Monday, 14 July 2008

Breastfeeding is NOT illegal !

In the many debates over recent months the same fallacies have been coming up time and time again, even from prominent people in the breastfeeding community who should know better.
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The fallacies are that the forthcoming Single Equality Act will legalise breastfeeding in public, that Scotland has already passed legislation making breastfeeding legal, and that breastfeeding is illegal in the rest of the UK under indecency and public order laws. These inaccuracies are now so ingrained they have been recently quoted as fact in national news reports (Daily Mirror, and until the story was pulled when the errors were pointed out to them [edit 20/7/08 'and replaced with a story substantially rewritten with all references to illegality removed'], even the BBC).
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I'll do these in reverse.
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Firstly breastfeeding in public is perfectly legal in England and Wales. The Indecency Act is an arcane piece of legislation dating back to Victorian times. One clause held it to be indecent to exhibit your person in public. A famous test case defined what this meant. Exhibiting your person was a Victorian euphemism for flashing [edit 20/7/08 'male public exhibitionism' - use of the term for accidental or deliberate exposure of breasts is very recent ]. So women were held to be incapable of indecency under this clause as they didn't have a 'person' to exhibit!
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This lady is legal in public






This gentleman is highly illegal in public!




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So any prosecutions would have to be attempted under another clause making it indecent to exhibit 'lewd and lascivious behaviour' ! In the theatre until the 1960's this was held to only apply in certain circumstances. This was the famous 'if it moves it's rude' rule that the Windmill theatre exploited. As long as their girls were absolutely stationary they were fine.
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There has never been any indication from the Government, police, courts or any official body that under any circumstances would breastfeeding in public be regarded as 'lewd and lascivious' behavior. There has never been any arrest, let alone trial or conviction, and any decent lawyer would get this laughed out of court instantly by showing the sexual inadequacies of those prosecuting if they suggested that they found breastfeeding 'lewd'.
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To repeat - merely showing a naked breast, with or without a naked nipple, is never indecent. The indecency laws do not and never have applied, and any suggestion that they do is helping the opponents of breastfeeding discourage public breastfeeding.
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As for conduct liable to cause a breach of the peace, there has been only one recent arrest [edit 20/7/08 : I must correct this, 'threat of arrest' - many reports on web do not reflect even this, although my personal recollection from live reports at the time differs, memory is not infallible! ], in Norfolk, and the Chief Constable personally apologised. To establish conduct liable to cause a breach of the peace you have to show why it will cause a breach of the peace. The Association of Chief Constables and the Crown Prosecution Service have unofficially let it be known that there are no circumstances that would ordinarily merit arrest and prosecution. You would have to be doing something else as well! Breastfeeding topless whilst blind drunk and waving a baseball bat would probably do it! But we are talking that level of aggravation.
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Unfortunately most policemen are not highly trained in negotiating outcomes to difficult situations, and if faced with people objecting to breastfeeding in public will take the easy way out and ask the breastfeeding mother to stop. Policemen don't want the correct solution, they want the fast and easy solution. So you may be legal, but still encounter problems.
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Which neatly brings us to Scotland.
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Scotland did not pass a law legalising breastfeeding. Breastfeeding, as in England and Wales, was never illegal!
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So what did Scotland do? They passed a law making the harassment or stopping of feeding a baby (up to two years) illegal. This took any ambiguity away and let policemen know that the appropriate course of action was arresting the other party and supporting the breastfeeding mother as a victim of a crime!!! Hurrah! [Breastfeeding etc. (Scotland) Act 2005]
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This was much more important than legalising the already legal. This was a massive blow against lechers, the chronically socially conservative and the outright stupid.
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So of course the Single Equality Act will bring in the same protection in England. Oh, I wish. It certainly will not legalise breastfeeding in public, it is already legal. So what will it do?
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Well at the moment nobody actually knows outside a select few drafting the bill. There has been an 'official rumour'. Which has the merit of testing the waters, being deniable later, and committing the government to nothing.
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So far the government said that they would have draft legislation in the Green Paper (it wasn't there), as part of the discussion papers sent out for consultation (completely missing), and as part of the papers giving the final drafts of the act so far released (ah, you guessed! - conspicuous by its absence).
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We'll have to make do with the official rumour (at a closed press conference, unattributable).
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This is that under the Sex Discrimination clauses of the bill, a clause will make it an offence to stop feeding of a baby under six months, in an establishment where food is normally served. For this privilege a mother will be able to bring a sex discrimination case, leading to cash compensation. By the time that is settled through tribunals and courts, if a mother has the time and money to bring the case (legal aid?- not in this universe), then the child will be well established in school.
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Actual positive impact is practically zero.
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Unfortunately following the law of unintended consequences the negative impact could be immense. By defining where it is unlawful to stop a woman breastfeeding in such a narrow way, it implies that it is lawful to stop a woman breastfeeding elsewhere. There are also problems such as defences that the offender reasonably thought that the baby was over 6 months; as rumoured the problems of mothers and fathers bottle feeding, as only breastfeeding has been specifically mentioned as being in any way protected so far; feeding areas?, it is a lawyers nightmare.
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Let us be absolutely clear. Nothing in the Single Equality Act as reported will make breastfeeding illegal anywhere, but what it may be doing is making it legal to request a parent or caregiver feeding a baby to stop and do it elsewhere, except in very narrowly defined circumstances, for which the penalties are silly. Far from helping breastfeeding it may well set it back 50 years.
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There are things you can do about this if you want to. See Morgan Gallagher's excellent blog for instance. I can guarantee that the storm of protest so far building, will rise to a hurricane as soon as the exact details are confirmed (presuming the government doesn't chicken, and decide 'to include it in a future act').
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But as an immediate practical act, whenever you hear anybody claim that breastfeeding in England and Wales is illegal in public, stomp on it. It is not true, but is one of those ugly lies that has developed a life of its own.


3 comments:

Mike Brady said...

For information on human rights conventions protecting the right to food and their relevance to protecting the right to breastfeed in public, see:
http://boycottnestle.blogspot.com/2008/07/right-to-feed-baby.html

Graeme Stickings said...

I have been doing quite a bit of thinking on this, and you have done a good job articulating this legal opinion.

The Deputy Minister for Women and Equality has said something similar in some local newspapers

However, my understanding is that for legal opinion to become legal fact requires a court ruling or enacting of legislation.

The worry I have is the police officer, who believes it is illegal, arresting a mother and the mother, so she can get her baby back, which I would assume would be taken from her, accepting a police caution, thus giving her a criminal record which could have further serious repercussions.

If we had that scenario, would it get that far?

This is why we need legislation ASAP, as the minister says in her letter to make the law clearer.

David said...

Thank you Graham, I quite agree.

The wording in the Scottish legislation never though actually articulates that breastfeeding is legal! I presume that is to avoid any remaining suggestion that breastfeeding at any point was not legal.

The vagaries of British police mean that they do act ultra vires. (See today's BBC news http://news.bbc.co.uk/1/hi/england/7520598.stm for a blatant example), and there is little we can do at present except make parents aware of the true legal position so that they will have the strength to stand up for their rights.