S. v. H.

S v H 1995 (1) SA 120 (C) (Also reported at 1993 (2) SACR 545 (C)) CAPE PROVINCIAL DIVISION TEBBUTT J and ACKERMANN J JA
1993 September 6

Flynote

Constitutional law - Human rights - Fundamental rights in terms of proposed new constitutional dispensation in South Africa - Right not to he unfairly discriminated against on grounds of sexual orientation - Homosexuality - Likelihood of entrenchment of right not to he discriminated against on grounds of homosexual orientation will probably result in common-law or statutory offences proscribing private 'unnatural acts' between consenting adult men being struck down.

Criminal law - Sodomy - Sentence - Private homosexual act between two consenting males - Although sodomy still a crime today, custodial sentence not appropriate sentence for consensual, adult, private sodomy taking place under circumstances which pose no

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threat to any legitimate societal interest - Sentence of 12 months suspended imprisonment imposed on 23-year-old first offender set aside on review and replaced with a caution and discharge.

Headnote

A broad consensus on eliminating discrimination against homosexuality appeared from the various draft bills of rights issued by various groups during the South African constitutional negotiations, indicating a likelihood that this will be entrenched in a new constitutional dispensation. If this were to happen, it is difficult to see how common-law or statutory offences which proscribe private 'unnatural acts' between consenting adult men can escape being struck down.* (At 129C/D-D/E.)

Although sodomy is still a crime in South Africa today, consensual adult sodomy committed in private can rarely, if ever, justify a custodial sentence whether or not the accused is a first offender and whether or not the initiative has come from the other party. (At 124B/C.)

In the instant case the accused, a 23-year-old first offender, had been convicted of sodomy committed with another male in private. The accused was sentenced to 12 months' imprisonment which was totally suspended. On review the Court held that public attitudes to homosexual relationships had changed and that in the circumstances the sentence should be set aside and replaced with one of a caution and discharge. (At 129E and I/J.)

Case Information

Review.

JUDGMENT

Ackermann J: This is a review case:

The accused, a 23-year-old male, was on his plea of guilty convicted of sodomy and sentenced to 12 months' imprisonment, the whole of which was conditionally suspended.

The accused was, as the law presently stands, correctly convicted but a query was raised concerning the sentence. In his reply to the query the magistrate indicates that, on reflection, he is of the opinion that the sentence could possibly be considered excessively severe.

The accused has no previous convictions. It appears from the questioning of the accused on his plea of guilty that the person with whom he performed the act of sodomy in fact requested him to do so. No evidence to contradict this was adduced by the State and the accused was found guilty on this basis. According to the probation officer's report the 'complainant' was also an adult. In the charge sheet it was merely averred that the sodomy took place at or near the Main Road in Somerset West. From the record it does not appear where exactly it occurred. It cannot therefore safely be found that the occurrence took place in a public place or in public view or at a place where the public could reasonably have observed it. There is no evidence that, wherever it occurred, anyone witnessed it.

For purposes of sentence, therefore, it must be accepted that this is a case of a private homosexual act between two consenting adult males. Although sodomy between males is still a crime today, the question arises

* Section 8(2) of the Constitution of the Republic of South Africa Act 200 of 1993 provides as follows:

'(2) No person shall be unfairly discriminated against, directly or indirectly, and, without derogating from the generality of this provision, on one or more of the following grounds in particular: race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture or language.'

(Emphasis supplied by the Editors.) - Eds.

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as to what an appropriate sentence is where the parties involved are consenting adults who commit the act in private, particularly having regard to changing public attitudes regarding homosexual relationships and self-expression.

There is a growing body of opinion, in South Africa as well, which questions fundamentally the sociological, biological, religious and other premises on which the proscription of homosexual acts between consenting adult men which takes place in private, have traditionally been based.

Not surprisingly the late Professor J C de Wet questioned the validity of criminalising certain forms of consensual sexual conduct. In 1975 in the 3rd edition of De Wet en Swanepoel Strafreg (ed J C de Wet) he said the following at 270, dealing with so-called unnatural sexual offences:

'In weerwil van beslissings waarin die onnatuurlike geslagsbevrediging met die medewerking of gebruikmaking van'n ander wel as misdaad, onder die naam "unnatural offence" behandel is, is dit hoogs twyfelagtig of daar genoegsame gesag hiervoor in ons gemenereg te vind is. In die toonaangewende beslissing van R v Gough and Narroway (1926 CPDS) 159) is daar sterk gesteun op Carpzovius en ander Duitse skrywers, wat op hulle beurt sterk beïnvloed is deur art 116 van die CCC. Dit is jammer dat hierdie bronne nie meer krities beskou is me. 'n Verstandiger houding is ingeneem in R v K and F (193 2 EDL 7 1), maar hierdie beslissing is, streng gesproke, slegs gesag vir die stelling dat die misdaad nie gepleeg word waar die ander party'n vrou is nie. Dit is dan'n misdaad wat nie tussen man en vrou gepleeg kan word nie. Of dit tussen vrou en vrou gepleeg kan word, is, wat ons gerapporteerde regspraak betref, nog'n onuitgemaakte saak. Mens hoop maar dat minder konserwatiewe opvattings as dié in 1926 sal heers, as die vraag ooit uitgemaak moet word. Ons leef darem nie meer in die middeleeue nie, en die geskiedenis van Sodom Iê nog verder in die verskiet.'

In S v Matsemela en 'n Ander 1988 (2) SA 254 (T), the two accused were charged in a magistrate's court with the offence of sodomy committed with each other but, as the evidence did not prove such offence, they were convicted of indecent assault, a conviction of an unnatural sexual offence not being a competent verdict on a charge of sodomy (see S v M 1979 (2) SA 167 (T)). The case came on automatic review.

The Court set aside the conviction and found that the 'assault' was not unlawful as the accused had consented thereto. The Court found further that the magistrate had erred in finding that a sexual act between men constituted a malum in se which could not be consented to.

Kriegler J, delivering the judgment of the Court, referred with approval to the above-quoted passage from De Wet en Swanepoel and then commented as follows at 258G

'Ek sou daarby voeg dat dieselfde hoop bestaan waar dit gaan om dergelike handelinge gepleeg tussen toesternmende volwasse mans in afsondering.'

This echoes the following comment of De Wet en Swanepoel (op cit at 270 footnote 79)

‘Mens kan regtig, ook wat manspersone betref, sonder die ding klaarkom.'

I am in respectful agreement with these observations.

Section 20A(l) of Act 23 of 1957 provides that an offence is committed when:

'A male person... commits with another male person at a party any act which is calculated to stimulate sexual passion or to give sexual gratification…'

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ss (2) of s 20A providing that, for purposes of ss (1) 'a party' means 'any occasion where more than two persons are present'. Commenting on these provisions in S v Matsemela en'n Ander (supra) Kriegler J observed at 2571-258A that it was

'betekenisvol dat die Wetgewer die pleging daarvan by 'n party bestraf. Waar daar nie'n derde teenwoordig is nie, word die bepaalde misdaad nie gepleeg nie. Dit is'n aanduiding dat, verre daarvandaan dat die onomlynde gemeenregtelike onnatuurlike geslagsmisdade hedendaags uitgebrei moet word, die Wetgewer dit juis wil inkort.'

It also indicates that the Legislature has accepted in principle that insofar as certain sexual acts between consenting males are concerned privacy is recognised, albeit obliquely, as a right, inasmuch as it serves to ward off the intrusions of the criminal law in this protected sphere.

In S v M 1990 (2) SACR 509 (E) a magistrate had inter alia sentenced the accused, who was between 20 and 21 years of age when he committed the offences, to six months' imprisonment on each of four counts of sodomy committed with men who were 19 years of age or older. The acts were consensual and took place in private. On appeal the Eastern Cape Division altered the sentences and, taking these four counts together for purposes of sentence, imposed a fine of R200 or six months' imprisonment conditionally suspended.

In delivering the judgment of the Court, Jansen J said the following at 514b-d:

'The majority of people, who have normal heterosexual relationships, may find acts of sodomy unacceptable and reprehensible. We cannot close our eyes, however, to the fact that society accepts that there are individuals who have homosexual tendencies and who form intimate relationships with those of their own sex. It has to be taken into account that homosexuality is more openly discussed and written about. It is common knowledge that so-called gay clubs are formed, where homosexuals openly meet and have social intercourse. If that is accepted by society, even with reluctance or distaste, it is also a factor that has to be taken into account by the courts when sentence is considered. Whether homosexual conduct between consenting males in private ought still to be punishable has been the subject of considerable debate, especially since 1967, when homosexual acts in private between consenting males above the age of 21 were legalised in England…

The learned Judge went on to refer, with implied approval, to law reform efforts in North America, Eastern and Western Europe and to the academic writings of Professors Dugard, Van Niekerk and Hunt, critical of the criminal sanction, whereafter he expressed the firm view, at 514H, that imprisonment was an inappropriate sentence for a first offender convicted of sodomy, committed in private between two adults:

'Be that as it may, sodomy is still a crime in South Africa and the appellant has to be punished. We have given very careful consideration to the question of sentence and eventually came to the conclusion that imprisonment is not a proper sentence in modern days for a first offender convicted of sodomy, especially where the initiative came from the other party, where both parties are adults, and the act is committed in private.

These judgments certainly indicate, in different ways, a critical attitude towards the desirability of criminalising intimate physical acts taking place in private between consenting adults. S v M in particular emphasises that

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the changing attitude of society generally to intimate relations between homosexuals demands greater tolerance and lenience in the sphere of sentencing adult persons for private consensual acts of intimacy which are still proscribed by the criminal law.

Although dealing a little more fully later with some of the issues referred to in S v M (supra) it is appropriate at this stage to venture some comments on S v M. I am certainly in respectful agreement with the tolerant approach enunciated in regard to sentencing. I would go further, however, and hold that consensual adult sodomy committed in private can rarely, if ever, justify a custodial sentence whether or not the accused is a first offender and whether or not the initiative has come from the other party. In the first of the two passages from S v M quoted above, reference is made to 'normal heterosexual relationships' in a context which implies that homosexual relationships are abnormal in a sense other than the mere fact that they are statistically in the minority. In my respectful view the use of the word 'normal' in this context is unfortunate, as it might suggest a prejudgment of much current psychological and sociological opinion which is critical of various conventions and assumptions regarding human sexuality. It may also suggest a wrong line of enquiry when coming to re-evaluate the status of homosexual relationships. I would suggest that a more fruitful legal enquiry might be directed at concepts of privacy and autonomy and the issue whether private sexual intimacy per se between consenting adult males can ever cause harm to society any more than private heterosexual intimacy between consenting adults.

Insofar as the attitudes of foreign legal systems towards homosexuality are concerned, references may be made to Hunt South African Criminal Law and Procedure vol II revised 2nd ed by J R L Milton (1990) at 270 footnote 43 where the following is stated:

'A wellnigh exhaustive survey made in 1968 by Mr C J R Dugard and Dr B van D van Niekerk, of the University of the Witwatersrand, of foreign legal systems' attitudes towards homosexuality showed that: (1) Most countries in the Anglo-American legal group still punish homosexual acts between consenting males in private, though there is considerable movement toward reform on the lines of the English Act of 1967. For instance, in the United States, the American Law Institute in its 1962 Draft Model Penal Code (vide the note to para 213.2) dropped such conduct from the list of punishable crimes, and in December 1967, a Bill was introduced in the Canadian Parliament basically similar to the English reform. (2) The Codes of most countries on the continent of Europe (including: the Netherlands; Denmark; Sweden; Switzerland; France; Italy; Spain; Greece; Hungary; Romania; and Poland) do not punish homosexual acts between consenting males or females in private. Two of the exceptions are Austria and Germany (see para 175 of the German Penal Code; para 216 of the Draft German Penal Code), though, significantly, the German Code does not punish homosexual behaviour between females. (3) The Sexual Offences Act of 1967 does not apply to Scotland, where sodomy and bestiality remain common-law crimes (see Gordon 894), and where s 11 of the Criminal Law Amendment Act of 1885 (48+49 Vict c 69) (punishing acts of gross indecency between males) still applies.'

As De Wet en Swanepoel (op cit at 268) point out, the evolution of these offences was greatly influenced by Canon Law; Matthaeus De Criminibus, relying heavily on theological considerations. Hunt (op cit at 271 footnote 45) points out that, for example, Kersteman s v 'Sodomie' maintains that it

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denies the basic purpose of the sexual relationship, viz procreation. There is still a substantial body of theological thought which holds that the basic purpose of the sexual relationship is procreation and for that reason also proscribes contraception. There is an equally strong body of theological thought that no longer holds to this view. Societal attitudes to contraception and marriages which are deliberately childless are also changing. These changing attitudes must inevitably cause a change in attitudes to homosexuality.

The problem, from a constitutional law perspective, is starkly posed in the judgment of the United States Supreme Court in Bowers v Hardwick 478 US 186 (1986). Hardwick, an adult male, was criminally charged for violating Georgia's sodomy statute by committing a sexual act with another adult male (falling within the statute's definition of 'sodomy') in his own bedroom. The prosecutor elected not to present the case to the grand jury. Hereupon Hardwick brought suit in the Federal Court challenging the constitutionality of the statute. By a majority of five to four the Supreme Court declared itself unpersuaded that the sodomy laws of some 25 states should be invalidated. (Quotations from the judgment hereinafter are from the edited version thereof appearing in Stone, Seidman, Sunstein and Tushnet Constitutional Law 2nd ed (1991) at 968-74.)

The majority of the Court (per Justice White) rejected Hardwick's challenge on the basis that the Constitution did not recognise a fundamental right to homosexual acts of consensual sodomy even in circumstances of privacy.

In a powerful dissenting judgment Justice Blackmun (with whom Justice Brennan, Justice Marshall and Justice Stevens concurred) observed that:

'This case is no more about "fundamental right to engage in homosexual sodomy" as the Court purports to declare, than Stanley v Georgia 394 US 557 (1969), was about a fundamental right to watch obscene movies, or Katz v United States 389 US 347 (1967) was about a fundamental right to place interstate bets from a telephone booth. Rather, this case is about "the most comprehensive of rights and the fight most valued by civilized men" namely "the right to be left alone" Olmstead v United States 277 US 438, 478 (1928) (Brandeis J dissenting).'

Justice Blackmun would strike down the offending statute because it infringes on the individual's right of autonomy:

'Only the most wilful blindness could obscure the fact that sexual intimacy is "a sensitive, key relationship of human existence, central to family life, community welfare and the development of human personality," Paris Adult Theatre I v Slayton 413 US 49, 63 (1973). (The) fact that individuals define themselves in a significant way through their intimate sexual relationships with others suggests, in a Nation as diverse as ours, that there may be many "right" ways of conducting those relationships, and that much of the richness of a relationship will come from the freedom an individual has to choose the form and nature of these intensely personal bonds....

The Court claims that its decision today merely refuses to recognise a fundamental right to engage in homosexual sodomy; what the Court really has refused to recognise is the fundamental interest all individuals have in controlling the nature of their intimate associations with others....

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The assertion that "traditional Judeo-Christian values proscribe" the conduct involved cannot provide an adequate justification for (the statutes). That certain, but by no means all, religious groups condemn the behaviour at issue gives the State no licence to impose their judgments on the entire citizenry. The legitimacy of secular legislation depends instead on whether the State can advance some justification for its law beyond its conformity to religious doctrine.....

Justice Blackmun concluded as follows:

'I can only hope that (the) Court soon will reconsider its analysis and conclude that depriving individuals of the right to choose for themselves how to conduct their intimate relationships poses a far greater threat to the values most deeply rooted in our Nation's history than tolerance of nonconformity could ever do. Because I think the Court today betrays those values, I dissent.'

Justice Stevens, who joined Justice Blackmun in dissent, drew attention to the paradox between not prohibiting heterosexual sodomy and prohibiting homosexual sodomy:

'(Individual) decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of "liberty" protected by the Due Process Clause of the Fourteenth Amendment. (Griswold.) Moreover, this protection extends to intimate choices by unmarried as well as married persons. (Carey; Eisenstadt.)...

Society has every right to encourage its individual members to follow particular traditions in expressing affection for one another and in gratifying their desires. It, of course, may prohibit an individual from imposing his will on another to satisfy his own selfish interests. It also may prevent an individual from interfering with, or violating, a legally sanctioned and protected relationship, such as marriage. And it may explain the relative advantages and disadvantages of different forms of intimate expression. But when individual married couples are isolated from observation by others, the way in which they voluntarily choose to conduct their intimate relations is a matter for them - not the State - to decide. The essential "liberty" that animated the development of the law in cases like Griswold, Eisenstadt, and Carey surely embraces the right to engage in nonreproductive, sexual conduct that others may consider offensive or immoral.

Paradoxical as it may seem, our prior cases thus establish that a state may not prohibit sodomy within "the sacred precincts of marital bedrooms", Griswold, or indeed, between unmarried heterosexual adults, Eisenstadt....

If the Georgia statute cannot be enforced as it is written - if the conduct it seeks to prohibit is a protected form of liberty for the vast majority of Georgia's citizens - the state must assume the burden of justifying a selective application of its law.'

This, Justice Stevens found, the state had failed to do.

I find the views expressed in the dissenting judgments compelling and convincing.

Tribe American Constitutional Law 2nd ed supports the dissenting view in Bowers v Hardwick and says the following at 1428:

'The proper question, as the dissent in Hardwick recognised, is not whether oral sex as such has long enjoyed a special place in the pantheon of constitutional rights, but whether private, consensual, adult sexual acts partake of traditionally revered liberties of intimate association and individual autonomy.

Once the enquiry is shifted from the particular proscribed acts - and the group of people who engage in them - to the claim of liberty that must be balanced against the state's assertion of power, it becomes clear that a proscription on private acts of sodomy should not survive. It is beyond cavil that protection of the

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public realm is a legitimate state interest. But the Court in Hardwick "fail(ed) to see the difference, between laws that protect public sensibilities and those that enforce private morality". The law at issue there bans all sexual contacts of a special kind even if conducted out of public view behind closed bedroom doors, even if engaged in by married couples or other consenting adults, and even if engaged in for love and not for money. It thus intrudes the grasp of the criminal law deep into an area that implicates no state interest in protecting public decency, nor in protecting vulnerable persons such as minors from coercion, nor in restricting potentially coercive commercial trade in activities offensive to public morality. It should come as no surprise that, in the kind of society contemplated by our Constitution, government must offer greater justification to police the bedroom than it must to police the streets. Therefore, the relevant question is not what Michael Hardwick was doing in the privacy of his own bedroom, but what the state of Georgia was doing there.'

The position is also anomalous in South African law. It is very doubtful whether any so-called 'unnatural act' in private, between consenting adult females constitutes a criminal offence in modem South African criminal law; certainly there is no record of a prosecution ever having been brought. (See Hunt (op cit at 270 and 277); De Wet en Swanepoel (op cit at 277); and Snyman Strafreg 3rd ed at 391.) Likewise, neither anal nor oral sex (nor any so-called 'unnatural act') in private, between a consenting adult male and a consenting adult female is punishable by the criminal law. (See R v K and F 1932 EDL 71 - R v N 1961 (3) SA 147 (T); R v M 1969 (1) SA 328 (R); and, generally, Hunt (op cit at 276-7); and Snyman Strafreg 3rd ed at 388-91.)

Particular reference must be made to the seminal article by Professor E Cameron 'Sexual Orientation and the Constitution: A Test Case for Human Rights' in 110 (1993) SALJ 450. While the scope of the article goes far beyond a mere plea for the decriminalisation of currently proscribed homosexual acts, it does deal pertinently with the current state of criminal law. At 454-5 the learned author points out how under-age sex prohibition discriminates in various ways against gays and lesbians and (at 455) that the criminal prohibition on sex between men as well as the differential age of consent for gay men and women have a severely negative effect on the lives of these people:

'Even when these provisions are not enforced, they reduce gay men and women to what one author has referred to as "unapprehended felons'

In Norris v Republic of Ireland (a judgment of the European Court of Human Rights, case 6/1987/129/180 and cited by the learned author at 455) Ireland's blanket prohibition of homosexual sex was held to be a breach of the European Convention for the Protection of Human Rights and Fundamental Freedom. The Court quoted with approval the finding of an Irish Judge that:

'(O)ne of the effects of criminal sanctions against homosexual acts is to reinforce the misapprehension and general prejudice of the public and increase the anxiety and guilt feelings of homosexuals leading, on occasion, to depression and the serious consequences which can follow…'

As Professor Cameron also cautions (op cit at 456) that:

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'Apart from misery and fear, a few of the more obvious consequences of such laws are to legitimate or encourage blackmail, police entrapment, violence ("queer-bashing") and peripheral discrimination, such as refusal of facilities, accommodation and opportunities.'

He also points out (at 458) that:

'More enlightened current attitudes approach homosexuality as a natural sexual variant unlinked to any pathology, part of what Susan Sontag refers to as "the ineradicable variousness of expression of sexual feeling". Research has shown that homosexuality is encountered not only across all classes and sectors in any single culture, but in most cultures historically and in the natural world outside human society.'

What, in my view, also renders the criminalisation of consenting, adult, private, homosexual acts particularly repugnant is that the free mutual expression of erotic attraction between adult members of the same sex is proscribed even though such orientation may indeed be immutable. There are cases in our Courts where it has been accepted that, in particular cases, homosexual orientation is congenital and that it might be wellnigh impossible to change such orientation. (See R v K referred to in R v C 1955 (2) SA 51 (T) at 52-3 and S v S 1965 (4) SA 405 (N) at 409E-G.) One would however have to examine more fully all the available evidence before making a positive judicial pronouncement that all homosexual orientation is immutable. There does however appear to be a growing body of psychological opinion (see Cameron (supra at 460)) that such orientation is immutable and a product of psychological or genetic factors.

Whilst immutability of homosexual orientation would make the criminalisation of adult, private, consensual homosexual acts even more undesirable, this does not detract from the broader and more fundamental consideration, already alluded to, that principles of equality, privacy, autonomy and the absence of public harm militate strongly against criminal proscription of such acts.

Professor Cameron (op cit at 464) argues that:

'… the privacy argument suggests that discrimination against gays and lesbians is confined to prohibiting conduct between adults in the privacy of the bedroom. This is manifestly not so. On the other hand, the privacy argument may subtly reinforce the idea that homosexual intimacy is shameful or improper: that it is tolerable so long as it is confined to the bedroom - but that its implications cannot be countenanced outside. Privacy as a rationale for constitutional protection therefore goes insufficiently far, and has appreciable drawbacks on its own terms.'

This, of course, depends on the context in which the privacy argument is employed. It is certainly relevant in the field of the criminal law where, even in the case of heterosexual orientation, a limit is placed on the public expression of eroticism. Considerations of equality, however, would demand that no greater limitation be placed on homosexual erotic expression than on heterosexual erotic expression.

The issue of homosexual constitutional equality is very much in issue in the current South African debate. The draft bills of rights of the South African Law Commission prohibit discrimination on the ground of 'natural characteristics', which in the commentary is expressly stated to include homosexuality (SA Law Commission Project 58 Working Paper 25 Group and Human Rights (1989) article 2 at 471 and commentary at

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398-400; SA Law Commission Project 58 Interim Report on Group and Human Rights (August 1991) article 3 at 686).

The ANC draft Bill of Rights in art 7.2 forbids any discrimination on the ground of sexual orientation (A Bill of Rights for a New South Africa Working Document by the ANC Constitutional Committee (1990); Ready to Govern - ANC Policy Guidelines for a Democratic South Africa adopted at the National Conference 28-31 May 1992). Article 6(2) of the Government's draft Bill of Rights adopts the Law Commission's formulation in regard to 'natural characteristics' (Government's Proposal on a Charter of Fundamental Fights 2 February 1993). The Democratic Party's draft Bill of Rights (May 1993) in clause 2 ('Right to Equality') enumerates in subclause 2.2 sexual orientation along with race, ethnic origin, colour, gender, age, disability, religion, creed and conscience as categories protected against discrimination. The KwaZulu-Natal draft Constitution, in art 10(a), expressly outlaws discrimination on the ground of sexual orientation.

The aforegoing suggests broad consensus on eliminating discrimination against homosexuality and the likelihood that this will be entrenched in a new constitutional dispensation. If this were to happen it is difficult to see how common law or statutory offences which proscribe private 'unnatural acts' between consenting adult men can escape being struck down. For present purposes it is, however, sufficient to observe that these events in the sphere of constitutional negotiation, whatever the ultimate result might be, indicate a significant change in attitude in South African society to the issue of homosexuality. This strengthens me in the view that I have already expressed that at the present time a custodial sentence is not an appropriate sentence for consensual, adult, private sodomy taking place under circumstances which pose no threat to any legitimate societal interest.

I would stress that this judgment deals solely with the case of homosexual acts performed in private by consenting male adults.

One possible qualification needs to be mentioned. This judgment deals only with the position in society as it normally functions. There may be special situations where a legitimate societal interest might justify a different view being taken of private sodomy, even between consenting adults. The position of prison inmates comes to mind. There may well be others. The proscription of private sodomy between consenting adults undergoing imprisonment could well serve a legitimate societal interest. Such proscription would, however, not be on the basis of discrimination against male homosexual acts, but because the situation in prison might necessitate the proscription of all sexual relationships or contact involving prisoners, whether homosexual or heterosexual. The proscription would be directed against the sexual activity; not against the gender or sexual preference of the parties indulging in the activity. It is unnecessary, however, to express any firm view on this issue, because the facts of the present case do not require it.

In my view no more than a nominal sentence is required in the present case.

The conviction is confirmed but the sentence is set aside and replaced with one of a caution and discharge.