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The Law and Homosexuality

With the election out of the way, Wolfenden ― or rather his famous report ― may get back into the news again. This document, presented to Parliament in September 1957 after more than three years of painstaking work, called forth at that time a mixed public response of support and violent opposition. The government of the time fairly quickly implemented the committee's main recommendations on prostitution (incidentally with a resultant increase in call-girls and a more highly organised poncing system), but did not make any move concerning the law on male homosexuality.

Public opinion was against any change, said Home Secretary R. A. Butler in the Commons debate of November 26th, 1958, as if capitalist politicians are not capable of trying to ignore public opinion when they think it will serve their purposes to do so. It is just conceivable that homosexuality could have become an election issue in 1959 but the greater likelihood is that for one reason or another the majority of the government did not favour change, and so the matter was dropped. However, one effect of Wolfenden since then has been to bring this controversial question more into the forum of public discussion ― press, radio and TV ― which has continued on and off ever since.

In May last year, Lord Arran managed to get a second reading in the Lords for his Bill to make private homosexual acts between consenting male adults no longer a criminal offence. But a similar measure introduced into the Commons a fortnight later by Labour MP Leo Abse was defeated, the opposition to it having been led by that self styled guardian of our moral welfare and champion of intolerance Sir Cyril Osborne, Tory MP for Louth. However, not long before the election, a Bill on the same lines was sponsored by the Tory Humphrey Berkeley and managed to survive a second reading.

It seems in fact that parliamentary opinion is turning in favour of changing a law which has not had the intended effect and has, by the very nature of its provisions, proved just about unworkable. And after all, there is nothing which brings capitalist legality into contempt more than an unworkable law. As the Lord Chancellor, Lord Gardiner, said on the matter:

“As a lawyer, I am prejudiced because I do not like law which cannot be enforced and we cannot ever enforce laws about what people do by consent in private. Those who are caught are the unlucky few.” (Guardian 13.5.65.)

The present set up had its origins in 1885, when during the committee stage of the Criminal Law (Amendment) Bill, The Liberal MP Labouchere moved his notorious clause creating the new offence between males, whether or not adult, consenting or in private, and by a stroke of the Parliamentary pen, made the lot of the male homosexual less tolerable than it had been for many years. Labouchere's clause was passed without debate, and became section 11 of the new Act, providing punishments which were savage even by Capitalism's standards. The maximum penalties still range from a £5 fine for "Bye Law indecencies" to life imprisonment for buggery.

No wonder that furtiveness and secrecy entered the homosexuals life in greater measure ― and there was a still uglier aspect rearing its head. In the storm of controversy that followed the publication of the new regulations, one judge called them "the blackmailer's charter", a name which has stuck and which seems to have been justified by subsequent events. Moreover, the dubious conduct of the police in securing some of their convictions has been a source of fierce contention among lawyers ever since. Only in May last year, Montgomery Hyde was citing recent examples of this in a series of articles in The People.

Not always the same attitude towards homosexuality has prevailed. Aymer Roberts says: "As we turn the pages of history we discern alternately the acceptance and admiration of homosexuality and then later its attempted suppression" (Forbidden Freedom). In feudal Britain, there were times when, along with fornication and adultery, sexual inversion was punishable by the most painful death. Indeed, as late as the seventeenth century, Lord Castlehaven was beheaded for it on Tower Hill. Such was the fear expressed through Christian dogma and supported by the church, of any practice which was thought to be a threat to the marriage institution.

The number of male homosexuals in Britain is not precisely known; estimates have varied between 500,000 and one million. But whatever the number, there is no doubt that for many the strain of trying to live within a set of general social rules ― not just the law ― which aim at their rejection, is very great. As Dr. Eustace Chesser has pointed out:

“The sense of guilt and nervous strain felt by many homosexuals today is due largely to social disapproval . . . Public opinion can be as punitive as the law.” (Live and Let Live.)

So the homosexual, it seems, has a difference which rapidly becomes a social handicap, but he is forced to wage a long and not altogether successful battle for society's acceptance. Hence the mental conflicts, the nervous breakdowns, and sometimes the suicides.

Probably that is why the condition has been thought of as an illness ― two separate states have been confused and placed under one heading, but Wolfenden has rejected such a view, as have many leading medicos. According to Dr. Neustattor for instance, "It is not an illness or a disease . . . but simply a variation." (Albany Trust Winter Talks, 1962-63). So if it can't be called an illness, it is hardly a question of "curing" it neither has punishment stamped it out. Hence the proposal once more to bring English law into line with that of other countries, and as far as adults are concerned anyway, leave them well alone.

Nor should we forget that times have changed considerably since Labouchere's days. It is not without significance that the reformers are anxious to convince people of the usefulness ― potential or otherwise ― of the homosexual to capitalist industry.

“It should not be beyond our capabilities to devise some method of control which will enable each homosexual to lead ... a more useful life, and this in the final analysis must be a benefit to the whole community. (Albany Trust Winter Talks. 1962-63.)”

“A substantial minority of men in every class of society, being made free from fear of the criminal law, would be better able to play a constructive part in the life of the community. (Pamphlet by The Homosexual Law Reform Society.)

And of course, this is one of the salient propaganda features of the movement for reform of the law. The reformers want to fit the homosexual into existing society without additional stigma; they do not aim at a basic change in society itself.

The same criticism can be made of all such movements, wherever they are. In his book 'The Homosexual Revolution', R. E. L. Masters says that the homosexuals in U.S.A. have managed to start official organisations to voice their grievances and demands for law reform, the main associations being Daughters of Bilitas for women, and The Mattachine Society for men. He alleges that the problems of blackmail, police persecution and harassment, etc., are much greater there than in Britain, which may be the reason for the rise of these more vociferous protective clubs. He gives a list of "the movement's" demands, which apart from the fact that some people might think them too sweeping, are all aimed at making the homosexual acceptable as a citizen of capitalist society. The very first of these is a plea that "the homosexual, male or female, should be permitted like any other citizen, to serve his or her country as a member of any branch of its armed forces." (The present U.S. law forbids this.) A doubtful privilege indeed ― losing your life on a battlefield as a result of the very struggles you have waged to make it worth ― living.

When the law is eventually changed, then, a minority will be released from the shadow of vindictive penalties (although only in one provision of Wolfenden is this so; his proposal for the under twenty-ones is that the penalties be retained and in some cases even increased), but this will not be the end of the homosexual's problems. Apart from the backlog of fear, ignorance and prejudice which will impinge on his life still, the legal change will at most be an offer to absorb him, so to speak, more easily into the present set up. Which will mean, if he is a worker (and most homosexuals certainly are), that the grey day-to-day existence and struggles to make a living will still be there.

E.T.C.