Law and homosexuality: lessons from British history Dr. Paul Johnson University of Surrey March 2011

We live in interesting times… In many states around the world laws criminalizing (male) homosexual sex have been repealed and, in addition to ‘sex rights’, non-heterosexuals have successfully gained legal access to a range of ‘citizenship rights’ (such as employment, partnership, and family rights). However, in many other states such citizenship rights remain limited or unavailable to non- heterosexuals and, in some cases, homosexual sex remain criminalized.

How can history help us understand the world today? A knowledge of the historical relationship between law and homosexuality enables: A better understanding of the present A foundation for making a better future This is because contemporary developments in law are the result of a much longer history of legal change.

So to think about how history can help us understand the present, let’s go back to… England 1956

1956 brought a new legal framework for the criminalization of ‘Unnatural Acts’ in England The Sexual Offences Act 1956 criminalized: Buggery (anal sex) ‘It is felony for a person to commit buggery with another person or an animal’ and Gross indecency (any other sexual activity between men) ‘It is an offence for a man to commit an act of gross indecency with another man, whether in public or private, or to be a party to the commission by a man of an act of gross indecency with another man, or to procure the commission by a man of an act of gross indecency with another man’.

The 1956 Act was nothing new… …and continued a long tradition of criminalizing particular sexual acts: For example: ‘Buggery’ was first criminalized by statutory law in 1533, in ‘An acte for the punysshement of the vice of Buggerie’, and made punishable by death (this remained unchanged until the 1861 Offences Against the Person Act which reduced the maximum penalty to between 10 years and life imprisonment). ‘Gross Indecency’ was first criminalized by the Criminal Law Amendment Act 1885

But one year after the Sexual Offences Act 1956, something quite amazing happened in… 1957

This man, Sir John Wolfenden, and his report, came along…

The ‘Wolfenden’ Report… …was produced by a committee that had been appointed by the UK government on 24th August 1954 to consider: ‘the law and practice relating to homosexual offences and the treatment of persons convicted of such offences by the courts’. The Committee comprised 15 people, among them: a judge, a magistrate, a ‘marquess’, a vicar, two M.P.s and a doctor.

The Wolfenden Committee had adopted a particular approach to considering homosexuality… ‘We have […] worked with our own formulation of the function of the criminal law […] In this field, its function, as we see it, is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others’. ‘It is not, in our view, the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary to carry out the purposes we have outlined’.

The Wolfenden Committee relied implicitly on J. S The Wolfenden Committee relied implicitly on J.S. Mill’s ‘Harm Principle’ in their approach Mill had argued, in On Liberty (1859): ‘The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection […] The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others’.

Applying the principle that law must address ‘harm’ the Wolfenden Committee concluded… ‘We are in complete agreement’ with ‘the great majority’ of law that criminalizes behaviour between male persons where one person needs protection ‘by reason of their youth or some mental defect’. and they went on to argue that… ‘We should not wish to see any major change in relation’ to laws that ‘preserve public order and decency’ and, as a consequence, ‘when homosexual behaviour between males takes place in public it should continue to be dealt with by the criminal law’.

However, applying the same ‘harm principle’, the Committee went on to conclude… With regard to ‘homosexual acts committed between adults in private […] we have reached the conclusion that legislation which covers [this] goes beyond the proper sphere of the law’s concern’. ‘We do not think that it is proper for the law to concern itself with what a man does in private unless it can be shown to be so contrary to the public good’. ‘There must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business’.

The Committee knew that people would object to their conclusions! People say homosexuality is ‘unnatural, sinful or disgusting’ but ‘moral conviction or instinctive feeling, however strong, is not a valid basis for over- riding the individual’s privacy and for bringing within the ambit of the criminal law private sexual behaviour of this kind’ People say male homosexuality ‘has a damaging effect on family life’ but ‘we have had no reasons shown to us which would lead us to believe that homosexual behaviour between males inflicts any greater damage on family life than adultery, fornication or lesbian behaviour’.

These arguments caused outrage! Patrick Devlin, a senior judge, argued that laws criminalizing male homosexual behaviours in private should be retained because… ‘Society is entitled by means of its laws to protect itself from dangers […] Societies disintegrate from within [and] when no common morality is observed history shows that the loosening of moral bonds is often the first stage of disintegration. Society is justified in taking the same steps to preserve its moral code as it does to preserve its government and other essential institutions. The suppression of vice is […] the law’s business’. - The Enforcement of Morals (1965)

But the Wolfenden Committee did not agree… ‘We accordingly recommend that homosexual behaviour between consenting adults in private should no longer be a criminal offence’.

That recommendation had a dramatic (but rather slow) effect on UK law 10 years after the ‘Wolfenden Report‘was published, the UK parliament introduced legislation that partially decriminalized male ‘homosexual acts’ in England and Wales. And it was partial decriminalization…

The Sexual Offences Act 1967 decriminalized ‘homosexual acts’ (buggery and gross indecency) only if… They involved no more than two men Both men were over 21 years of age The acts were conducted in private (and privacy was very narrowly defined)

And this partial decriminalizaton was itself granted in a rather begrudging way ‘I ask one thing and I ask it earnestly. I ask those who have, as it were, been in bondage and for whom the prison doors are now open to show their thanks by comporting themselves quietly and with dignity. This is no occasion for jubilation; certainly not for celebration. Homosexuals must continue to remember that while there may be nothing bad in being a homosexual, there is certainly nothing good’. - Lord Arran, House of Lords (1967)

And if you didn’t live in England and Wales, you had to wait longer for this partial decriminalization… 1980 in Scotland 1982 in Northern Ireland (as a result of judgment by the European Court of Human Rights in Dudgeon v The United Kingdom, 1981) 1983 in Guernsey 1990 in Jersey 1992 in Isle of Mann

The unequal ‘age of consent’ was maintained until 2000 in England & Wales The age at which men could consent to sexual acts with other men was lowered from 21 to 18 years of age by the Criminal Justice and Public Order Act 1994 And from 18 to 16 by the Sexual Offences (Amendment) Act 2000

And ‘homosexual acts’ were not fully decriminalized in the UK until… The Sexual Offences Act 2003 removed ‘buggery’ and ‘gross indecency’ from UK law

Even when decriminalizing ‘homosexual acts’ in 2003, the Government retained provisions that criminalize homosexual acts in public Section 71 of the Sexual Offences Act 2003 criminalizes ‘sexual activity in a public lavatory’ It was included in the Act to deal with, as one Peer put it, the ‘offensive public nuisance of homosexuals’ It carries a prison term of 6 months And it has been exclusively used by the police in respect of male homosexual sex in public lavatories

So the issues explored in 1957 by the Wolfenden Committee are still being ‘worked out’ today And the questions they considered are the same questions being asked in most nation states today in respect of the role and scope of law in regulating homosexuality: Do ‘homosexual behaviours’ cause harm to individuals and/or society? To what extent should ‘homosexual acts’ be criminalized in ‘private’ and in ‘public’? And what role should social morality play in limiting an individual’s sexual freedoms and rights?

I think we can still learn a lot from the ’Wolfenden Report’ 54 years after it was published Three examples of how it can help us respond to legal issues in the world today… The criminalization of male homosexual sex The censorship of speech about homosexuality The exclusion of same-sex couples from civil marriage

1. The criminalization of male homosexual sex Sex between men in ‘private’ remains criminalized in… Afghanistan – Algeria – Angola - Antigua and Barbuda – Bangladesh – Barbados – Belize – Bhutan – Botswana – Brunei – Burma – Burundi – Cameroon – Comoros - Cook Islands – Djibouti – Dominica – Egypt – Eritrea – Ethiopia – Gambia – Ghana – Grenada – Guinea – Guyana – Iran – Jamaica – Kenya – Kiribati – Kuwait – Lebanon – Lesotho – Liberia – Libya – Malawi – Malaysia – Maldives – Mauritania - Mauritius – Morocco – Mozambique – Namibia – Nauru – Nigeria – Oman – Pakistan – Palau - Palestinian Territories - Papua New Guinea – Qatar - Saint Kitts and Nevis - Saint Lucia - Saint Vincent and the Grenadines - Samoa - Sao Tome and Principe - Saudi Arabia – Senegal – Seychelles - Sierra Leone – Singapore - Solomon Islands – Somalia - Sri Lanka – Sudan – Swaziland – Syria – Tanzania – Togo – Tonga - Trinidad and Tobago – Tunisia - Turkish Republic Northern Cyprus – Turkmenistan – Tuvalu – Uganda - United Arab Emirates – Uzbekistan – Yemen – Zambia - Zimbabwe

And criminalization is not in decline UGANDA A Bill for an Act Entitled The Anti Homosexuality Act, 2009 The offence of homosexuality (1) A person commits the offence of homosexuality if- (a) he penetrates the anus or mouth of another person of the same sex with his penis or any other sexual contraption; (b) he or she uses any object or sexual contraption to penetrate or stimulate sexual organ of a person of the same sex; (e) he or she touches another person with the intention of committing the act of homosexuality. (2) A person who commits an offence under this section shall be liable on conviction to imprisonment for life. Repeat offenders will be liable for sentence of death

Why increase the criminalization of male homosexual sex in private? In Uganda it has been argued: Gay men molest and sodomize children/young boys The ‘Gay movement’ is an ‘evil institution’ that wishes to ‘defeat marriage’ and replace it with a ‘culture of promiscuity’ Gay men ‘destroy families’ As a result, it is argued, ‘private immorality’ is the law’s business.

What would Wolfenden say...? ‘There remains one […] argument which we believe to be decisive, namely, the importance which society and the law ought to give to individual freedom of choice and action in matters of private [sexual] morality’. ‘…to emphasise the personal and private nature of moral […] conduct is to emphasise the personal and private responsibility of the individual for his own actions, and that is a responsibility which a mature agent can properly be expected to carry for himself without the threat of punishment from the law’.

2. The censorship of speech about homosexuality In the UK, there is a history of using the law to prohibit the discussion of homosexuality on the basis that it ‘damages’ children and family life. The most famous example is Section 28 of the Local Government Act 1988 that prohibited the ‘promotion’ of homosexuality as a ‘pretended family relationship’.

Section 28 censored depictions of homosexual family life

When section 28 was repealed in 2000, the Government retained much of its spirit in new legislation… Learning and Skills Act 2000 (1A) The Secretary of State must issue guidance designed to secure that when sex education is given to registered pupils at maintained schools— (a) they learn the nature of marriage and its importance for family life and the bringing up of children, and (b) they are protected from teaching and materials which are inappropriate having regard to the age and the religious and cultural background of the pupils concerned.

And new laws keep coming… e.g. LITHUANIA: Law on the protection of minors against detrimental effect of public information, 2009 Article 4. Public Information That Causes Detrimental Effect to the Development of Minors 1. Public information that causes detrimental effect on mental health, physical, intellectual or moral development of minors, shall be deemed to be the information: 14) that agitate for homosexual, bisexual and polygamous relations

What would Wolfenden say…? ‘Homosexuality […] is a state or condition, and as such does not, and cannot, come within the purview of the criminal law’.

3. The exclusion of same-sex couples from civil marriage Currently, only 13 states allow same-sex marriage: Argentina Belgium Canada Iceland India (not illegal, but no special provision) Mexico (in Mexico City only) Netherlands Norway Portugal South Africa Spain United States of America (state level only and not recognized in federal law) Sweden

And law is resistant to change… The European Court of Human Rights recently refused to acknowledge that same-sex couples have a right to marry under the European Convention on Human Rights: ‘…the Court observes that marriage has deep- rooted social and cultural connotations [and] that it must not rush to substitute its own judgment in place of that’. - Schalk and Kopf v Austria (2010)

What would Wolfenden say…? ‘We recognize that a proposal to change a law which has operated for many years so as to make legally permissible acts which were formally unlawful, is open to criticisms [but we] do not think that consideration of this question should be unduly influenced by a regard to the present law, much of which derives from traditions whose origins are obscure’.

So, in conclusion… …whilst there is a lot of the ‘Wolfenden Report’ that we might want to be critical about – for example, its insistence that ‘homosexual acts’ be kept ‘in private’ – it provides a foundation from which to consider contemporary legal issues and developments. It offers a framework through which to think critically about the relationship between sex, sexual orientation, culture and social morality, and how these things determine the legal rights that we do and don’t have in the world today.