FAQ: Dogging and Swinging

Two Britons have appeared in court in Dubai after allegedly having sex on a beach in the Muslim emirate. What would happen if a couple got frisky on a beach in the UK?

The Sexual Offences Act 2003, which mainly covers England and Wales but also covers Northern Ireland in some areas, does not specifically legislate against sex on the beach so long as the act is consensual, says a Ministry of Justice spokeswoman.

Effectively sex on the beach in isolated places is allowed, so long as there is a reasonable expectation of privacy - which someone engaging in such an activity would be expected to prove. But someone could be charged with outraging public decency under common law, she says, if it is proven that at least one person has seen the act.

The witness has to see the act of intimacy first-hand. CCTV does not count, says travel lawyer Philip Banks, of the firm Irwin Mitchell.

Section 66 of the Sexual Offences Act 2003 - which bans exposing one's genitals if the intention is to cause alarm or distress - can also be applied in England, Wales and Northern Ireland.

Although the act does not fully apply in Scotland, indecent exposure is an offence under common law, says a spokesman for the Law Society of Scotland, although intent would be difficult to prove. The same expectation of privacy applies north of the border, although there could be a breach of the peace if someone saw and was offended.

Another thing to bear in mind is that getting frisky on the beach in the presence of a child is a criminal offence under section 11 of the act, says the Ministry of Justice spokeswoman.

And a person can also be charged if they use words, behaviour or display to cause another person harassment, alarm or distress under sections four and five of the Public Order Act 1986.

But both of these offences only apply if the couple intend to cause alarm, or are aware that a child is watching, says Banks: These legislations are very unlikely to be used in this context.

It is rare for an amorous couple to appear in court, says criminal lawyer Mark Haslam, of BCL Burton Copeland. If police do spot a couple engaging in al fresco love making, they are more likely to issue a caution or warning.

But if it is reported by a passing - and outraged - member of the public, the couple are likely to be prosecuted and would probably be fined, with the case reported gleefully in the local press, says Banks.

Swinging is a safe, international, middle class and increasingly popular leisure choice for married and courting couples. Yet contrary to its obligations under the European Convention on Human Rights, the United Kingdom effectively criminalises swingers in contrast to the high degree of tolerance it rightly extends to gay men for precisely the same activities.

This provides the justification used by unethical elements in the press to harass swingers even in their own homes. The British government promotes bigotry against swingers by funding an NGO that campaigns against swingers by pretending contrary to the scientific evidence that their lifestyle is detrimental to any couple's relationship.

The British government should recognise its responsibilities under the European Convention on Human Rights to respect the sexuality of swingers and stop discriminating against them. It should cease to fund the NGO that campaigns against swingers and investigate whether it has breached its charitable status; and should legalise swingers' activities and lightly regulate their dedicated premises through Acts of Parliament.

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The relevant section of the 2003 Sex Act to doggers is Section 66 Exposure and Section 67 Voyeurism.

Under Section 66, doggers are at risk of the law if it is their intention to cause alarm or distress to members of the public. So, if you take reasonable precautions to make sure that you are well out of public view, you should be fine. Essentially, this means only go dogging at night, away from residential areas and well away from the major carparks where anyone could turn up. If you use the carparks as a general meeting area, then move on to a more discreet location to play, you're taking steps to ensure no one is offended.

Under Section 67, doggers are only at risk if they approach couples having sex in cars that are not doggers, and therefore not consenting, but are just simply courting couples. A large number of dogging locations have grown from well established lovers lanes and gay cruising areas, so there is a potential risk of being in breach of section 67. Luckily, the signals used in dogging establish the consent of the couple wanting people to watch them have sex, and therefore section 67 no longer applies as long as you only approach cars that have signalled to you.

2003 Sexual Offences Act - Section 66 : Exposure

(1) A person commits an offence if-
(a) he intentionally exposes his genitals, and
(b) he intends that someone will see them and be caused alarm or distress.

(2) A person guilty of an offence under this section is liable-
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years.

2003 Sex Act - Section 67 : Voyeurism

(1) A person commits an offence if-
(a) for the purpose of obtaining sexual gratification, he observes another person doing a private act, and
(b) he knows that the other person does not consent to being observed for his sexual gratification.

(2) A person commits an offence if-
(a) he operates equipment with the intention of enabling another person to observe, for the purpose of obtaining sexual gratification, a third person (B) doing a private act, and
(b) he knows that B does not consent to his operating equipment with that intention.

(3) A person commits an offence if-
(a) he records another person (B) doing a private act,
(b) he does so with the intention that he or a third person will, for the purpose of obtaining sexual gratification, look at an image of B doing the act, and
(c) he knows that B does not consent to his recording the act with that intention.

(4) A person commits an offence if he instals equipment, or constructs or adapts a structure or part of a structure, with the intention of enabling himself or another person to commit an offence under subsection (1).

(5) A person guilty of an offence under this section is liable-
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years.