This year marks the 50th anniversary since the passage into law of the Sexual Offences Act 1967, which made consensual sex between two men in private aged 21 and over, legal. Public acts, or acts involving more than two men, could still be the subject of prosecution. Sex between women was not mentioned. The events leading to the enactment of this historic piece of legislation are fascinating – not only in terms of how far we have come, but also how long it took us to get there and, when we pause to look at the world, how far we still have to go in our fundamental understanding and approach towards equality.
Homosexuality between men was first made illegal in England under the reign of Henry VIII by way of the Buggery Act of 1533, pioneered by Thomas Cromwell. England was the first ‘Germanic’ country to impose such a law whose crime was punishable by hanging, a punishment not formally lifted until 1861 in the Offences Against the Person Act. This became stricter still in 1885 when s 11 of the Criminal Law Amendment Act, known as the ‘Labouchere amendment’, made all homosexual acts illegal, even those carried out in private. Perhaps the most famous prosecution under the 1885 Act was that of Oscar Wilde in 1895. He was convicted and sentenced to two years’ hard labour and tragically died in Paris in 1900 aged just 46.
Consensual sex between women had not traditionally been the focus of specific criminal sanction, although there had been a number of prosecutions of women for indecent assault. In 1921 a proposal to make acts of gross indecency between women illegal, also under the 1885 Act, was passed in the House of Commons but was subsequently defeated in the House of Lords. This was on the basis of concerns that the law would only increase lesbianism by advertising it to women. The Earl of Malmsbury stated to the House that: ‘The more you advertise vice by prohibiting it the more you will increase it.’
High-profile arrests lead to Wolfenden rethink
After the Second World War, arrests and prosecutions for homosexuality increased. This led to a number of high-profile arrests, resulting in over 1,000 men being imprisoned. One of the most notable victims was Alan Turing, the cryptographer who helped to break the German Enigma code. He was convicted of gross indecency with a man in 1952 and was forced to choose between prison or hormone treatment; he chose the latter. He also lost his job. His death in June 1954 was treated as suicide. Both he and Wilde, amongst others, were posthumously pardoned but not until 2013.
In 1954 the government, troubled in particular by these high-profile prosecutions, established the Wolfenden Committee. The tensions leading to the creation of the committee, chaired by John Wolfenden (pictured), were the conservative aims of controlling homosexuality and overt prostitution on the one hand, and the more liberal goals of seeking a different, more modern way of approaching the issue on the other. Alfred Kinsey, the US sexual psychologist’s view steered the committee with his more matter-of-fact approach to sex and homosexuality. For the first time, openly gay men were able to give evidence to the committee to speak bravely and personally about their experiences and persecution.
The Wolfenden Report was published in September 1957. At the core of its recommendations was the distinction between private actions and public order and what should be the subject of state intervention in the interests of the public. The report proposed that it should not be the function of the law to regulate private behaviour that did not harm anyone else, however distasteful others might find it. Its role was to establish the framework of public order not to interfere with private, individual choices. It would take another ten years for the Sexual Offences Bill to be tabled and after two years of debate it was passed into law in 1967. A truly historic moment, which is perhaps all the more important when you consider the context of the views which still persisted at the time. Even when debated at its second reading in the House of Lords by supporters of the Bill, some arresting comments were made (see box, p 34).
Legal messages from our more recent past
The law may have been changing but attitudes were slow to catch up. The Wolfenden Report, however, was an important catalyst for change and sent a very powerful message to society. The Criminal Justice and Public Order Act 1994 reduced the age of consent for men in England and Wales to 18, and in 2001 to 16. The LGBTQ community’s goal of acceptance and equality over the years owes much to growing education and movements such as the trade unionists and coal miners who marched in solidarity with the gay community at the pride march in 1986, alongside European discrimination legislation, and a greater social understanding of human rights and equalities. The Civil Partnership Act 1997 was again an important legal message in terms of the recognition of same-sex partnerships for men and women followed by the Equal Marriage Act in 2013, just four years ago, enabling for the first time, same-sex unions to be given the same legal recognition as those of heterosexual couples.
Sadly, with all of this progress remain the harrowing stories of LGBT persons being attacked just for being who they are. We still live in a world where gay relationships are illegal in 74 countries, in 13 of which being homosexual is punishable by death. And in the UK only in April 2017 did Andrew Turner, former MP for the Isle of Wight, express views to a group of young students that homosexuality was ‘a danger to society’. So this year we celebrate 50 years of a piece of legislation that set us on a path towards greater tolerance and acceptance and understanding of appropriate boundaries of state intervention into private lives. Progress has been made, and one can only hope that as a society, given the current challenges we face, we can maintain that same symbol of morality and tolerance and do not slip back into past phases of hatred and punishment. If the law and society can learn anything from experience it should be that it is only when we treat people with dignity and respect that we all become much richer and happier human beings. ●
Contributor Claire Fox is a barrister at Pump Court Chambers and Co-Chair of the Bar Lesbian and Gay Group
1967: ‘sexual misfits’ to be saved by ‘power of prayer’: extracts from house of lords debate
Lord Byers is recorded as stating: ‘Not before time, the law really is in the process of being changed – not in order that society will accept the homosexual, but so that the homosexual will be able to come to terms with himself. I believe that the present law is ill conceived and unjust, and my sympathy – even though I abhor homosexual practices – goes out to this oppressed minority. I feel certain that reform along the lines of Wolfenden will not only give better protection to young people in the future, but may well reduce the number of people actually suffering from this problem….
‘The passing of the Bill will enable the psychological and physiological sexual misfits to live in the way they choose without fear of prosecution or persecution.’
Lord Rowallan was recorded as describing homosexuality as a ‘disability’ which could be overcome with the ‘power of prayer’.