SECTION II: SHOULD THE LAW BE CHANGED?
This s on considers some of the arguments which have been advanced for and against a change in the law.
The role of the criminal law
11. The Law Reform Commission Report on Laws Governing Homosexual Conduct raised important issues of legal policy by arguing that the law should not seek to proscribe homosexual acts between consenting adults in private. The criminal law should instead seek to protect people from being coerced into such acts, to protect juveniles and to defend standards of public decency. In its conclusions the Law Reform Commission stated-
.. it should not be a function of the law to enforce moral judgements in areas where there is no need to protect others; but that where conduct harms people or offends the public, then the law should impose sanctions."(3)
12. This view of the role of the criminal law echoes the views expressed by the Wolfenden Committee in its Report on Homosexual Offences and Prostitution in 1957(4)__.
'In this field, its (ie the law's) function, as we see it, is to preserve public order and decency, to protect the citizen from what is offensive or injurious and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical, official or economic dependence.
It is not, in our view, the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour, further .. Certain than is necessary to carry out the purposes we have outlined forms of sexual behaviour are regarded by many as sinful, morally wrong, or objectionable for reasons of conscience, or of religious or cultural tradition; and such actions may be reprobated on these grounds. But the criminal law does not cover all such actions at the present time; for instance, adultery and fornication are not offences for which a person can be punished by the criminal law."
13. In recommending that homosexual behaviour between consenting adults in private should no longer be a criminal offence, the Wolfenden Committee commented that this sphere of crime should not be confused with moral or religious views on sin. Matters of private morality should not, in the Com- mittee's view, be the law's concern. It was argued that it is important to respect the individual's freedom of choice in matters of private morality and to
(3) The LRC Report, para 12.11.
(4) Wolfenden Report, paras 13 and 14.
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