This presents fascinating challenges to the prison service.
Generally same sex relationships are largely ignored in both male and female prisons. Condoms are distributed even though male homosexual sexual intercourse may technically breach the UK law. Trying to stop such liaisons might make prisons more difficult to control and hence more expensive to run.
Now with the advent of Same Sex Marriage we have a case where two inmates have exercised their rights to marry. The prison responded to the request by moving them to separate wings even though their pre-marital sexual relationship had been tolerated.
Questions- should formalizing a relationship through marriage result in a ban on sexual contact that is not enforced in less formal relationships? How should prisons cope with such problems?
In the prisons I have worked in, sexual relations between prisoners (or between prisoners and employees) were illegal. And these laws did not merely exist; they were enforced as well.
I’m retired and same-sex marriage hadn’t been recognized at a state level when I was working. So the possibility of a marriage between two prisoners in the same prison wasn’t an issue.
My speculation would be that if two prisoners were married, they would be assigned to two different prisons.
But in the UK where consensual homosexual sex is tolerated, why would a civil state change that arrangement. The only explanation would be a desire to further punish the prisoners, but the law in the UK, prisoners are sent to prison as punishment rather than for punishment. Given that we already tolerate gay sex, even to the extent of distributing condoms, how would the state justify further punishing consensual sex within a marriage whilst tolerating even casual sex outside marriage?
That is an interesting argument, but it does not explain why unmarried sex is tolerated and then a change of civil status removes that possibility.
Should the comparison group be ‘other gay but unmarried couples’ or ‘other heterosexual married couples.’
This clarifies the debate about whether prison is a place of punishment or a placer for punishment. If you believe that residence in prison alone is the punishment, then one should allow such liaisons to continue, but if one believes that prisons are places for punishment then there might be some argument for separation.
One case is dependent on maximum equity between prisoners and non-prisoners where only those rights necessary for incarceration are removed. The other case believes that the prison service sees its role as removing rights as part of further punishment even when that is not necessary for mere incarceration.
You apparently missed the part where I said that unmarried sex is not tolerated in American prisons. Which reverses your argument. If we prohibit sex between prisoners, why should a change in civil status allow it?
Technically homosexual sex is only legalised in the UK for entirely private act between two people. Legally an observer whether purposeful or accidental makes the act illegal and group homosexual sex remains technically illegal. As there is no private place in prison, homosexual sex in prison is technically still illegal. None of this is ever prosecuted in most cases (a gay orgy in Trafalgar Square might result in charges!).
Hmm. A little OT, but a question for people who know more about the penal system than I do: when both partners in a heterosexual marriage are incarcerated, can they still apply for conjugal visits? I imagine since the transport of a partner who is an inmate requires security that a partner who is not an inmate just showing up for a conjugal visit doesn’t require, there is an excuse for denying them a priori, but maybe when one partner is in minimum security, they’re sometimes granted, or maybe they’re dangled as a carrot to encourage good behavior.
Anyway, if the US military can deny sex between marriage partners who deployed in a war zone (except when they are on leave), then I think it has the power to deny it to incarcerated couples, gay or otherwise.
In the US, condoms are not distributed to inmates on the grounds that that can be used as weapons, and for that reason, HIV is rampant in male prisons.
Anyway, as far as UK prisons, if the reason that sex is technically forbidden, whether or not guards look the other way, is that it’s fornication, well, it’s not fornication if the couple is married. So they should be allowed to have sex. If it’s because prison isn’t meant to be fun, then it should not be selectively enforced against married couples, especially if conjugal visits are sometimes granted to people who are married to someone not also incarcerated.
British prisons are run on a pragmatic control basis, allowing sufficient leeway in many actions to keep prisoners well ordered. There is little need for enforced separation within reason and the great majority of prisoners move relatively freely in their wing. Prison officers do not need to be armed and insurrection is relatively rare considering the limited number of prison officers deployed.
Ignoring ‘fornication’ reduces tensions; banning it would be very difficult anyway.
Most crimes in the United States are state crimes, and hence, every state has its own prison system with its own rules. The Federal Prison system doesn’t allow conjugal visits, and the only states that currently do are California, New York, Washington, and Connecticut. Both California and New York allow same-sex conjugal visits for married partners.
I will say, though, that more states used to allow conjugal visits than do now. It was fairly common in the 1970s, in the 1990s, only 17 states allowed them, and today, only 4.
As explained above it has only been decriminalised for sex acts between two men in private. It is never really prosecuted but technically any intercourse outside the private bedroom remains illegal.
I believe this is no longer the case. In England and Wales the relevant law was section 12 (“Buggery”) and section 13 (“Indecency between men”) of the Sexual Offences Act 1956, as amended. These sections were repealed by the Sexual Offences Act 2003. As I understand it the Sexual Offences (Northern Ireland) Order 2008 and Sexual Offences (Scotland) Act 2009 have the same effect in their respective jurisdictions.
Although buggies and indecency were decriminalised in 2003, the limits of the 1967 Act remain in place that homosexual intercourse is only legal if it is consensual, in private and not with an under age person (originally 21, now 16).
It remains a concern to the LGBT community that technically many sorts of sexual activity remain criminal for homosexual men, but not for heterosexual couples.