4 January 2021

More sex please, even if we’re British

By John McMillan

Not having sex has long been central to the English national character, and 2020 was no exception. Indeed, for much of last year ‘the clap’ referred exclusively to a solemn Thursday night ceremony performed for the encouragement of our medical professionals.

But in the Covid era, have we taken the restraint too far? After all, moderation in not having sex is surely an English quality too.

All of England (except the Isles of Scilly) is now living under a restriction, intended to prevent transmission of the coronavirus, that prohibits indoor household mixing. This measure has been sniggeringly referred to as the ‘sex ban’ because, in effect, it prohibits couples from starting or continuing a sexual relationship unless they live together or fit into the limited categories of permitted ‘linked households’.

The measure has been in place in different parts of England for different lengths of time. In Leicester, it has been in place in one form or another since March 26 of last year. When the rest of the country was celebrating ‘Super Saturday’ and the re-opening of pubs on July 4, Leicester was plunged into a local lockdown and has not come up for air since. Indeed, it is hard to find examples of bans on indoor mixing that have been in place longer – perhaps Peru and Argentina, which locked down on March 15 and 20 respectively.

The list of permitted linked households is longer than most people realise. To little fanfare, it was significantly expanded and relaxed on December 2 so that one household could form a ‘linked household’ or ‘support bubble’ with another household, provided the first household consists of:

  • One adult;
  • One or more children and no adults;
  • One adult and one or more children who were under the age of 18 on June 12, 2020
  • One or more adults and one or more children who were under the age of one on December 2, 2020.

There are a number of other exceptions where an individual has a disability or lives with a disabled child under the age of five.

The linked household exceptions share three characteristics. First, they increase the risk of viral transmission by allowing indoor household mixing. Second, the Government has nevertheless permitted them because it is humane to do so. Third, the various exceptions cannot be policed or enforced and so rely on trust.

One major omission is that couples can’t form a linked household unless at least one of them lives alone. That criminalises thousands of existing relationships, as well as stopping news ones from starting.

The Melbourne strategy

Not every country has made the same choices we have made.

Melbourne is the poster boy for the ‘zero Covid’ strategy and the proud enforcer of one of the most effective lockdowns yet devised. It has a style of legislation almost identical to our own.

Yet even Melbourne, during the height of its lockdown, permitted indoor household mixing and overnight stays where two people were in an ‘intimate personal relationship’. The Australians offer an off-the-shelf legal solution that could be signed into law tomorrow. So why don’t we do so?

The most formidable objection is, of course, that any release of the restrictions could lead to more cases and deaths. Unlike the other linked household exceptions, the intimate relationship exception could create links between more than two households (e.g. two or more flat-mates, each with a boyfriend or girlfriend). Social distancing would be challenging.

This objection, however, rests on the heroic assumptions that, first, people are not having sex because of this law and, second, they would be having sex were it not for this law.

Intuitively if not empirically, I feel that there are probably three broad categories of people. The majority of people will be more or less following the law, even at significant personal cost to themselves. If the Government removed the criminal sanction behind its sex ban and instead advised such people to act with extreme caution since we are the height of a pandemic, I do not believe that the sensible majority would take that as an invitation to go forth and multiply.

A second category is people who are in committed relationships and have been unwilling to give those up indefinitely during the pandemic. I do not see what purpose is served by criminalising these people.

The third category is people who are ignoring the rules. Here, the sex ban could be counterproductive. The appeal to sexual abstinence is surely the single most discredited public health policy there is (sex before marriage, HIV, etc). It not only doesn’t work; it gets in the way of giving public health advice that people might actually stick to.

The Terence Higgins Trust, which has decades of experience advising on this issue, is more pragmatic. It suggests alternatives to meeting up (an invocation of the twin Gods of lockdown, Zoom and Onan) before advising on how to minimise the Covid risk of sexual relationships. I could find no statistics on how many people have taken up its suggestion of “wearing a face mask during sex”.

A second objection is one of equity. The ‘intimate relationship’ exception favours people who are in a relationship over single people. Single people also miss the companionship provided by friendship and this does nothing for them.

That is undeniably true. The use of the criminal law to regulate people’s private lives can never account for the variety of human relationships or their importance to each individual. Nevertheless, as both a cultural and a legal matter, England tends to privilege romantic relationships over friendships when considering which are most important to sustain one’s private life. In any event, Zoom does a better job of replacing friendship than Onan does of replacing romance.

What makes an ‘intimate relationship’?

The third objection is the difficulty of definition. How does you define an ‘intimate personal relationship’?

My advice would be: don’t bother. Melbourne didn’t define it. All it had to put up with was public health academics saying things like: “I think we need some discussion around this word ‘partner’ … because there are some people who are clearly taking liberties with the word.”

The use of an ambiguous phrase like ‘intimate personal relationship’ would be a problem in an ordinary criminal law, but the coronavirus regulations are not ordinary criminal laws. None of the linked household exceptions are enforceable. At most they act as a guide to what behaviour is permitted and allow people to act on and discuss their relationships without the taint of criminality. If people believe themselves to be in an intimate relationship, they probably are.

If that doesn’t live up to the fine traditions of English legal draftsmanship, you could just draw another arbitrary and indefensible line, as with the other linked household exceptions – for example, romantic relationships that have lasted three months or longer.

It might be embarrassing for a minister to have to explain what they believe an intimate relationship to be, but embarrassment is rarely a good reason to avoid doing the right thing. Besides, we have a battle-hardened cabinet well accustomed to doing the media rounds to boast about how many scotch eggs they can eat in a single sitting.

The whole thing will add to the gaiety of nations. Ministers will end up on the Today programme arguing spiritedly over whether “intimacy” begins with swiping right on Tinder, or if there needs to be a period of lockdown wooing where you courier over slim volumes of poetry and bumper packs of Andrex. Purple with rage, Piers Morgan will ask whether this government is really so out of touch that it believes intimacy is merely a matter of the flesh rather than belonging to the realm of the intellect and the spirit. Corbynite conspiracists will write blog posts about bonking Boris introducing a pro-adultery law by the back door. This dark winter, it could be just what we all need.

There is, of course, a serious side to all of this. More than 1 in 1000 Britons have died from Covid and hospitalisations have passed their Spring peak. Almost everyone accepts that dealing with this situation requires painful trade-offs, but we should be clear-sighted about the trade-offs that we have made.

Beneath the glib term ‘lockdown’, there lie hundreds of decisions about which activities we will preserve, which we will advise against, and which we will prohibit under threat of criminal sanction. In England, we have decided that it is permissible for a young man or woman to work all day in a busy kitchen to make your takeout meal, but a criminal offence for them to return that evening to the person they love. That is a striking moral position. It will be more striking if Britain ends this pandemic having to admit to itself that the sex ban in Leicester was the longest such prohibition in force anywhere on the planet.

The intimate relationship exception is a minor concession to human nature. It would show that the Government recognises the importance of the relationships of young people, who have borne the brunt of the Government’s policies to contain the virus. It would be an optimistic note to sustain us until the Spring.

Let lovers meet in the New Year.

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John McMillan is a barrister.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.