. v. Austria, Dec. 13.5.92, unpublished; see also No. 22646/93, H.F. v Austria, Dec 26.6.95, unpublished).

42.   The Government contend that the Commission should not depart from this jurisprudence and that the decision of Parliament to fix and maintain a minimum age of 18 for homosexual acts by men is well within

the margin of appreciation open to a Contracting State in serving the interests of the protection of the rights of others and of morals.

43.   The applicant, while contesting these submissions of the Government, has focused his principal argument on the alleged discriminatory treatment of homosexual men, resulting from the difference in the minimum age for lawful private homosexual and heterosexual relationships, and the difference of treatment between

homosexual men and women.

…

45.   Article 14 (Art. 14) of the Convention provides as follows:" The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

46.   The applicant contends that the margin of appreciation is particularly narrow in cases involving an obligation to refrain from interference rather than the imposition of positive obligations on the state, and contends that no justification at all has been advanced for the different treatment of male and female homosexuals, and that the justifications tendered for the difference between homosexuals and heterosexuals are inadequate and fall outside the margin of appreciation.

48. …"a difference of treatment is discriminatory, for the purposes of Article 14 (Art. 14), if it 'has no objective and reasonable justification', that is if it does not pursue a 'legitimate aim' or if there is not a 'reasonable relationship of proportionality between the means employed and the aim sought to be realized'.  Moreover the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment" (Eur. Court HR, Gaygusuz v. Austria judgment of 16 September 1996, Reports 1996, para. 42).

50…  The different minimum ages for lawful sexual relations between homosexuals and heterosexuals are a difference based on sexual orientation.  In terms of Article 14 (Art. 14) of the Convention, it is not clear whether this difference is a difference based on "sex" or on "other status".  The Commission notes that the Human Rights Committee set up under the International Covenant on Civil and Political Rights has considered that sexual orientation is included in the concept of "sex" within the meaning of Article 26 (Art. 26) of that Covenant, and that it did not therefore need to decide whether sexual orientation was included in the concept of "other status" (Toonen v. Australia, CCPR/C/50/D/488/1992).

51.   The Commission for its part considers that it is not required to determine whether a difference based on sexual orientation is a matter which is properly to be considered as a difference on grounds of "sex"or of "other status".  In either event, it is a difference in respect of which the Commission is entitled to seek justification.

52.   The Commission notes that it is not contested that the applicant, as a young man of 17 years of age who wished to enter into and maintain sexual relations with a male friend of the same age, was in a "relevantly similar situation" to a young man of the same age who wished to enter into and maintain sexual relations with a female friend of the same age.

53.   The Commission must accordingly next determine whether the difference in treatment of these categories pursued a legitimate aim.

55…  The third question for the Commission is whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be realized, and it is in this connection that the Commission must bear in mind the margin of appreciation which the respondent enjoys in assessing whether and to what extent differences justify a different treatment.

57.   The Commission is of the opinion that, regardless of whether the difference in treatment of heterosexuals and homosexuals is based on "sex" or "other status", given that it impinges on a most intimate aspect of affected individuals' private lives, the margin of appreciation must be relatively narrow.

59…Since 1981 there have been further important developments in professional opinion.   In particular, as noted above, the Council of the British Medical Association (BMA), which in 1981 gave evidence to

the Policy Advisory Committee that boys and girls of the same age did not possess the same degree of emotional and psychological maturity, observed in 1994 that most researchers now believed that sexual

orientation was usually established before the age of puberty in both boys and girls and referred to evidence that reducing the age of consent would be unlikely to affect the majority of men engaging in homosexual activity, either in general or within specific age groups. The BMA Council concluded in its Report that the age of consent for homosexual men should be set at 16 since the then existing law might inhibit efforts to improve the sexual health of young homosexual and bisexual men.  An equal age of consent was also supported by the Royal College of Psychiatrists, the Health Education Authority and the National Association of Probation Officers as well as by other bodies and organizations concerned with health and social welfare.   It is further noted that equality of treatment in respect of the age of consent is now recognized by the great majority of Member States of the Council of Europe.

61.   In contending that there remains a reasonable and objective justification for maintaining different ages of consent for homosexual males and for heterosexuals, the Government place considerable reliance on the fact that the issue was recently and fully debated by a democratically elected Parliament which, on a free vote, decided to reduce the minimum age of consent to homosexual acts to 18 but rejected a proposal to assimilate the age of consent to that for heterosexuals.

63.   Two such principal arguments emerge from the speeches in Parliament and are adopted and repeated in the Government's submissions.   In the first place it is argued that certain young men between the ages of 16 and 18 do not have a settled sexual orientation and that the aim of the law is to protect such vulnerable young men from activities which will result in considerable social pressures and isolation which their lack of maturity might cause them later to repent:  it is claimed that the possibility of criminal sanctions against persons aged 16 or 17 is likely to have a deterrent effect and give the individual time to make up his mind.  Secondly, it is argued that society is entitled to indicate its disapproval of homosexual conduct and its preference that children follow a heterosexual way of life.

64.   The Commission does not consider that either argument offers a reasonable and objective justification for maintaining a different age of consent for homosexual and heterosexual acts or that maintaining such a differential age is proportionate to any legitimate aim served thereby.  As to the former argument, as was conceded in the Parliamentary debates, current medical opinion is to the effect that sexual orientation is fixed in both sexes by the age of 16 and that men aged 16-21 are not in need of special protection because of the risk of their being "recruited" into homosexuality. Moreover, as noted by the BMA, the risk posed by predatory older men would appear to be as serious whether the victim is a man or woman and does not justify a differential age of consent.  Even if, as claimed in the Parliamentary debate, there may be certain young men for whom homosexual experience after the age of 16 will have influential and potentially disturbing effects and who may require protection, the Commission is unable to accept that it is a proportionate response to the need for protection to expose to criminal sanctions not only the older man who engages in homosexual acts with a person under the age of 18 but the young man himself who is claimed to be in need of such protection.

65.   As to the second ground relied on - society's claimed entitlement to indicate disapproval of homosexual conduct and its preference for a heterosexual lifestyle - the Commission cannot accept that this could in any event constitute an objective or reasonable justification for inequality of treatment under the criminal law.  As the Court observed in its Dudgeon judgment in the context of Article 8 (Art. 8) of the Convention:'Decriminalisation' does not imply approval, and a fear that some sectors of the population might draw misguided conclusions in this respect from reform of the legislation does not afford a good ground for maintaining it in force with all its unjustifiable features." (above-mentioned Dudgeon judgment, p. 24, para. 61)

66.   Consequently, the Commission finds that no objective and reasonable justification exists for the maintenance of a higher minimum age of consent to male homosexual, than to heterosexual, acts and that the application discloses discriminatory treatment in the exercise of the applicant's right to respect for private life under Article 8 (Art. 8) of the Convention.

CONCLUSION

67.   The Commission concludes, by fourteen votes to four, that in the present case there has been a violation of Article 8 of the Convention, taken in conjunction with Article 14 (Art. 8+14) of the Convention.

H.C. KRÜGER                          S. TRECHSEL

Secretary                            President

to the Commission                     of the Commission

(Or. French)

DISSENTING OPINION OF MM. K. HERNDL AND I. BÉKÉS

We regret that we cannot concur with the majority's view that by maintaining a different minimum age for lawful private homosexual and heterosexual relationships - 18 years for the former vs. 16 years for the latter - the United Kingdom should be regarded as being in violation of Article 8 of the Convention, taken in conjunction with its Article 14.

The issue at stake in the present case is exclusively whether a different treatment of homosexual and heterosexual relations, insofar as the minimum age of consent is concerned, is permissible under the

Convention or not.

While the majority seem to recognize that some need for the protection of young male homosexuals (below the statutory age of 18 under present law in the United Kingdom) may still exist, as there may be certain young men for whom homosexual experience after the age of 16 (but under the age of 18) will have influential and potentially disturbing effects, they find that maintaining the different minimum age "is not proportionate to any legitimate aim served thereby" (para. 64 of the Report).

So far the Commission has consistently held…that setting a higher minimum age for lawful homosexual relationships than for heterosexual relationships is not in violation of the Convention. Such type of different treatment was regarded by the Commission as having "an objective and reasonable justification in the criterion of social protection"… A number of States parties to the Convention still maintain different minimum ages for homosexual and heterosexual relations, sometimes as far as four years apart.  According to the majority of the Commission "equality of treatment in respect of age for consent is now recognized by the great majority of Member States of the Council of Europe" (para 59 of the Report).  Does that statement really reflect the present situation?

The issue of the uniform age in this field was extensively debated in the British Parliament in 1994, quite some time before the present application was introduced.  A free vote was taken on how far to lower the age for homosexual relations (at that time still fixed at 21 years).  On the basis of the available medical studies and

recommendations, including those of the British Medical Association, the Royal College of Psychiatrists and the Health Education Authority, Parliament reduced the age of consent to 18 years.  While the argument mainly ranged between the ages of 16 and 18, the majority in the House of Commons felt that young men may still be sexually uncertain and often disturbed between the ages of 16 and 18; they therefore opted for the higher age.  We cannot see how the Commission at the present stage can determine that such a decision of the British Parliament based as it were on a careful consideration of all arguments advanced in favor of the 18 as well as of the 16 year limit, would constitute a discrimination forbidden by the Convention and not justifiable under para. 2 of Article 8.