Abstract
Since the Wolfenden Committee’s mandate was to consider whether legal changes were necessary, the first document outlines the state of the law in 1954. This Home Office memorandum [i(a)] describes the three principal statutes that could ensnare men committing homosexual acts in England and Wales: sections 61 and 62 of the Offences Against the Person Act of 1861 (sodomy and attempted sodomy); section 11 (the Labouchère Amendment) of the Criminal Law Amendment Act of 1885 (gross indecency); and section 1 of the Vagrancy Act of 1898 (persistent soliciting and importuning). (By the time that the Committee reported in 1957, the Sexual Offences Act of 1956 had consolidated and replaced much of this legislation.) The second memorandum, from the Scottish Home Department [i(b)], points out that only the 1885 statute applied to Scotland as well. Instead, unlucky males committing sexual acts with other males might fall foul of the common law or of provisions in the Immoral Traffic (Scotland) Act of 1902 and the Criminal Law Amendment Act of 1912.1 The third document, courtesy of Sir John Nott-Bower, Commissioner of the Metropolitan Police [i(c)], provides more detail about the offences, about the potential penalties and about the statistics of arrests, charges and sentences for 1953 in London—including additional ways of targeting homosexuals: municipal by-laws for gross indecency and the use of the Metropolitan Police Act of 1839 to clean up indecent or disorderly conduct in pubs.
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Notes
The more relaxed attitude of the Scottish police was seen in the testimony of W. Hunter and James A. Robertson, Assistant Chief Constables of the Edinburgh and Glasgow police respectively (HO 345/16, 10 Apr. 1956, QQ5141–281). Robertson, for example, outlined a few cases—of male prostitution, a brothel serviced by youths, gross indecency and associated robberies and blackmail and apparent homosexuals congregating in a hotel lounge (QQ5141–54)—but asserted: ‘We do not seem to have a really big problem in Glasgow, so far as we know’ (Q5141). For a more equivocal stance by the magistrates of Glasgow, see HO 345/16, 9 Apr. 1956, QQ5010, 5038–9 and passim. The lower prosecution rate in Scotland was partly a result of a higher evidential standard: the need of ‘corroboration’—that is, more than one witness (see, for example, HO 345/16, Mr. Lionel I. Gordon, O.B.E., Crown Agent, 9 Apr. 1956, QQ4887–97). For more detail, see Davidson and Davis, Sexual State, pp. 45–6; Wolfenden Report, ss. 9–11, 136–40; Brian Dempsey, ‘Piecemeal to Equality: Scottish Gay Law Reform’, in Leslie J. Moran, Daniel Monk and Sarah Beresford (eds), Legal Queeries: Lesbian, Gay and Transgender Legal Studies (London: Cassell, 1998), pp. 156–7.
Wolfenden, Turning Points, p. 137. On the policing of West End lavatories since the 1920s, see Mort, Capital Affairs, pp. 157–9. For evidence of policemen targeting homosexuals as an easy way to improve their conviction rates, see Wildeblood, Against the Law, pp. 174–5 and below, II: 3(a); Harry Daley, This Small Cloud: A Personal Memoir (London: Weidenfeld and Nicolson, 1986), pp. 101, 112, 156–8, 213.
Home Office statistics revealed that of the 71 cases of blackmail reported to the police in England and Wales between 1950 and 1953, 32 were connected with allegations of homosexual acts (HO 345/3: Note by the Secretary, 22 Apr. 1955; Wolfenden Report, s. 110). For a discussion of postwar homosexual blackmail, see Angus McLaren, Sexual Blackmail: A Modern History (Cambridge, MA: Harvard University Press, 2002), pp. 222–38; Croft-Cooke, The Verdict of You All, pp. 145–8. The Wolfenden Report, ss. 109–11, recognized but tended to downplay the significance of the law in inciting blackmail for homosexual acts; but it did recommend that men who reported to the police that they were being blackmailed for homosexual offences should not then be prosecuted for those offences (s. 112).
Under section 21 of the Criminal Justice Act, 1948, an offender became liable to preventive detention if he was aged at least 30, had three previous convictions since the age of 17 for offences punishable by at least two years of imprisonment and had served sentences on at least two of those occasions. See Leslie T. Wilkins, ‘Persistent Offenders and Preventive Detention’, Journal of Criminal Law, Criminology and Police Science, 57, 3 (1967), 312–17.
This could be from Thomas Burke, For Your Convenience: A Learned Dialogue, Instructive to all Londoners and London Visitors, Overheard in the Thélème Club and Taken Down Verbatim by Paul Pry (London: Routledge, 1937).
Kenny drew on Jeremy Bentham’s Principles of Morals and Legislation, chap. xv, and his Principles of Penal Law, II, 1.4. See Courtney Stanhope Kenny, Outlines of Criminal Law: Based on Lectures Delivered in the University of Cambridge, 15th ed., rev. G. Godfrey Phillips (Cambridge: Cambridge University Press, 1936), pp. 28–30. Given Bentham’s (unpublished) advocacy for the abolition of anti-sodomy laws, it is ironic that his principles should be used to argue the opposite case. See Louis Crompton (ed.), ‘Jeremy Bentham’s Essay on “Paederasty”’, Parts 1 and 2, Journal of Homosexuality, 3, 4 (Summer 1978), 383–405, and 4, 1 (Fall 1978), 91–107.
This was the language of section 61 of the Offences Against the Person Act, 1861. The most famous statement of revulsion against peccatum illud horribile, inter christianos non nominandum—the ‘horrible sin not to be spoken of among Christians’—appears in William Blackstone, Commentaries on the Laws of England, IV (1769), p. 215. An earlier formulation had appeared in Sir Edward Coke, The Third Part of the Institutes of the Laws of England (1644), chap. 10.
Alfred Kinsey, Wardell Pomeroy and Clyde Martin, Sexual Behavior in the Human Male (Philadelphia, PA: W. B. Saunders, 1948).
The phrase is sometimes attributed to the barrister and High Court Judge Sir Travers Humphreys (see, for example, Higgins, Heterosexual Dictatorship, p. 98), but in his ‘Foreword’ to H. Montgomery Hyde, The Trials of Oscar Wilde (London: Penguin, 1962), p. 12, Humphreys attributed it to ‘a learned Recorder’.
The memoranda of the War Office (II: 1, v(d)) and of the Lord Chief Justice (II: 1, iii(j)) painted a different picture. For the assertion that prostitution in the Guards continued into the 1960s, see Simon Raven, ‘Boys Will Be Boys: The Male Prostitute in London’, Encounter, xv, 1 (July 1960), 19–20; Matt Houlbrook, ‘Soldier Heroes and Rent Boys: Homosex, Masculinities, and Britishness in the Brigade of Guards, circa 1900–1960’, Journal of British Studies, 42, 3 (July 2003), 353.
The Gateways club in Chelsea was the most famous such establishment. For the lesbian pub and club scene, see Rebecca Jennings, A Lesbian History of Britain: Love and Sex between Women since 1500 (Oxford: Greenwood, 2007), chap. 8; Rebecca Jennings, Tomboys and Bachelor Girls: A Lesbian History of Post-War Britain 1945–71 (Manchester: Manchester University Press, 2007), chap. 4.
Claud Mullins, Crime and Psychology (London: Methuen, 1943).
This is incorrect. As H. G. Cocks makes clear (Nameless Offences: Homosexual Desire in the 19th Century (London: I. B. Tauris, 2003), pp. 17–18), all types of homosexual act could be and were prosecuted under the existing anti-sodomy laws.
For details of the passage of the Labouchère Amendment, see F. B. Smith, ‘Labouchère’s Amendment to the Criminal Law Amendment Bill’, Historical Studies (Australia), 17, 67 (1976), 165–75; Matt Cook, London and the Culture of Homosexuality, 1885–1914 (Cambridge: Cambridge University Press, 2003), pp. 42–5.
‘Approved schools’ for juvenile delinquents, which superseded industrial schools and reformatories, were created by the Children and Young Persons Act 1933. See Steven Schlossman, ‘Delinquent Children: The Juvenile Reform School’, in Norval Morris and David J. Rothman (eds), The Oxford History of the Prison: The Practice of Punishment in Western Society (Oxford: Oxford University Press, 1995), p. 343.
William Norwood East and William Henry de Bargue Hubert, Report on the Psychological Treatment of Crime (London: HMSO, 1939), which recommended the setting up of a special prison to provide psychological treatment for certain categories of prisoner—and resulted in the opening of HM Prison Grendon in 1962. See also Waters, ‘Havelock Ellis, Sigmund Freud and the State’, pp. 172–3.
For the perceived threat of venereal disease emanating from ‘morally lax’ women during the War, see Sonya O. Rose, Which People’s War? National Identity and Citizenship in Wartime Britain 1939–1945 (Oxford: Oxford University Press, 2003), pp. 80–1.
A reference to a statement by Lord Jowitt in his Maudsley Lecture to the Royal Medico-Psychological Association, 1953, about the period when he became Attorney-General in 1929: ‘A very large percentage of the blackmail cases—nearly 90 per cent. of them—were cases in which the person blackmailed had been guilty of homosexual practices with an adult person’ (Jowitt, ‘The Twenty-Eighth Maudsley Lecture: Medicine and the Law’, Journal of Mental Science, 100, 419 (Apr. 1954), 353). This figure was inaccurate (see n. 8), but in a speech to parliament the following year, Jowitt inflated it even further, suggesting that, ‘at least 95 per cent. of the cases of blackmail which came to my knowledge arose out of homosexuality’ (Hansard’s Parliamentary Debates, Lords, 5th ser., 187 (1954), c. 745).
The memorandum is presumably ‘A Special Problem’, by Letitia Fairfield, the retired chief medical officer of the ATS, but Emma Vickers puts the correct date of this undated study as 1943. See London Metropolitan Archives, PH/GEN/3/19, Papers of Letitia Fairfield, quoted by Vickers, Queen and Country: Same-Sex Desire in the British Armed Forces, 1939–45 (Manchester: Manchester University Press, 2013), pp. 12, 121–4, 130, 140. My thanks to Dr Vickers for clarification on this point.
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Lewis, B. (2016). Law Enforcers. In: Wolfenden’s Witnesses. Genders and Sexualities in History. Palgrave Macmillan, London. https://doi.org/10.1057/9781137321503_2
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