the common-law recognition of the offence in question, legal and societal norms were such that gay sexual expression was not considered something which ought to be criminally proscribed, it is very difficult to conceive that this particular offence would have come into existence purely in order to criminalise male rape. Such an offence would in any event have been punishable as a form of assault, as indeed was anal intercourse with a woman without her consent.
[71]If one applies this approach at the present time, the same conclusion follows. Subject to the qualifications which will be expressed later in this judgment regarding the retrospectivity of the orders of constitutional invalidity, neither the coherence of the common law, nor judicial policy, requires the continued existence of a severely truncated form of the common-law offence. Acts of male rape still constitute crimes at common law, whether in the form of indecent assault or assault with intent to do grievous bodily harm. These are the criminal forms by means of which anal intercourse with a woman, without her consent, is punished. The competent punishments which can be imposed for such offences have not been restricted by statute and the severity of such punishments can be tailored to the severity of the offences committed. While refraining from any comment, one way or the other, on the constitutional validity of the age limits or differential age limits prescribed in section 14 of the Sexual Offences Act, it must be pointed out that its provisions do protect persons below a certain age against both heterosexual and homosexual acts of a prescribed nature being performed with them.
