[66]I am not aware of any jurisdiction which, when decriminalising private consensual sex between adult males, has not retained or simultaneously created an offence which continues to criminalise sexual relations per anum even when they occur in private, where such occur without consent or where one partner is under the age of consent. The legislature usually fixes a minimum age for the parties to enjoy the benefit of the decriminalisation. The need for retaining some control, even over consensual acts of sodomy committed in private, was recognised in Dudgeon v United Kingdom.[1] So too, in Canada, for example, anal intercourse is criminalised in general terms by statute and the only acts excluded are those committed in private between husband and wife, or between any two persons, each of whom is eighteen years of age or more, both of whom consent to the act.[2] It must be emphasised, however, that provisions so made have invariably been by way of statute.
- ↑ Above n 51 at 163 to 164, paras 47–9.
- ↑ See para 50 above for the relevant provisions of the statute.
