Feature: The long road to decriminalisation
40 years ago this month, a campaiging Welsh Labour MP by the name of Leo Abse managed to guide a Bill through both Houses of Parliament.
By a combination of smart tactics and appealing to politicians to pity those ‘less fortunate’ than themselves, he got them to agree to a partial decriminalisation of male homosexual relations.
It brought an end to hundreds of years of legal persecution, as Alex Bryce explains.
For many people the so-called swinging 60s was a time of sexual liberation, but for gays and lesbians it was a decade of repression and discrimination.
While their heterosexual brothers and sisters were enjoying their sexual awakening, gripped by the sunny optimism for which the 1960s are remembered, homosexuals were still forced to live in secret, faced with the constant threat of prosecution and imprisonment.
Not until 1967, after a tireless, and often bloody, struggle with the establishment, was male homosexuality partially legalised.
The first significant reference to laws against homosexuality in England occur in 1376, when the ‘God’ Parliament petitioned King Edward III to banish all “Lombard brokers” and other foreign traders, particularly “Jews and Saracens.”
They were accused of introducing “the too horrible vice which is not to be named” which they believed would destroy the realm.
In 1533, when King Henry VIII reformed the church and curtailed the power of the clerical courts, “The Abominable Vice of Buggery” (anal intercourse between two men) first became a criminal offence.
It carried the death penalty and even in the early nineteenth century gay men were still being executed, with an average of two hanged each year between 1806 and 1836.
The laws were finally amended in 1861 after twenty-five years with no executions.
The changes meant that the crime no longer carried the death penalty.
Instead, those found guilty of buggery would be sentenced to life imprisonment.
Attempted buggery carried a 10 year sentence.
In 1885 the Labouchere Amendment was introduced which extended the law to include “gross indecency” (oral sex between two men) which was punishable by a two-year prison sentence.
Although there aren’t many recorded cases of executions until the nineteenth century, which could be due to inadequate records, punishments in other countries, particularly British colonies, were more frequent and severe.
Henry VIII’s Buggery Act, which was re-enacted by Elizabeth I in 1563, was adopted in all 13 original colonies, where the crime was punishable by death.
There were, however, many recorded casualties of the anti-gay laws in England in the nineteenth and early twentieth centuries, perhaps the most high-profile being that of Oscar Wilde whose trials in 1895 shook the literary and celebrity world.
The subject of the trial was Wilde’s relationship with the promising young poet Lord Alfred Douglas (known as Bosie) which was discovered by Douglas’ father, the Marquess of Queensberry.
By 1894 Queensberry had concluded that Wilde was most likely homosexual and became insistent that his young son would stop seeing him.
In a letter to his son in April 1894, Queensberry wrote, “Your intimacy with this man Wilde must either cease or I will disown you and stop all money supplies … I am not going to try an analyse this intimacy, and I make no charge; but to my mind to pose as a thing is as bad as to be it.”
Douglas replied in a telegram: “What a funny little man you are.”
As Douglas’ relationship with Wilde flourished, his father’s anger became more acute.
In a subsequent letter, Queensberry wrote, “You reptile.. you are no son of mine and I never thought you were.”
Douglas answered, “If O. W. was to prosecute you in the criminal courts for libel, you would get seven years’ penal servitude for your outrageous libels.”
After Queensberry left a calling card for Wilde at a club he frequented which read “For Oscar Wilde, posing sodomite,” the acclaimed playwright made the fatal mistake of going to court.
The first of the three trials of Oscar Wilde in April 1895 saw him cheering the prosecution as Queensberry, charged with libel, faced the dock.
The libel trial became a cause celebre as Wilde’s association with rent boys, cross-dressers and blackmailers and his affairs with young men began to appear in the press.
Despite his literary friends such as George Bernard Shaw urging him to drop the case, Wilde was determined to persist, despite the damage to his reputation.
Although he had regained some ground while defending the morality of his famous novel, The Picture of Dorian Gray, when challenged on the reason given for not kissing a young servant, Wilde replied: “He was a particularly plain boy – unfortunately ugly – I pitied him for it.”
Under cross-examination he started to falter and was eventually forced to drop the case against Queensberry.
Immediately afterwards, a warrant for his arrest was issued for gross indecency and, although the first trial reached no verdict, he was tried again and sentenced to two years of hard labour.
Wilde’s health seriously deteriorated while he was in prison and on his release in May 1897 he was penniless and remained in exile from society.
He died three years later after living under the assumed name of Sebastian Melmoth.
Although the other stories of lives cut cruelly short and damaged by the criminalisation of homosexuality are not as well-known as that of Oscar Wilde, some are equally tragic.
One such case was highlighted by the writer J.R. Ackerley in a letter to The Spectator in 1942 expressing his outrage at a story he had stumbled across in the Welsh town of Abergavenny.
He found that twenty men were put on trial for homosexual behaviour and as a result a nineteen-year-old took his own life by throwing himself in front of a train. Two others endured failed suicide attempts.
The sentences which were issued ranged from one to twelve years.
Despite all the protestations by Ackerley, the subject of the treatment of homosexuals remained unmentionable.
After the Second World War, the number of men being prosecuted for consensual homosexual acts rose drastically from what had been around 500 per year in the 1930s to 1,666 in 1950 and 2,504 in 1955.
Reminiscent of the Salem witch trails and fuelled by the atmosphere generated by the McCarthy period, chain prosecutions became common, with witnesses being offered immunity to name other gay men.
Address books of the accused were trawled through by police resulting in multiple arrests and accusations that they belonged to a ‘homosexual ring.’
In the 1950s the anti-gay laws and aggressive police activity in upholding them became the subject of media scrutiny after a series of high-profile arrests.
In 1953 Labour MP William Field was arrested and charged with ‘importuning men for an immoral purpose’ and as a result lost his Parliamentary seat.
Soon after actor Sir John Gielgood was arrested in a public toilet, having been discovered in a compromising position with a soldier.
The following year, after reporting a theft to the police, Lord Montagu was arrested and eventually sent to prison along with two of his close friends, one of whom was his cousin.
However, in the aftermath of this famous trial, the public mood began to shift.
This was reflected in a Sunday Times editorial published just a few days after the trial concluded.
It argued that the case for law reform regarding “acts committed in private by adults is very strong.”
Soon after, the House of Lords held the first ever debate on homosexuality in Parliament which, in turn, lead to the Wolfenden Committee being set up by the Home Secretary, David Maxwell-Fyfe.
Incidentally, Maxwell-Fyfe led the opposition to law reform in the Lords, so it is ironic that immediately afterwards he commissioned the Wolfenden Committee.
It is likely that he assumed that the Committee would find against law reform, but what he didn’t realise that Sir John Wolfenden himself had a gay son who openly wore make-up.
The Wolfenden Committee sat for three years and strongly recommended that homosexual acts in private should no longer be illegal and recommended that the age of consent should be set at 21.
However, the basis for the Committee’s argument was that the law was impractical and a waste of police time rather than that it was unfair or immoral.
Its conclusions made frontpage headlines which in turn projected the debate onto the national stage and on the whole the press coverage was favourable with the exception of the right-wing, low-brow press.
The Guardian described the report as “a fine piece of work” and even the conservative Telegraph called it “courageous.”
Some historians see Wolfenden as a key turning point, a watershed which led the eventual law reform which came ten years later.
Others argue that the Committee’s influence was limited and that the ten years of campaigning which followed were key to securing decriminalisation.
However, whatever people say about Wolfenden and its limitations, it certainly set the stage for reform of the law.
It also became clear that public opinion was starting to change.
In 1958, the Lord Chamberlain overturned the ban on plays with homosexual themes, which paved the way for a series of hugely influential gay-themed works and, in turn, contributed to the gradual change of public mood.
Soon after Wolfenden’s report was published, several attempts were made in Parliament to introduce legislative reform acting on its conclusions.
In 1960 there was a motion in the House of Commons calling on the Government to take early action to implement legal reforms.
This proposal was easily defeated by a Conservative Government reluctant to act for fear of a backlash from the right-wing tabloid press.
Incidentally, Margaret Thatcher, who later became a sworn enemy of gay community, was among the few Conservatives who voted in favour of implementing Wolfenden’s recommendations.
Another watershed development in the march toward decriminalisation was the establishment of the Homosexual Law Reform Society.
Its principle aim was to persuade parliamentarians to decriminalise homosexual acts.
Its first public meeting was held in London in 1960 and attracted over a thousand people, which was astonishing given that to be openly gay was to flout the law.
When the Tory Government was defeated by Labour in 1964 and determined reformer Roy Jenkins was appointed Home Secretary the prospects for future legal reform looked brighter for the gay community.
However, Labour only had a tiny majority in Parliament, which left them in a precarious position.
Therefore, on the surface, they were almost as reluctant to pursue legal reform as the Tories had been.
One particularly startling feature of the push for legal reform in the Sixties, which draws a stark contrast with recent gay rights legislation, was that in Parliament the House of Lords led the way.
In 1965, Lord Arran, an elderly peer who was considered somewhat eccentric (he had a pet badger), sponsored a Private Members Bill in the House of Lords which proposed the enactment of the Wolfenden recommendations.
The Bill eventually ran out of parliamentary time and was therefore shelved, but it did contribute significantly to the growing pressure on the Commons and the Government to reform the law.
After a failed attempt by a Conservative MP, Humphrey Berkley, Leo Abse tabled a 10-Minute Rule Bill in July 1966 which was supported by Home Secretary Roy Jenkins.
The tone of the debate which ensued in Parliament was particularly offensive to homosexuals.
Opponents of decriminalisation referred to gays as “disgusting,” “loathsome” and “not real men,” and even those supporting decriminalisation seemed to do so out of a patronising sense of pity more than anything else.
When Abse’s bill decriminalising homosexuality crawled through the final stages in Parliament forty years ago last week, it was a shabby and wholly unsatisfactory thing which did little apart from decriminalising homosexual acts in private.
The age of consent was set at 21 (compared to 16 for heterosexuals) and the maximum penalty for any man committing ‘gross indecency’ (any sexual acts including masturbation and oral sex) with a 16 to 21 year-old was raised to five years.
The bill also only decriminalised male sexual relationships in private, which meant that many men were still convicted for ‘procuring’ (which amounted to chatting someone up in a bar) and ‘soliciting.’
Despite the change in the law, gay men were not given legal equality and continued to be imprisoned for actions which would not have been criminal if there partner was a woman. I
In fact, between 1967 and 2003 up to 30,000 gay men were convicted for behaviour that would not have been illegal if they were heterosexual.
Yet, to give a fair assessment of the 1967 Sexual Law Reform Act, we have to take a closer look at the context.
The Labour Government were in a precarious position and were so preoccupied with holding onto power that they would never see the reform as a priority.
Additionally, as Abse himself claimed recently in an interview in The Observer, the supporters of the bill had to use all their political acumen to drag it through a parliament which was still, on the whole, hostile.
If the age of consent had not been set at 21, then perhaps the bill would have never been passed. This inevitably meant making concessions.
The passing of the act paved the way for increasing social, if not political, liberation for the gay community.
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Gay publications such as Timm and Spartacus were launched and the Committee for Homosexual Equality was formed, which began to lobby for a lower age of consent.
Eventually, after much opposition, even from Abse himself, gay social networks were formed.
Despite its significant limitations and its distinct lack of ambition, the Sexual Law Reform Act drastically changed the lives of a generation of innocent gay men who were imprisoned for behaviour which was completely natural to them.
As with the more recent reforms, in fighting for equality, it was crucial to stay within the mainstream, which often necessitates being less ambitious and taking baby steps rather than giant leaps towards the eventual goal.
As a gay rights campaigner, that is the most difficult, and perhaps the most tragic, part of fighting to put right injustice and prejudice in our society.
Seeing the Act as a watershed for gay rights is perhaps overestimating its influence, but I am certain that it was the first of many small steps along the forty-year road from criminality and shame to equal rights and pride.