Case in point | A 'Jailhouse Rock' for 2013

Elvis Presley's 1957 hit 'Jailhouse Rock' contains, perhaps unexpectedly, pop's first lyrical evocation of love between prisoners: "Number forty-seven said to number three, / You're the cutest jailbird I ever did see; / I sure would be delighted with your company, / Come on and do the jailhouse rock with me".

And it is the sexual activities of number forty-seven's and number three's English brethren that the Howard League for Penal Reform will report on in 2014. To gather evidence for what might prove to be the Kinsey Reports for prisoners, the Howard League's Commission on Sex in Prisons last month invited readers of the prisoners' paper Inside Time to speak of their experiences of sex in the slammer. But what of sex between inmates and their sweethearts 'on the out'? Why does this country still refuse to permit conjugal visits? Should the carceral and the carnal now meet and should prisoners be free to have sex?

Carceral and carnal

Gone are the days when prisoners are the civil dead, treated in law as if deceased. Inmates retain all rights except their liberty, with any ancillary encroachments, for instance, on privacy being justified only by legitimate security concerns. This principle has led to the Strasbourg court's decisions against the ban on prisoner voting (Hirst v United Kingdom (No.2) (2006) 42 EHRR 41) and the near-prohibition on inmates' access to artificial insemination (Dickson v United Kingdom, Application 44362/04).

So why can prisoners not have sex with loved ones during visits? A prisoner may marry when imprisoned, even when his proposed spouse is a prosecution witness in his murder trial who would then not be a compellable witness (see Re J and B [2002] EWCA Civ 1661). Why then should prisoners be the civil dead from the waist down?

The conjugal visit is not unknown in the USA's state prisons and over half of all European states allow penal trysts. However, although the European Commission on Human Rights (now abolished) in X v United Kingdom (1975) 2 DR 105 recognised that the rights to privacy and to marry were engaged by this country's blanket ban on conjugal visits, the strict prohibition was deemed lawful to prevent disorder in prisons. Even where a husband and wife were held in the same prison, the commission again held that maintaining a jail's good order justified a ban on sex between the incarcerated spouses (see X & Y v Switzerland (1978) 13 DR 241). The commission then concluded in ELH v United Kingdom (1998) 25 EHRR CD158 that withholding conjugal visits from Catholic prisoners, for whom conception by artificial insemination would defy papal authority, was lawful.

Conjugal visits eventually came before the Strasbourg court in Aliev v Ukraine (Application 41220/98), where the issue was obscured perhaps by the applicant's numerous complaints, ranging from the number of his daily walks to the delivery of his parcels. The Fourth Section followed the commission's reasoning but did not examine what disturbances were actually prevented by banning conjugal visits.

Significantly in Aliev, the judges found that prohibitions on conjugal visits could only "for the present time [emphasis added] be regarded as justified" (at [188]). The trio of commission decisions on conjugal visits and Aliev must now be read in the light of the Strasbourg court's pioneering judgements on voting and reproductive rights in Hirst and Dickson.

Romantic interludes

When considering artificial insemination for prisoners in Dickson, the Grand Chamber remarked on the "evolution in several European countries towards conjugal visits" (at [81]) and noted the chamber's earlier approval for this development in Aliev. Ironically, it is Dickson's dissenting opinion, which rejected the majority's view that the United Kingdom's tight limitations on artificial insemination for prisoners was disproportionate, that demonstrates the contradictoriness of prisoners' having a limited Convention right to artificial insemination but not to sex with their partners: "we fail to see how it can be argued that there is no right to conjugal visits in prisons, but that there is instead a right for the provision of artificial insemination facilities in prisons" (at [115]).

So, at what point will a European consensus on conjugal visits develop that will undermine signatory states' margin of appreciation on whether prisoners may enjoy romantic interludes with their opposite-sex (and, in the near future, same-sex) husbands and wives, civil partners and long-term boyfriends and girlfriends? And if many countries have permitted conjugal visits without triggering penal unrest, what can justify a continued ban on prisoners' having sex with their spouses? Indeed, promoting prisoners' relationships with their partners by allowing them to continue their sex lives might be an aid to rehabilitation by ensuring that prison widows stand by their men and women. But if David Cameron felt physically sick at the thought of prisoners' voting, how queasy will he feel when lags could be enjoying conjugal visits?

By exploring sex in prisons, the Howard League might well prompt a further challenge to those mounted in the 70s and late 90s against this country's antipathy to conjugal visits. For now, as suspicious minds run prisons, inmates pining for their spouses will have to be lonesome tonight. Perhaps 'Jailhouse Rock' has the answer: "The warden said, hey, buddy, don't you be no square, / If you can't find a partner use a wooden chair".