United Kingdom Criminalizes "Gross Indecency"

In 1885, the British parliament passed the Criminal Law Amendment Act, which legally classified and normalized acceptable and unacceptable forms of human sexuality in the nation’s criminal code. By shifting legal emphasis and scrutiny from the criminality of an act (such as sodomy) to the criminalization of the actor as “gross indecency,” the act broadened the net that law enforcement authorities and the courts could cast to arrest, prosecute, and imprison homosexuals.

Date 1885

Locale: London, England

Key Figures

• Henry Du Pré Labouchere (1831-1912), journalist, editor, and liberal member of the House of Commons, 1880-1906
• William Ewart Gladstone (1809-1898), Tory member of Parliament who helped establish the Liberal Party in 1859, and British prime minister, 1868-1874, 1880-1885, 1886, and 1892-1894
• Lord Granville (Granville George Leveson-Gower; 1815-1891), Whig member of the House of Lords
• Ernest Boulton (Lady Stella Clinton; Stella; Star of the Strand; b. c. 1848), actor, courtesan, and cross-dresser
• Frederick Park (Miss Fanny Winifred Park; b. 1847/1848), actor, law student, and cross-dresser
• William Thomas Stead (1849-1912), journalist, author, and editor
• Oscar Wilde (1854-1900), author, critic, playwright, and poet

Summary of Event

Attempts to regulate human sexuality date back to the biblical story of Sodom and Gomorrah mentioned in the Book of Genesis. The definition of “sodomy” illustrates the nuanced meaning of words and the difficulty of precise legal definition. It has been defined as any of various acts of copulation; however, it is more often specifically defined as anal or oral sex and carries with it the stigma of being unnatural. In other instances it includes acts of autoeroticism and bestiality. In Western civilization, sodomy laws have been used by governments and by religion to normalize heterosexual relations and to promote the institution of heterosexual marriage especially for, but not limited to, the purpose of procreation.

In 1533, when King Henry VIII separated the Church of England from the Roman Catholic Church in Rome so that he could divorce Catherine of Aragon, he converted Catholic doctrine into a legal code that recognized sodomy both as a crime and a sin. The laws of England codified the crime of sodomy, carrying with it the penalty of death until 1861, spreading the proscription worldwide through the common law’s extension under the British colonial system. This included the original thirteen British colonies in North America.

Throughout history, punishment for sodomy has been brutal, harsh, and unforgiving. Punishment for sodomy, especially for “homosexual” sodomy, has varied from burning at the stake or burying alive during the Middle Ages to hanging under the British Buggery Act of 1533. Sodomy was removed from the list of English capital offenses in 1861, yet punishment remained severe: usually up to two years’ hard labor in prison. In the United States, state sodomy statutes were upheld as constitutional as late as 1986 in the U.S. Supreme Court ruling in Bowers v. Hardwick (1986). Sodomy finally was abolished as a punishable crime in all U.S. states, territories, and jurisdictions in 2003 by order of the Supreme Court in the case of Lawrence v. Texas (2003).

In June of 1885 the ruling Liberal Party of British prime minister William Ewart Gladstone had faced a vote of no confidence in Parliament that forced the prime minister to dissolve the government. By the end of June, a new coalition led by Lord Salisbury had formed, and the Parliament, as usual, recessed for its summer holiday. On July 6, the editor of the Pall Mall Gazette, William Thomas Stead, had published the first in a series of articles collectively titled “The Maiden Tribute of Modern Babylon.” This exposé purported to uncover an allegedly widespread child prostitution network and Caucasian slavery ring operating in London.

The sensationalism provoked by Stead’s report sent members of Parliament scurrying back to London from their summer vacations to debate and pass reform bills aimed at remedying the reputed abuses. Among the proposed laws was the Criminal Law Amendment Act of 1885 (CLAA), formally titled “An Act to Make Further Provision for the Protection of Women and Girls, the Suppression of Brothels, and Other Purposes”—otherwise known as the Labouchere amendment—after liberal member of Parliament Henry Du Pré Labouchere—or the Blackmailer’s Charter.

The CLAA was first introduced in Parliament by Lord Granville in 1881. At his request, the House of Lords created a select committee to investigate the matter. The final report of the committee recommended a slew of reforms that included raising the age of consent and levying stiffer penalties for criminal assault, for promoting overseas prostitution, and for admission of a minor into any premises for reason of sexual intercourse. The committee’s endorsements became the basis of the Criminal Law Amendment legislation. The part of the CLAA that dealt with sodomy was another amendment tacked onto the final bill by Labouchere as Section II.

Significance

The Labouchere amendment defined “gross indecency” as a misdemeanor between two men punishable by a maximum of two years’ hard labor. The cumulative effect of the amendment was to make illegal all male homosexual acts and all homosexual “procuring.” The overall effect was cultural, legal, political, and social. Moral reformers, like Stead, sought to marry the state’s police powers to constricting codes of acceptable conduct.

The United Kingdom, in the aftermath of a series of sex scandals beginning with the 1870 arrest and trial of Ernest Boulton and Frederick Park for conspiracy to commit sodomite acts, and out of possible public concern over the removal of sodomy from the list of English capital offenses in 1861, sought to codify homosexuality as criminal behavior. The CLAA was enacted by Parliament to legally classify and normalize acceptable and unacceptable forms of human sexuality. This legal and linguistic turn from criminalizing an act (sodomy) to the criminalization of the actor (gross indecency) broadened the law enforcement net.

The turn represented a dangerous slide from criminalizing particular acts to criminalizing sexual identity. Gross indecency was sufficiently broad, and vague, to enable prosecutors to try and convict any homosexual for almost any reason. The Labouchere amendment was most famously used to prosecute Irish author, critic, dramatist, playwright, poet, and wit Oscar Wilde. Wilde was prosecuted in the spring of 1895 on charges of sodomy and gross indecency at the Central Criminal Court, Oxford, by Edward Carson, lead counsel for John Sholto Douglas, marquis of Queensberry, against whom Wilde had brought charges of libel. Queensberry was the father of Wilde’s lover, Lord Alfred “Bosie” Douglas (1870-1945), who seemed to have urged Wilde to level the charges against the elder Douglas. However, during the course of Wilde’s trials at the Old Bailey, it became increasingly evident that gross indecency extended to everything from sodomy to literature itself. Wilde would be convicted and sentenced to two years’ hard labor as retribution to the state.

In 1938 there were nearly 150 prosecutions for sodomy in England. In 1952 there were almost seven hundred. On August 24, 1957, nearly seventy-five years to the day that the CLAA was enacted, the British parliament appointed a commission of fifteen individuals to study homosexual offenses and the penalties exacted by those found guilty of committing such crimes. Not surprisingly, the commission was also charged with studying offenses related to prostitution. On September 4, 1957, the Wolfenden Committee issued its report of the Departmental Committee on Homosexual Offences and Prostitution, simply, if erroneously, labeled by the press as the “Vice Report.” It suggested, among other things, decriminalizing homosexuality and declassifying homosexuality as a disease.

Bibliography

Cohen, Edward. “Legislating the Norm: From Sodomy to Gross Indecency.” In Displacing Homophobia: Gay Male Perspectives in Literature and Culture, edited by Ronald Butters, John M. Clum, and Michael Moon. Durham, N.C.: Duke University Press, 1989.

Committee on Homosexual Offences and Prostitution. The Wolfenden Report. Authorized American ed. Introduction by Karl Menninger. New York: Stein and Day, 1963.

Holland, Merlin, ed. The Real Trial of Oscar Wilde: The First Uncensored Transcript of the Trial of Oscar Wilde v. John Douglas (Marquess of Queensberry), 1895. New York: HarperCollins, 2003.

Payne, Jennifer. “The Criminal Law Amendment Act of 1885 and Sexual Assault on Minors.” http://www.geocities.com/Athens/Aegean/7023/Consent.html#N‗1‗. August 24, 1998.

Summersgill, Bob, ed. “Sodomy Laws Around the World.” http://www.sodomylaws.org.

Weeks, Jeffrey. “Inverts, Perverts, and May-Annes: Male Prostitution and the Regulation of Homosexuality in England in the Nineteenth and Early Twentieth Centuries.” In Hidden from History: Reclaiming the Gay and Lesbian Past, edited by George Chauncey, Jr., Martin Duberman, and Martha Vicinus. New York: Meridian, 1990.