Dudgeon v. United Kingdom

Application No. 7525/76; (1981) 4 EHRR 149; [1981] ECHR 5
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Country: United Kingdom
Region: Europe
Year: 1981
Court: European Court of Human Rights
Health Topics: Sexual and reproductive health
Human Rights: Freedom from discrimination, Right to privacy
Tags: Buggery, Gay, Homosexual, Lesbian, LGBTI, Queer, Sexual orientation, Sodomy

During a police search of Applicant Dudgeon’s home on suspicion of drug activity, personal property, including correspondences and diaries describing same-sex sexual activity, was seized. Dudgeon was subsequently taken to a police station and questioned extensively about his sexual life. The prosecutor considered but eventually declined to prosecute Dudgeon under a statute prohibiting “gross indecency” between males.

Dudgeon, a citizen of Northern Ireland, sought a decision from the Court as to whether Northern Ireland’s laws criminalizing sexual acts between consenting adult males violated article 8 of the European Convention on Human Rights (the Convention), which recognizes the right to private and family life, and article 14, which provides that enjoyment of the rights and freedoms in the Convention “shall be secured without discrimination on any ground such as sex, race . . . or other status.”

The Court held that the legislation criminalizing "gross indecency" between males violated article 8. The Court held that the very existence of legislation criminalizing sexual conduct between consenting adult males constitutes an ongoing interference with the Applicant’s right to respect for his private life, including his sexual life, under art 8(1) of the Convention. This was so despite the lack of prosecutions under the law.

This interference was not justified under art 8(2) of the Convention, as the Government of the United Kingdom had failed to meet its burden of demonstrating that the legislation was necessary to “protect morals” or to protect the rights and freedoms of others. The Court rejected the need to take into account public opinion in Northern Ireland, noting that in most European countries it was “no longer considered to be necessary or appropriate to treat homosexual practices . . . as in themselves a matter to which the sanctions of the criminal law should be applied," and that even in Northern Ireland itself, the law was rarely enforced. It also noted that moral disapproval, without more, could not be a basis for allowing the state to interfere in private, consensual relations in such a disproportionate manner.

In light of this ruling, the Court did not reach the issue of discrimination under article 14.

"In the personal circumstances of the applicant, the very existence of this legislation continuously and directly affects his private life (see, mutatis mutandis, the Marckx judgment of 13 June 1979, Series A no. 31, p. 13, par. 27): either he respects the law and refrains from engaging – even in private with consenting male partners - in prohibited sexual acts to which he is disposed by reason of his homosexual tendencies, or he commits such acts and thereby becomes liable to criminal prosecution." Para. 41.

"On the issue of proportionality, the Court considers that such justifications as there are for retaining the law in force unamended are outweighed by the detrimental effects which the very existence of the legislative provisions in question canhave on the life of a person of homosexual orientation like the applicant. Although members of the public who regard homosexuality as immoral may be shocked, offended or disturbed by the commission by others of private homosexual acts, this cannot on its own warrant the application of penal sanctions when it is consenting adults alone who are involved." Para. 60.

"In particular, the moral attitudes towards male homosexuality in Northern Ireland and the concern that any relaxation in the law would tend to erode existing moral standards cannot, without more, warrant interfering with theapplicant’s private life to such an extent. " 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." Para. 61.

"To sum up, the restriction imposed on Mr. Dudgeon under Northern Ireland law, by reason of its breadth and absolute character, is, quite apart from the severity of the possible penalties provided for, disproportionate to the aims sought to be achieved." Para. 61.