On the brain
Alan Watkins
Sex Law Tony Honore (Duckworth E8.95)
Dr A.M. Honore is fifty-seven, a Fellow of All Souls and Regius Professor of Civil Law at Oxford. His previous publications include The South African Law of Obligations, The South African Law of Property and Causation in the Law (all jointly), and Gains, The South African Law of Trusts and Tribonias. Now the Regius Professor has, as 'Tony' Honore, written a book on the English law of sex; if such, indeed, exists. Rum. Well, perhaps not as rum as all that. His publishers advertise on the dustjacket of Professor Honore's work other volumes by other authors. These books include: Homosexuality Re-examined, Greek Homosexuality, Love Between Women, Sexual Identity Conflict and The English Vice: Beating, Sex and Shame in Victorian England and After (surely it ought now to be called the Pakistani vice?). Clearly Messrs Duckworth have sex on the brain, which, as Mr Malcolm Muggeridge once pointed out, is not the best place to have it.
The publishers claim this is the first time the law about (or, as the lawyers would say, 'relating to') sex has been dealt with comprehensively. Maybe it is. I still find it difficult to know to whom Professor Honore's book is addressed. Will learned counsel say to the Court of Appeal: 'There is an interesting clarification of this point, if it would assist your Lordships, in Honore on Sex'? Somehow I doubt it. In his chapter 'Offenders and Trials' the Regius Professor has a marvellous flight of fancy whereby he imagines his book's being earnestly consulted by accused persons: 'This chapter gives a brief survey of the legal position of sex offenders, their numbers, trials, punishments and treatments. The information may be of interest, especially to those who find themselves charged with a sex offence and want to know what to expect.'
'What do you reckon's the going rate for indecent assault, Fred?'
'Three years, I reckon, squire, seeing as you're over twenty-one and she was fifteen. Looked it up in Honore just now.'
From this you may deduce that the Professor has written a work of scholarship. If so, you are right. Every page is supplied with references (much easier to deal with them at the end of chapters or of the book itself). There is a bibliography, indexes of cases and statutes, and a general index. With 180 pages of text, the book is a masterpiece of concision, though, like most of Duckworth's productions, correspondingly overpriced.
Professor Honore is particularly good at sorting out the anomalies and inconsistencies of the Sexual Offences Act 1956, which, the more one looks at it, seems to be a thoroughly bad piece of legislation. (It was recently responsible for sending a wretched man to prison for obtaining sex by fraud —in this case a promise to marry the girl, which, being married already, he was in no position to do.) It would take too long to summarise either the muddles of the Act or Professor Honore's solutions to them. But it seems to me that his views are thoroughly sensible and humane. He would never, for example, prosecute what he calls 'teenage experiments'. He would keep the age of consent at sixteen for both marriage and heterosexual sex. He would alter the 1967 Wolfenden' or `Abse' Act to lower the age of consent to eighteen for homosexual sex. And he has little sympathy for paedophiles. But when does paedophilia begin and end? Sex between a fifteen-year-old boy and a thirteen-year-old girl would clearly count as 'teenage experiment'. Should a youth of nineteen — in law, for most purposes, a man —be criminally liable for the same act? (lam assuming consent throughout.) And, if not, should a man of fifty be treated any differently?
All this gives rise to interesting questions of legal principle and of law enforcement: but it is not, after all, what concerns the majority of adult citizens. The real argu ments are not primarily about what the Regius Professor calls fucking but about money, property and the custody of children; about divorce, separation, maintenance, tax allowances and supplementary benefits. Professor Honore tries to deal with these as well; and he strikes me as less successful than when disentangling the provisions of the criminal law. For example, the 'cohabitation rule' is based on the principle that a mistress should not be in a better position than a wife. Professor Honore objects to this on the ground that a mistress has no legal right to be maintained, whereas a wife has. Yet surely the State is, when dishing out our money, entitled to have regard to the de facto position?
Moreover mistresses (and the Regius Professor does not properly deal with this) are fast acquiring far-reaching rights in property. The effect of a recent Lords decision is, presumably, that a mistress who is constrained to leave a joint home owing to physical abuse has the right not only to return to the home but also to eject her violently inclined lover therefrom. Why should this right to occupy the home, if necessary to the exclusion of the lover, depend upon an antecedent act of physical maltreatment? Why should the right not exist independently, in virtue of the mis tress's de facto position? Why not, indeed! I do not know whether this is, will be or ought to be the law: merely that prudent single men should exercise care when the girlfriend turns up at the front door with a suitcase.
Not only are Professor Honore's subjects disparate, except insofar as they can be tied to something called sex. The style is very odd too. It is not that the book is badly written — it is not — but, rather, that the author has not quite found the words to fit his approach to his subject. It is not so much that the Regius Professor has donned the cap and bells as that he has got out the kaftan and beads. And, over these bizarre accoutrements, he continues to wear his hood and gown.
Thus every chapter is introduced with a snatch from a popular song. The chapter entitled 'Women as Victims' is preceded by 'You want to do me but I don't want to be done — OK?' (Schumar/Mackay: OK). As Professor Honore might himself say in a skittish moment, he has yet to get it all together. On the one hand, he produces the ringing liberationist sentence: 'To be fucked is to be a victim'. On the other, he is capable of such daunting propositions, to which law does seem peculiarly attached, as: 'Sex outside marriage is not necessarily a crime, but marriage is the only relation in which sex is positively lawful' and 'What ever the • reason, and however stable the relation, sexual intercourse between an unmarried couple is "unlawful", though it is not in general a crime'. This brings us to areas of void and voidable contracts, not co-extensive, which the learned Professor does not attempt to distinguish clearly — to say nothing of that 'unruly horse', public policy. Still, thank you, Doctor, for telling us as much as you have done.
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