Reflections on the criminalisation of sex between men in England and Wales

Abstract

The past 30 years have seen substantial change and improvement in both the law on and the state's treatment of men who have sex with men in England and Wales. Men were still imprisoned for consensual, adult homosexual offences into the 1990s – David Bonney, for example, was incarcerated in a military prison for four months in 1993 for homosexual conduct while serving in the Royal Air Force (RAF).1

Sex between men was first criminalised in England in 1533 (and extended to Wales in 1542):2 The Buggery Act, passed during the reign of Henry VIII, made “the detestable and abominable vice of buggery committed with mankind or beast” a capital offence, and while the meaning of buggery has its own history, in practice it was used to punish anal sex between men. Buggery remained punishable by death until 1861, although the last executions were in 1835.

Even as the threat of execution loomed over queer men for more than 300 years, an even more pernicious law from 1885 affected many more men: the infamous ‘Labouchere amendment’. Added to the Criminal Law Amendment Act 1885, this created the new crime of ‘gross indecency’, criminalising all sexual acts between men short of buggery while leaving the precise definition of this term undefined.

Later legislation began the process of redressing this injustice, with the Protection of Freedoms Act 2012 creating the possibility that men convicted of abolished crimes – primarily consensual buggery and gross indecency – could have them disregarded, effectively erased, by application to the Home Office.

Momentum for further change increased with the 2009 state apology and subsequent royal pardon in 2013 of mathematician and Enigma code breaker Alan Turing.3 Turing had been convicted in 1952 for gross indecency with another man, after which he was subjected to hormone treatments to reduce his libido, and later died in 1954 in what the coroner determined to be a suicide. Why, many asked, should one need to be a war hero or subject of a Hollywood blockbuster to be eligible for a pardon for consenting same-sex acts that were no longer criminal offences? A major petition called on the state to pardon the further 49,000 men convicted under ‘anti-gay’ laws.

The 2017 amendment to the Policing and Crime Act 2009 did finally extend a new statutory pardon to many more men than Turing, but it continued to be overwhelmingly exclusionary, restricted to those who had first received a disregard – itself still a flawed form of restitution due to its limited scope. Indeed, the 2017 pardon has been criticised on several fronts. For the living, it required first securing a disregard, after which a pardon was automatic if also entirely symbolic. For the dead, a pardon was automatic without application. The state simply deemed an unknown number of deceased men who had been found guilty of an unknown number of crimes across the previous five centuries, which would go unresearched and unconfirmed, to be pardoned. For the living, the fact of the pardon first requiring a disregard meant that only a very limited number of crimes were eligible. It still excluded importuning and crimes that took place in a public toilet.

So what are the reasons behind the relatively small number of pardons? First off, while many men may not know that they are eligible or that their crimes can be disregarded, others no doubt wish only to put these episodes beyond them. They may have experienced humiliation and violence at the hands of a homophobic police force and state that criminalised them. Returning to those experiences, even to secure a disregard and pardon, may simply be too painful to contemplate. This could partially explain the low overall number of applications to the scheme. The low applicant rates could also suggest poor communication of the scheme. Indeed, a surprising number of rejected applications are for crimes unrelated to homosexuality such as fraud and theft, suggesting the government's messaging is not fully working.

A separate – and perhaps the most troubling – element of the scheme are the rejected applications from men convicted for consensual homosexual offences with parties of legalage whose convictions for importuning or for activity in a public toilet still remains outside the scope of the scheme. Westminster's disregards and pardons schemes have been so unfair, in fact, that I have heard them cited outside the UK as a cautionary example: a model of what not to do.

These failings seemed finally to have been resolved when it was announced earlier this year that further changes to the disregards and pardons schemes would be achieved through an amendment to the Police, Crime, Sentencing and Courts Act 2022, to add further offences that are no longer crimes to those eligible for disregard. This is a positive development and ensures that a well-intentioned but flawed system to offer some redress to victims of state homophobia can be extended to many more people than previously had access to it. It seems now that men convicted of importuning will finally be eligible to have their crimes disregarded and receive a pardon.