By Akbar Sapie
Abstract
Britain has a long history of regulating male sexual conduct. Death sentences were a punishment for sodomy in Britain from 1533 until 1861, but consent was not considered for those who engaged in the sexual activity. During the 19th century, legislation was made against buggery and sodomy purposely to protect public morality, and not soon later, in 1967, it was decriminalised. This article calls attention to a contemporary issue regarding consent among gay, bisexual, and other men who have sex with men. The existence of gay websites and ready-to-install apps that are available on smartphones, makes their connectivity with strangers easier and casts doubts about their security while on the internet. It looks further at the social-legal aspect by bringing notable cases together with the emergence of chemsex — a term used to describe active drug use to stimulate heightened sexual and drug-related pleasure.
Consent and Chemsex
Chemsex has emerged as a global issue since the early 2000s and often involves group sex, called Party n Play in high-income countries like the UK, Ireland, US, and Canada [1]. Data has shown gay, bisexual, and other men who have sex with men have a higher rate of usage of mephedrone, crystal methamphetamine, GHB/GBL, MDMA and poppers, given the use of MDMA and sildenafil gained popularity due to its ability to prolong and sustain sexual arousal for an extended duration. The main three chemsex drugs, including mephedrone, crystal methamphetamine, and GHB/GBL, carry higher health risks because mephedrone and crystal meth can induce psychosis, and GHB/GBL is easy to overdose on [2].
An interview of thirty men residing in South London used these three drugs, illustrating that the irregular concentration of GHB/GBL can cause overdosage [3]. A small percentage of men raised the issue of consent while consuming the drugs and the remaining reported that their chemsex activities hinder them from accessing the harm reduction services. Harm reduction is referred to as health services on reducing harm associated with drug use. The services include how to deal with drug-related emergencies, self-empowerment from exploitation, awareness of HIV, HCV, and STI transmission, and community networking towards recovery.
British History and Current Legislative
Since the decriminalisation of homosexuality in 1967, males have become the potential victim of rape. Let's recall the history. Do we still remember the rise of child sexual abuse cases that triggered public inquiry in the Cleveland area of North Yorkshire in 1987? [4] Later on, the National Commission of Inquiry into the Prevention of Child Abuse, chaired by Lord Williams of Mostyn, a senior barrister, revealed there were hundreds of adult survivors of child sexual abuse in the 1990s. What else? In 1995, Andrew Richards was sentenced to life for attempted rape [6], thankfully due to the Criminal Justice and Public Order Act 1994, which was enacted a year before and significantly includes both women and men in the definition of rape victim. The law remains from then to now, defining rapists as male and only men are “legally” capable of committing rape in England and Wales [7].
At the present time, the challenge is chemsex. Several individual cases have gained media attention in this country, for example, Stephen Port [8]. Port met all his victims through gay dating apps and websites. The coroner reported Port murdered four young men in London using GHB, which led to overdosage, and he was charged with sexual assault, rape, and murder. The evidence included various videos showing that the men were drugged before being raped. Caroline Davis, a Guardian writer, expressed concern about the way the Metropolitan Police Service handles murder cases involving the LGBTQ community [9]. She pointed out the detective missed the opportunity to detain Port earlier as they “failed to spot striking similarities in the victims’ deaths.”
Reynhard Sinaga is also relevant [10]. Sinaga remains the most prolific convicted rapist in British legal history, with 159 cases across four separate trials, including 136 unprotected anal rapes that were filmed using his mobile phone. He rendered the victims unconscious by giving them drinks spiked with substances thought to be GHB. Several victims experienced physical injury, and many others suffered psychological harm including self-harm and attempted suicide. These two cases proved the prosecutor successfully alleged facts and charged crimes in close relation to rape and chemsex. In fact, a statistic by the Office for National Statistics demonstrates more than half of men have experienced unwanted sexual experiences, 42 per cent have experienced at least one legally defined sexual crime, and 1 in 10 men have been subjected to non-consensual penetration or rape in England and Wales [11].
In contrast, there was insufficient burden of proof in the Alexander Parkin case for the death of 18-year-old Miguel Jimenez, whose boyfriend was a London barrister, Hendry Hendron. Parkin faced trial over claims he sold crystal meth and liquid ecstasy GBL from his flat in London and was sentenced to 200 hours of community service for supplying Hendron with drugs [12]. Hendron was subjected to unpaid community work and supervision after pleading guilty to possessing class B and class C with intent to supply. However, last year, he failed to appeal against his sentence. The court began the appeal with, “The facts of this case are unique. It is to be hoped that remains the case”, followed with further remarks “two features of this case which are both unusual and very serious” explaining he had not been disbarred albeit to the offence and “the individuals from whom he was encouraging to supply drugs to him were prisoners on remand being represented by Hendron.[13]”
The major concern for the Crown Prosecution Service is the consent element for prosecution [14]. Chemsex drugs blur the lines of consent. The prosecution is required to focus on the complainants’ state of mind at the time of the alleged assault and whether they were able to retain the capacity to consent—as highlighted in R v Bree:
“In our judgment, the proper construction of section 74 of the 2003 Act, as applied to the problem now under discussion, leads to clear conclusions. If, through drink (or for any other reason) the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting, and subject to questions about the defendant's state of mind, if intercourse takes place, this would be rape. However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape. We should perhaps underline that, as a matter of practical reality, capacity to consent may evaporate well before a complainant becomes unconscious. Whether this is so or not, however, is fact specific, or more accurately, depends on the actual state of mind of the individuals involved on the particular occasion.” [15].
Both the Port and Sinaga cases asserted the fact that the rape occurred. The consent could not be taken into account to have been given if the victim was intoxicated and unable to engage in sexual penetration—Port “surreptitiously drugging young men so that he could penetrate them while they were unconscious;” and “Sinaga used a date rape drug to facilitate the offences; these are drugs which pose a risk of serious harm as well as leading to a complete lack of memory.”
Future Direction
This brief commentary directs us to explore the harms associated with chemsex, such as HIV transmission, substance intoxication, and increasing prison population due to drug offences, from social care and criminal justice system lenses. At the same time, ensuring those with lived experiences have access to harm reduction services. Cases like Port and Sinaga initiate a new discussion of a relationship to criminal offending behaviour that requires collaboration between the Metropolitan Police Service, the Crown Prosecution Service, and His Majesty’s Prison and Probation Service. This effort is important to recognise what works in case management. A national criminal database that includes data on physical/sexual violence incidents, releases from prison, and the risk of re-offending is needed for better policing practice and regulation.
References:
Chemsex: Brits more likely to combine drugs with sex, survey finds, BBC (2 April 2019) https://bbc.com/news/newsbeat-47787138
Drevin, G. et al., (2021). Chemsex/slamsex-related intoxications: A case report involving gamma-hydroxybutyrate (GHB) and 3-methylmethcathinone (3-MMC) and a review of the literature. Forensic science international, 321, 110743. https://doi.org/10.1016/j.forsciint.2021.110743
Bourne, A. et al., (2014) The Chemsex study: drug use in sexual settings among gay and bisexual men in Lambeth, Southwark and Lewisham. Technical Report. Sigma Research, London School of Hygiene & Tropical Medicine, London. https://researchonline.lshtm.ac.uk/id/eprint/2197245
4. Parliamentary debate of child abuse (Cleveland) (House of Common, 1987)
5. Ruth Beecher (2023) Children, Sexual Abuse and the Emotions of the Community Health Practitioner in England and Wales, 1970-2000, Journal of the History of Medicine and Allied Sciences https://doi.org/10.1093/jhmas/jrad024
6. 1995: First man jailed for male rape, BBC (9 June 1995) http://news.bbc.co.uk/onthisday/low/dates/stories/june/9/newsid_2500000/2500803.stm
7. Criminal Justice and Public Order Act 1994
8. R v Stephen Port [2016] EWHC
Caroline Davies, Stephen Port's freedom to kill raises difficult questions for the Met, Guardian (23 November 2016) https://www.theguardian.com/uk-news/2016/nov/23/stephen-ports-freedom-kill-difficult-questions-met-police.
10. R v Shah [2020] EWCA. No. 5.
11. Meghan Elkin ‘Sexual offences prevalence and victim characteristics, England and Wales’ (Official for National Statistics, 23 March 2023). https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/datasets/sexualoffencesprevalenceandvictimcharacteristicsenglandandwales
12. Tristan Kirk, Award-winning ex-BBC radio producer facing jail for dealing crystal meth, The Standard (3 November 2020) https://www.standard.co.uk/news/crime/former-bbc-radio-producer-crystal-meth-alexander-parkin-b40460.html
13. R v Hendron [2024] EWCA Crim 338 (26 March 2024)
14. Sexual Offences Act 2003, Section 74.
15. R v Bree [2007] EWCA Crim 804 (26 March 2007)
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