Back on the 5th May Professor Neil Ferguson was forced to resign from the government’s Scientific Advisory Group for Emergencies after it was reported that he had been visited on at least two occasions by his lover, thus breaching the social distancing guidelines in place at the time. It was Professor Ferguson’s apocalyptic Coronavirus modelling that led to the imposition of the severe lockdown to which we have all been subjected, embodied in the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020. However, whilst undoubtedly embarrassing to have been caught with his pants down, the professor had not actually broken any laws. He had not left the place in which he was living and at the time the restrictions on gatherings only applied to more than two people in a public place (his lover, on the other hand, may have struggled to convince anyone that she had a reasonable excuse for being out of the house).
However, as of 1st June it’s all change in the world of lockdown with the new Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 3) Regulations 2020 coming into force (http://www.legislation.gov.uk/uksi/2020/558/pdfs/uksi_20200558_en.pdf). If Professor Ferguson wanted to have his lover over for a cheeky tryst now, he would be committing a criminal offence.
Regulation 6, which prevented anyone from leaving their place of residence without a reasonable excuse has been substituted with a prohibition on staying overnight in any place other than the place where they are living. But unlike previously, where the list of reasonable excuses was (fortunately for Dominic Cummings) non-exhaustive, the new list is definitive.
Regulation 7, which restricted gatherings of more than two people in a public place has also been replaced and now applies to both public and private places. Outdoors a gathering is defined as more than six people, whilst indoors the definition is two or more. Reg 7(2)(a) clarifies that this does not apply were all persons gathering are members of the same household. There is again an exhaustive list of when a gathering may be reasonably necessary and includes for work purposes.
What this means for all non-cohabiting couples is that as of today it is a criminal offence for them to have sex indoors. This is an extraordinary imposition on our most fundamental freedoms, but is there any way for couples who do not live together to keep the flames of love alive in times of Covid-19?
Of course, a couple could take it outdoors. They would of course not be social distancing, but the 2-metre rule is simply guidance, not law. What they would have to be careful of is not to fall foul of other laws. Alfresco acts of affection could see them charged with exposure contrary to s66 of the Sexual Offences Act 2003. However, to be guilty of this offence, as well as exposing genitals, they would have to intend for someone else to see them and be caused alarm and distress.
The other potential offence is outraging public decency. To be guilty of this the act in question must be lewd, obscene or disgusting and of such a standard as to outrage minimum standards of public decency as judged by a jury in contemporary society. There must also be at least two persons present who could potentially see the act, even if they do not. Nevertheless, even if a couple could find a suitably secluded spot, they still may not wish to risk a potential prison sentence when the penalty for contravening the Regulations remains a fine.
Still, there may be another option available. The Regulations do allow for a gathering where it is necessary for work purposes. One of our hypothetical lovers could set themselves up as a very exclusive escort agency and spend as much time in the company of their other half as they wished. As long as they are being paid.