Thursday, 9 February 2017

Gay Men and the Law

There is a long history in Britain of criminal legislation affecting men who have sex with men.

Henry VIII of England (c 1530-35) by
Joos van Cleve; The Royal Collection
1533 The first legislation against homosexuality in England was introduced during the reign of King Henry VIII. The Buggery Act defined the offence as “the detestable and abominable Vice ... committed with mankind or beast” and was the first criminalisation of homosexual activities in the UK. It provided for a maximum sentence of death.

Prior to this, same sex sexual behaviour had been dealt with in the ecclesiastical courts as a crime against the Will of God and against Nature. It was considered so appalling that it was only referred to obliquely, usually along the lines of "peccatum illud horribile, inter Christianos non nominandum", or "that horrible crime not to be named among Christians".

The Buggery Act allowed the death penalty, which meant that the property of anyone executed could be confiscated by the Crown.

The first execution for buggery, along with treason, was of Walter Hungerford, 1st Baron Hungerford of Heytesbury in 1540, although it was probably the treason that cost him his life. Nicholas Udall, a cleric, playwright and Headmaster of Eton College, was the first to be charged with violation of the Act alone in 1541, for sexually abusing his pupils. In his case, the sentence was commuted to imprisonment and he was released in less than a year.

The last execution, on 17 November 1835, was of James Pratt and John Smith, two poor, married men caught in the act in a run-down boarding house in Southwark. Their appeals for clemency were rejected and they were hanged together before a crowd that was ‘excessive, but exceedingly decorous’, according to The Times.

1861 The Offences against the Person Act 1861 (under section 61, ‘Unnatural Offences’) dropped the death penalty. However, you still risked penal servitude for between 10 years to life.

1891 The Penal Servitude Act abolished the minimum penalty for sodomy.

Even then, the social consequences could be so appalling that:-
On 21 November 1891, at Newcastle Assizes (now the Crown Court), George Canham (28) and M Baker (31) were convicted of sodomy with each other and both sentenced by a Judge Wills to 10 years penal servitude. Baker committed suicide by taking poison in the police cell passage immediately after being sentenced.

1885 A late night amendment to the Criminal Law Amendment Act 1885 (referred to as the Labouchere Amendment, after Henry Labouchere, the man who put it forward) introduced the offence of "gross indecency", which made any remotely sexual act between men a crime. It ensured prosecutions might succeed where sodomy (in this case, specifically anal sex) could not be proved.

Most famously, it was used against Oscar Wilde, who was sentenced to two years' hard labour in 1895, and Alan Turing, who in 1952 agreed to have oestrogen injections (chemical castration) as an alternative to prison.

Oscar Wilde, one of the English language’s literary giants
Alan Turing, genius, mathematician, code
breaker, father of modern computing.

John Wolfenden, later Baron Wolfenden
1954 saw the first meeting of the Wolfenden Committee, commissioned to look into the laws on homosexual offences and prostitution. John Wolfenden, CBE, the chairman, suggested they spare the blushes of the ladies on the committee by referring to homosexuals as ‘Huntleys’ and prostitutes as ‘Palmers’, after the biscuit manufacturers.

Despite some difficulty, the Wolfenden Committee were able to call three homosexual men to give evidence. What they said about the impact of the law on their lives affected the Committee’s recommendations.

1957 The Wolfenden Report, published on 4th September, recommended that "homosexual behaviour between consenting adults in private should no longer be a criminal offence". It said that, "homosexuality cannot legitimately be regarded as a disease, because in many cases it is the only symptom and is compatible with full mental health in other respects." And, "The law's function 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 life of citizens, or to seek to enforce any particular pattern of behaviour."

It may also have helped that Wolfenden’s son, Jeremy, was homosexual.

1961 The film, Victim, starring Dirk Bogarde as a married, homosexual lawyer, was the first English language film to use the word "homosexual". Even before its release in the US, a news report in The New York Times described it as a political work: "the movie is a dramatized condemnation, based on the Wolfenden Report, of Britain's laws on homosexuality."

Victim became a highly sociologically significant film; many believe it played an influential role in liberalising British attitudes towards homosexuality and made decriminalisation more likely. In retrospect, it is even more remarkable in that several of the actors were either themselves homosexual or closely connected to men who were. Among them were:

  • Dirk Bogarde, who never came out but lived most of his adult life with Anthony Forwood.
  • Alan McNaughton, who was a friend of actor Alec McCowen, who was homosexual.
  • Hilton Edwards, who was partnered to the Irish actor, Micheál Mac Liammóir.
1967 A decade after the publication of the Wolfenden Report, its recommendations were implemented in the Sexual Offences Act 1967. However, it applied only to England and Wales. It is important to note that, to comply with the law, sex had to be between two consenting men aged over 21 and in private. (What constituted ‘private’ was a contentious issue.)

And finally...
2004 The Sexual Offences Act 2003 came into force, removing gay-specific offences and making all sexual offences gender neutral.

This post is based on a set of four posters created on behalf of Merton LGBT+ Forum for a display at Merton Civic Centre and Wimbledon Library during LGBT History Month 2017.

You can download the poster for this topic here:
Feel free to use them, if you wish.


  1. This is absolutely disgraceful. Where's the input of all those academics you have on the Schools-Out Board. Why are you not using LGBTQI+ historians. There's no mention of the Homosexual Law Reform Society or the work of the Albany Trust, Minorities Research Group, Kendrick or Gay Liberation Front or Women's Liberation Front. A huge gap between 1961 and 2004. Who is responsible for driving this agenda - Stuart Milk of the Harvey Milk Foundation?

  2. Explain yourself. Who are you? Your profile is blank.

  3. Hi thanx for the explanation of The Buggery Act, 1533.... I am curious about the cannon law that it succeeded. 1-What was the law called 2-how was it meant to operate 3-how did it actually operate? 4-when did the law lapse from lack of use? and finally 4-it is a law that existed in a political/theological context-what was that context? Did it change over time? I know that the answers are likely to be somewhat dusty, but I like how you have blown the dust off Henry VIII and The Buggery Act so far. Praise to you for that...

    1. I have to confess that this isn't really my area of expertise. I don' normally go that far back. As I understand it, Canon Law was more a set of precedents based on biblical law, and not an actual legislative act. It was applied by ecclesiastical courts, most likely with senior clerics acting as judges. Such courts still exist but these days their remit is much more restricted and involves church law rather than anything now coming under criminal or civil law.