Policing Sex

Paul Johnson, Derek Dalton, Paul Johnson, Derek Dalton

• Publisher: Routledge
• Year: 2012
• eBook ISBN: 9781136323140
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

This collection focuses attention on an important but academically neglected area of contemporary operational policing: the regulation of consensual sexual practices. Despite the high-level public visibility of, and debate about, policing in relation to violent and abusive sexual crimes (from child sexual abuse to adult rape) very little public or scholarly attention is paid to the policing of consensual sexual practices in contemporary societies. Whilst 'sexual life' is commonly understood to be a matter of 'private life' that is beyond formal social control, this book shows that policing is implicated in the regulation of a wide range of consensual sexual practices. This book brings together a well known and respected group of academics, from a range of disciplines, to explore the role of the police in shaping the boundaries of that aspect of our lives that we imagine to be most intimate and most our own. The volume presents a 'snap shot' of policing in respect of a number of diverse areas – such as public sex, pornography, and sex work – and considers how sexual orientation structures police responses to them. The authors critically examine how policing is implicated in the social, moral and political landscape of sex and, contrary to the established rhetoric of politicians and criminal justice practitioners, continues to intervene in the private lives of citizens.

It is essential supplementary reading for courses in criminology, law, policing, sociology of deviance, gender and sexuality, and cultural studies.

Part 1
The contemporary landscape
of policing sexuality

1
THE CHANGING LANDSCAPE OF POLICING MALE SEXUALITIES: A MINOR REVOLUTION?

Leslie J. Moran

I begin with two snapshots. The first is an extract from a police statement dated 25 August 1933. The statement is part of a file deposited at the United Kingdom’s National Archives in London.¹ It is one of many files in the Archive’s collections relating to the operations of London’s Metropolitan Police Service.² The second comes from a guide produced in 2000 by the Association of Chief Police Officers (ACPO), an organization devoted to bringing together police service heads ‘to share ideas and best practice, co-ordinate resources and help deliver effective policing which keeps the public safe’ (ACPO undated).

First, the police statement:

STATEMENT of _____, Police Constable,

528 ‘M’ Division, who saith:

At 11.15 pm, on the 24th August 1933, I was on duty in plain clothes, accompanied by P.C. 565 ‘M’ Division_____, keeping observation on the public lavatory situated at the junction of Fair Street and Tooley Street, Bermondsey, in consequence of complaints having been received of indecent behaviour by male persons … I entered the lavatory … A short time later the prisoner, _____ entered the lavatory … and he came round to the stall immediately on my right … After a few minutes the prisoner made a half-turn towards me, stretched out his left arm and placed his left hand on my person and commenced rubbing it. I immediately took hold of his left arm, his left hand still being on my person. I said to him ‘I am a Police Officer and I am going to take you into custody for indecently assaulting me’.

(MEPO 3/990, undated)

This extract records part of a police operation in a public lavatory in London in 1933. It was conducted by two plain clothes officers based at Tower Bridge Police Station. The full statement details an elaborate, intense encounter made up of gestures, movements and glances, between the police officers dressed in plain clothes and a number of other men late at night. My edit of the statement sets the scene and then moves to the recorded details of the devastating climax – ‘his left hand on my person’ – and its dreadful aftermath. The file records that the arrest led to a successful prosecution. The accused man was found guilty on two charges of indecency with another man, one an offence under the Offences Against the Person Act 1861 and another contrary to a London County Council By-Law.

The second snapshot comes from the ‘Introduction’ to the ACPO Guidance on the Policing of Public Sexual Activity (ACPO 2000). It begins:

In 2000 the newly formed Association of Chief Police Officers (ACPO) Lesbian, Gay, Bisexual and Transgender (LGBT) Working Group identified a need for national guidance for responding to complaints from the public of men visiting public toilets and other public environments for the purpose either of engaging in sexual activity with other men there (cottaging) or elsewhere (cruising) …

(ACPO 2000)

Despite the more generic focus of this document expressed in its title, ‘policing public sexual activity’, the preoccupation of the ACPO ‘Guidance’ is quickly revealed as male sexual activity and more specifically sexual activity between men. Several lines later the Guidance continues:

… there needs to be a clear public acknowledgement that the reasons why men engage in public sexual activity are several and complex, in many cases reflecting personal experiences of homophobia. Thus, this model (sic) emphasises the value of building trust with local LGBT communities and engaging in consultation at all stages of the process

(ACPO 2000)

Turning to the causes of the wrongdoing, there is some resistance in the Guidance to a one size fits all approach, though in the final instance one cause is highlighted: the existence of prejudice. This ACPO position, the Guidance explains, is one that seeks to engage communities and legitimate practices of policing. The objective is to ensure that, when taken, police action will be seen as ‘fair, necessary and legitimate’. It goes on to say that if those who engage in public sexual activity themselves experience homophobic crime then, as victims of that crime, they will be supported by the police. The ‘Introduction’ concludes:

Protecting lesbians, gay men, bisexuals and transgender people from homo-phobia … is a responsibility of the police and other statutory agencies acting in partnership …

(ACPO 2000)

The Guidance then proceeds to set out 12 overarching principles to guide police when witnessing acts of, or responding to complaints about, sexual activity in a public place. It is followed by a detailed scheme outlining four stages of institutional decision-making applicable to policing this particular type of activity (see Chapter 3). The guidance has been widely adopted, making an appearance on police service websites throughout England and Wales.

Much separates these two snapshots. Time is one: almost 70 years. Another is the nature of the phenomenon portrayed. The first snapshot might be described as a description of a police response at a micro level. The second offers more of a macro-level response. The first extract is an after the event record detailing an actual police operation from the perspective of one officer involved. It tells us little about the police decision-making processes prior to the operation. The second is a national policy and a model operating procedure. It provides a framework for thinking about policing male public sexual activity. It purports to guide what ought to be done prior to and in the process of undertaking an operation. These two examples of police operations also have things in common. Both evidence an enduring interest in policing male sexual practices and a legal and institutional landscape devoted to their regulation. They are connected by an enduring attribution of disorder and insecurity to some consensual same-sex sexual activities. They share a point of departure: both are provoked by ‘complaints’ being received by the police. The objective of this chapter is to examine some of the factors that have generated the changes that separate these two connected snapshots. In part this will be pursued through an examination of the impact of recognition politics upon criminal law and criminal justice. It also involves a reflection on institutional changes affecting the crime control management of contemporary sexual order and disorder.

Recognition politics

Recognition politics is all about social injustice and struggles for social justice (Fraser 1995). It potentially touches on all social interactions. In the context of this chapter, the social justice in question is the individual and collective effects of the negative social and cultural values attached to particular sexual practices and their attribution to sexual identities by criminal law and criminal justice agencies. The history of criminalization demonstrates that the range of social interactions that might fall within these parameters is diverse (Moran 1996). The political project is one that seeks to transform the values attributed to these practices. In crude terms, it is an attempt to turn them from a negative to a positive; to give due respect to the subject of those practices and particular identities. In this case it is a political project that addresses the social injustice that flows from the multitude of negative associations connected to consensual same-sex erotic relations and to the formation of identity categories that have come to be closely associated with the political project of revalorizing those relations: ‘Uranian’, ‘Invert’, ‘Homosexual’, ‘Gay’, ‘Lesbian’ (Moran 1996; Weeks 1981).

Criminal law and the institutions of criminal justice have been and continue to be something of a preoccupation of a recognition politics concerned with male same-sex sexual practices. There are many reasons for this. The law administered by the police, and other criminal justice agencies more generally, has provided one context in which there has been a preoccupation with ideas about male sexuality and in which the negative values associated with male sexual practices with other men have been shaped, institutionalized and legitimated (Moran 1996; McGhee 2001). Certainly in England and Wales, the location of my particular study, women’s sexuality in general and sexual relations between women in particular have been policed differently.³ As part of the State machine that puts legal preoccupations with male sexuality as a threat to social order into practice, the police have played a key role in bringing the full weight of the law and, with it, the full force of the State’s monopoly of violence to bear on the bodies of men.

Decriminalization of sexual relations between consenting male adults in private has often been and continues to be regarded as the essential first step in any campaign to address the social injustice embedded in the negative values associated with consensual same-sex desire that have long shaped and been given legitimate force in law and its institutions. But it is far from the end of the matter (McGhee 2001; Moran 1996). The gap between the Sexual Offences Act 1967, which introduced important but limited decriminalization of sexual relations between two consenting adults in private, and the Sexual Offences Act 2003, the most recent reform of sexual offences, was a period in which heroic campaigns were waged to reimagine the nature of sexual relations between men (Waites 2005). The eventual removal of several offences that were unique to male-on-male acts, in the 2003 Act, such as gross indecency, and indecency with a man, is one sign of that campaign’s success (Johnson 2007).

Another dimension of the success of this campaign is to be found in section 2 of the Sexual Offences Act of 2003. That section creates a new offence, ‘Assault by penetration’. It can be committed by men and women and the victim can be male or female. It criminalizes penetration ‘with a part of his (sic) body or anything else’ (Sexual Offences Act 2003, section 2 (1)(a)). The part of the body penetrated is the vagina and anus. Assault by penetration differs from rape as it is an act of unlawful violence that is not gender specific. The offence of rape, in section 1 of the 2003 Act, relates to the penetration of the vagina, anus or mouth of another person using a penis. A person convicted of that offence is liable to a penalty of imprisonment for life. The punishment for assault by penetration is the equivalent of that attached to the offence of rape.

Section 2 of the 2003 Act is relevant here as an example of the emergence of law that addresses men who have sex with other men and women who have sex with other women as ‘good victims’. A ‘good victim’ is a subject whose experience of violence is recognized as a threat to good order. As a ‘good victim’ the subject gains access to all those criminal justice services that are dedicated to bringing disorder to an end. As a ‘bad victim’ the tables are turned against the one who calls for help. That call provokes a hostile intimate investigation into the subject’s past behaviour and current practices in a search for disorderly conduct. A classic example of this economy of ‘good’ and ‘bad’ victim in a same sex context is the man who reports an act of violence against him during a public sex encounter with another man. The victim of violence here ends up being labelled the problem, being arrested. An example with a lesbian focus might be acts of sexual violence, rape, used to ‘cure’ the woman of her desires. As a ‘bad victim’ the lesbian would be construed as the ‘cause’ of the sexual violence (Rich 1980). The rise of political campaigns around ‘homophobic hate crime’, which in English law is violence motivated by hostility or violence that evidences hostility towards particular groups (Crime and Disorder Act 1998, section 28), is one example of recognition politics targeting and challenging the policies and practices that deny victims of violence access to the status of the ‘good victim’ and, as a result, access to safety and security (Moran and Skeggs 2004; Stanko and Curry 1997).

ACPO’s Guidance on policing public sexual activity is shaped by the success of recognition politics as outlined above. Evidence of this is in ACPO’s acknowledgement that:

… there is no doubt that men who engage in [public sexual activity] run a risk of falling victim to homophobic crime and the clear message needs to sent (sic) (and received and believed) that victims of such crimes will be supported by police.

(ACPO 2000)

So engagement in what may well be criminal acts of consensual public sex does not necessarily preclude the same man being recognized as a victim of violence; the previously ‘bad victim’ must now, with regard to the violence he received, be treated as a ‘good victim’. The words in brackets in the above quotation are of particular interest as they point to the ongoing cultural legacy of the impact of the status of ‘bad victim’ on the perceptions and expectations of men who have sex with other men. A survey of lesbian and gay expectations of discrimination by Stonewall captured evidence of the lingering effects of the role played by criminal justice agencies in producing and deploying discrimination. One in five lesbian and gay people reported an expectation that they would be treated worse than heterosexuals when reporting a crime to the police if their sexuality was know to the police. A quarter of lesbian and gay respondents expected they would be treated worse if they reported a homophobic crime. And expectations increased outside of London. Age was another factor. Lesbians and gay men over 50 reported higher expectations of discriminatory treatment (Hunt and Dick 2008: 11). Returning to the Guidance, the words in the brackets reflect this lingering expectation of discrimination. It is not enough for the police to send the message that any violence will be recognized; it calls for the police to make sure that the message is received and effective. The final sentence of the ‘Introduction’ nods towards the more general impact of successful campaigns to attach the label ‘good victim’ to ‘lesbians, gay men, bisexuals and transgender people’. Protecting those people, the Guidance explains, ‘is a responsibility of police and other statutory agencies acting in partnership’ (ACPO 2000). These particular sexual subjects are recognized here as sexual citizens and as the potential beneficiaries of one of the fundamental aspects of the liberal myth of the social contract: safety and security delivered through the State’s agencies of crime control (Phelan 2001).

Institutional change

The reference to ‘police and other statutory agencies’ in the closing lines of the ACPO Introduction brings into focus the second issue I want to address: the institutional dimensions of policing sexuality and changes to those institutions. Before going further I want to turn to some of David Garland’s (1996) work and to his phrase ‘the limits of the sovereign state’. It is a phrase Garland uses in a preliminary exploration of changes to criminal justice strategies occurring in Western liberal democracies that experience enduring levels of ‘high crime’. In ‘high crime’ societies, he suggests, the perceived endurance of crime is generating a range of sometimes-contradictory responses and new developments. So, it generates a renewed commitment to using the state machine of criminal justice institutions to deal with crime. To name but a few changes, this may involve the removal of rules and procedures that are perceived to protect defendants, an increase in punishments, and the decline of reform-focused initiatives (Garland 2001). At the same time it gives rise to a recognition of the ‘limit’ of the power of those same agencies; to the inability of the state’s traditional criminal justice institutions to meet the challenges of crime and to bring crime to an end. In response to this ‘limit’, crime control strategies are reoriented towards prevention, the containment of crime and the reduction of crime opportunities. My interest in Garland’s analysis is limited to the insights it can facilitate with regard to contemporary strategies of crime control in the particular context of England and Wales. While all the strategies of change being generated in response to the recognition of the state’s limits potentially have rel...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Notes on the contributors
• Introduction
• PART 1 The contemporary landscape of policing sexuality
• PART 2 Policing ‘public’ sex
• PART 3 Policing ‘pornography’
• PART 4 Policing and the ‘sex industry’
• Index