9. Offences against Decency or Morals Committed in Public

et consentientes pari poena plicantur". Also, the English rule now is that “it is not necessary to prove the offence to have been committed against the consent of the person upon whom it was perpetrated"; and that "both agent and patient (if consenting) are equally guilty”369 .

Our Section 220 punishes acts of lewdness against nature, that is to say those acts consisting in the unnatural carnal connection of two persons of the same sex or of different sexes, but committed without violence actual or constructive, or in the connection of a human being with an animal. “La disposizione dell’articolo 201 (now 220) abbraccia ogni congiungimento carnale contro le natura, senza distinzione fra congiungimento di un uomo con un altro maschio o femmina, chiamato nell'antica giurisprudenza “sodomia”, e congiungimento di un uomo dell'uno e dell'altro sesso con una bestia, in quella stessa giurisprudenza chiamato “bestialità”, e non presentando esse alcuna ambiguità non permette una interpretazione tendente a darle un significato diverso da quello che naturalmente portano le sue parole"370 .

Section 221 lays down that the crime shall be deemed to be complete by the commencement of the connection and it shall not be necessary to prove further acts. This rule applies to all crimes under the Title of Crimes Affecting the Good Order of Families to constitute which there must be a carnal connection.

Section 223 punishes any offence against decency or morals by any act committed in a public place or in a place exposed to the public, in cases where the fact does not constitute a greater offence under Sections 217 to 222 or some other provision of the law.

The object of the protection of the law under this section is public decency or morality. Publicity is therefore the essential basis of this offence. From this it follows that the

369 Archbold, Op. cit., p. 1071 370 Criminal Court, Three Judges, 16/5/1892, R vs C. Sciberras; and 18/11/1907, R vs Edw. Laughlin, Cremona, op. cit., p. 162

offending act may even be one which, if done in private, would be perfectly legitimate (e. g. normal sexual intercourse between husband and wife)371 .

The material element of the crime must consist in acts. Mere words might constitute some other offence (e.g., Sections 161 & 352(z)), but not this offence372 . But, under a provision identically worded as ours (art. 338 of the Italian Code of 1889), it was held that the acts need not be "acts of lewdness," nor necessarily consist in exhibition of the private parts; embraces or other acts accompanied by such circumstances or words as offend the sense of decency were held to be sufficient373 .

The offending act may be committed on the person of another, or on one’s own person, as for instance by the agent exposing his naked body or masturbating himself.

As we have already said, the characteristic element of this offence is that the offending acts shall have been committed in a public place or in a place exposed to the public. A place can be public either in a permanent manner, as a street or a square, or at certain times, as a theatre or a church. If the act is done in a place of the former category, it shall be deemed to have been committed in public whatever the time of the day or the night it is done; if, on the other hand, the act is done in a place of the second category, it will be considered as constituting this offence only if it is committed at a time when the place is open or accessible to the public. But; precisely because the law punishes these acts even if committed in a place “merely exposed to the public”, it will be sufficient if the acts are done in a private place but in such a manner that they were visible to, or could have been seen by the public: “in luogo esposto al pubblico, e cioè' in condizioni tali da lasciar scorgere a chiunque non per singolare e fortuita eventualità, ma nell'ordinario dei casi, quanto vi si complet”374 . It is not necessary, however, that any person should have actually viewed the act or that there has “been actual scandal”375. If the place is public, then “ratione legis” the possibility of public scandal is presumed.

371 Vide Arabia, Principii del Diritto Penale, Part III, art. 345, p. 246; Maino, op. cit., art. 338 - 339, para. 1494; Pincherle, op. cit., p. 304, para. 595 372 Contra -- Pincherle, op. cit., p. 596 373 Maino, ibid.; Vide Police vs. Grima, 7/11/49, Law Reports Vol. XXXIII, Part IV, p. 965 374 Op. cit., para. 1495 375 Confer Carrara, Programma Parte Speciale, Vol.VI, paras. 2941, 2950