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Section 11 of the Criminal Law Amendment Act 1885, commonly known as the Labouchere Amendment, made "gross indecency" a crime in the United Kingdom. In practice, the law was used broadly to prosecute male homosexuals where actual sodomy (meaning, in this context, anal intercourse) could not be proven. The penalty of life imprisonment for sodomy (until 1861 it had been death) was also so harsh that successful prosecutions were rare. The new law was much more enforceable. Section 11 was repealed and re-enacted by section 13 of the Sexual Offences Act 1956, which in turn was repealed by the Sexual Offences Act 1967, which partially decriminalised male homosexual behaviour.

Most famously, Oscar Wilde was convicted under section 11 and sentenced to two years' hard labour, and Alan Turing was convicted under it and sentenced to oestrogen injections (chemical castration) as an alternative to prison.

Background

The Buggery Act 1533, during the time of Henry VIII, codified sodomy into secular law as "the detestable and abominable vice of buggery".^[1] The Offences against the Person Act 1861 specifically lowered the capital punishment for sodomy to life imprisonment, which continued until 1967. However, fellatio, masturbation, and other acts of non-penetration remained lawful. Private homosexual activity, though stigmatised and demonised, was somewhat safer during this time; the prosecution had to prove penetration had actually occurred.

In April 1870, transvestites Boulton and Park were arrested for wearing drag outside the Strand Theatre. They were charged with conspiracy to commit sodomy with Lord Arthur Pelham-Clinton, who died (probably of suicide) later that year and who was the third son of the Henry Pelham-Clinton, 5th Duke of Newcastle. However, since there was no actual witness of any such act nor evidence of semen on their posterior regions, the charges were dropped.

Henry Labouchere, Liberal MP for Northampton, had been a diplomat; he now was the founding editor of Truth magazine, which had its selling point in exposing corruption and degeneration. In 1882, Labouchere met Wilde in America; Wilde praised him as the "best writer in Europe",^[2] though Labouchere criticised Wilde as an "effeminate phrase maker". Sir Howard Vincent, director of criminal investigations at Scotland Yard from 1878 to 1884, called homosexual acts a modern "scourge". The Yokel's Preceptor, a contemporary magazine, said this:

The increase of these monsters in the shape of men, commonly designated margeries, poofs etc., of late years, in the great Metropolis, renders it necessary for the safety of the public that they should be made known… Will the reader credit it, but such is nevertheless the fact, that these monsters actually walk the street the same as the whores, looking out for a chance? Yes, the Quadrant, Fleet Street, Holborn, the Strand etc., are actually thronged with them! Nay, it is not long since, in the neighborhood of Charing Cross, they posted bills in the windows of several public houses, cautioning the public to "Beware of Sods!"^[3]

Hysteria over homosexuals was at a peak during the time, though the contemporary morality was already beginning to question the ethics of homosexual activity. Karl Heinrich Ulrichs, a German lawyer, in the 1860s produced literature in favour of love between men. Calling it Uranian love, he even considered it to be a higher form of love than common heterosexual love. Similarly, John Addington Symonds, an English poet, published A problem in Greek Ethics in 1883. It was subtitled "An Inquiry into the Phenomenon of Sexual Inversion addressed especially to medical psychologists and jurists". He argued for the Grecian pederasty, and said that the modern era could rethink its values.

Criminal Law Amendment Bill

In 1881, 1884, and 1885, John Ramsay, 13th Earl of Dalhousie introduced criminal law amendment bills "for the Protection of Women and Girls [and] suppression of brothels" (as their long title stated). The bills passed in the House of Lords but the first two were rejected in the House of Commons by the Gladstone ministry. It was held that the proposed increase in the age of consent would leave men open to blackmail. The 1885 bill passed the Lords on 1 May 1885,^[4] and its future progress was uncertain. In July, Pall Mall Gazette editor W. T. Stead was imprisoned for writing and publishing The Maiden Tribute of Modern Babylon, a series of articles which caused a moral panic by showing the ease with which young girls could be "bought" on the street. The caretaker Salisbury ministry accepted Dalhousie's bill, which completed its second reading in the Commons on 9 July 1885.^[5] The government made amendments to the bill at committee stage. Stead wrote to Labouchere, telling of the rise in homosexuality in London and other large cities.

Labouchere proposed his amendment at the last minute, on report stage ("consideration"). Frank Harris, a contemporary, wrote that Labouchere proposed it as a wrecking amendment to make the law seem "ridiculous" and thus discredit it in its entirety; some historians agree,^[which?] citing Labouchere's habitual obstructionism and other attempts to sink this bill by the same means, while others write that his role in calling for more investigation into the Cleveland Street [male brothel] scandal places into context a sincere attempt to change the law permanently, stipulating more robust controls against male homosexuality.^[6]^[7]^[8] The amendment was rushed through and passed in the early hours of 7 August 1885,^[9] becoming section 11 of the act. When Charles Warton questioned whether Labouchere's amendment had anything to do with the original intent of the bill (as expressed in its long title), the speaker, Arthur Peel, responded that under procedural rules any amendment was permitted by leave of the House.^[9] (In 1888 standing orders were changed to restrict the type of amendment which could be made at a bill's report stage.^[10])

Labouchere, inspired to action by the modern question over sexual norms, pushed in the four-minute debate for strong action against "deviants".^[9] He originally wanted a seven-year minimum sentence of hard labour, but the home secretary and attorney general persuaded him to a reduction of the sentence to any term not exceeding one year with or without hard labour.^[9] The former attorney general, Sir Henry James, while supporting the amendment, objected to the leniency of the sentence, and wanted to increase the sentence to any term not exceeding two years with or without hard labour.^[9] Labouchere agreed, and the amendment was passed.^[9]

Law

Any male person who, in public or private, commits, or is a party to the commission of, or procures, or attempts to procure the commission by any male person of, any act of gross indecency with an other male person, shall be guilty of a misdemeanour, and being convicted thereof, shall be liable at the discretion of the Court to be imprisoned for any term not exceeding two years, with or without hard labour.

No definition of "gross indecency" was provided. John Addington Symonds was disgusted by section 11, arguing, amongst other things, that it would only facilitate blackmail against homosexuals. He noted that reference to being "party to the commission of" gross indecency served essentially as a conspiracy charge, allowing for a broader pool of convictions. This amendment ignored lesbian activity.

Prominent prosecutions

As a result of the vagueness of the term "gross indecency", this law allowed juries, judges, and lawyers to prosecute virtually any male homosexual behaviour where it could not be proven that the defendant had specifically engaged in homosexual anal intercourse, also known as sodomy or "buggery". The sentence was relatively light compared to the penalty for that act, which remained a separate crime. Lawyers dubbed section 11 the "blackmailer's charter".^[11]

The law led to many convictions against male homosexuals and alleged homosexuals. A number committed suicide.

Oscar Wilde

Wilde had (against the advice of friends like Frank Harris and George Bernard Shaw) unsuccessfully privately prosecuted in libel the Marquess of Queensberry for writing on a calling card left at Wilde's club that he, Wilde, was "posing as a somdomite" (sodomite). The action was urged by Queensberry's son Lord Alfred Douglas, who reluctantly fled to France at the time to avoid possible arrest. Section 11 was quickly invoked to prosecute and convict Oscar Wilde in 1895. He was given the most severe sentence possible under the Act, which the judge described as "totally inadequate for a case such as this".^[12] Wilde was found guilty of gross indecency with "at least" 12 young men between 1892 and 1894 and he was sentenced to two years' hard labour.^[13] After prison, Wilde would condemn the Criminal Law Amendment Act, predicting that the battle against it would be a "road… long and red with monstrous martyrdoms." He asserted that so-called "Uranian" love was "noble—more noble than other forms".^[14]

Alan Turing

Mathematician, logician, cryptanalyst and an early computer scientist, Alan Turing was investigated for alleged violations of the provision when the police discovered a male lover at his house after Turing reported a petty theft. Instead of prison, he opted for oestrogen injection hormone "therapy" for a year, slightly feminising the body and losing sexual urges. Psychologists attribute this as a cause of his suicide. He was pardoned posthumously by Queen Elizabeth II in 2013 at the request of justice minister Chris Grayling, following a petition campaign.^[15]

Repeal

In England and Wales, the section was repealed and re-enacted as section 13 of the Sexual Offences Act 1956. It was later amended by the Sexual Offences Act 1967, which decriminalised consensual homosexual acts in private by men over 21. After other amendments, the section was repealed by the Sexual Offences Act 2003.

In Scottish law, the section was repealed and re-enacted as section 7 of the Sexual Offences (Scotland) Act 1976. It was later amended by section 80 of the Criminal Justice (Scotland) Act 1980, which decriminalised consensual homosexual acts in private by men over 21. After other amendments, the section was repealed by the Crime and Punishment (Scotland) Act 1997.

In Northern Ireland law, the section was amended by The Homosexual Offences (Northern Ireland) Order 1982, which decriminalised consensual homosexual acts in private by men over 21. After other amendments, it was repealed by the Sexual Offences Act 2003.

In Republic of Ireland law, the section was repealed by the Criminal Law (Sexual Offences) Act 1993, which decriminalised consensual homosexual acts by males over 17 and as to those younger replaced by section 4 of the new Act.^[16] Section 4 was repealed by the Criminal Law (Sexual Offences) Act 2006.^[17] In 2019, the Supreme Court of Ireland determined that prosecutions under the 1885 Act could proceed where an incident occurred before the 1993 Act came into force.^[18]

References

^ "The Law in England, 1290–1885". Internet History Sourcebooks Project. Retrieved 19 September 2013.
^ "Speranza's Gifted Son". St. Louis Globe Democrat. 26 February 1882. p. 3. Retrieved 31 December 2019.
^ McKenna, Neil (2006). The Secret Life of Oscar Wilde. Random House. p. 107. ISBN 9781446456828.
^ "Criminal Law Amendment Bill (No. 92.) Third Reading". Parliamentary Debates (Hansard). 1 May 1885. HL Deb vol 297 cc1284-5. Retrieved 31 July 2019.
^ "Criminal Law Amendment Bill. [Bill 159.] Second Reading. [Adjourned Debate.]". Parliamentary Debates (Hansard). 9 July 1885. HC Deb vol 299 cc197-211. Retrieved 31 July 2019.
^ Kaplan, Morris B. (2005). Sodom on the Thames: sex, love, and scandal in Wilde times. Cornell University Press. p. 175. ISBN 9780801436789.
^ Aldrich, Robert; Wotherspoon, Garry, eds. (2003). Who's who in gay and lesbian history: from antiquity to World War II. Psychology Press. p. 298. ISBN 9780415159838.
^ Cohen, Ed (1993). Talk on the Wilde side: toward a genealogy of a discourse on male sexualities. Psychology Press. p. 92. ISBN 9780415902304.
^ ^a ^b ^c ^d ^e ^f "Criminal Law Amendment Bill [Lords].— [Bill 257.] Consideration". Parliamentary Debates (Hansard). 6 August 1885. HC Deb vol 300 cc1386–1428. Retrieved 31 July 2019.
^ Jennings, William Ivor (1969) [1957]. Parliament (2nd ed.). CUP Archive. p. 280 fn.3. Retrieved 31 July 2019.; May, Thomas Erskine; Webster, Thomas Lonsdale (1917). A treatise on the law, privileges, proceedings and usage of Parliament (12th ed.). London: Butterworth. Retrieved 31 July 2019. When the bill, as amended by the committee, is considered, the entire bill is open to consideration, and new clauses may be added, and amendments made. According to former usage, the amendments might be wholly irrelevant to the subject-matter of the bill. This vicious practice was, in 1888, rendered impossible by standing order No. 41, which prescribes that no amendment may be proposed to a bill on consideration, which could not have been proposed in committee without an instruction from the house.
^ David, Hugh (1997). On Queer Street: a social history of British homosexuality, 1895–1995. London: HarperCollins. p. 17. ISBN 0-00-638451-X.
^ Lex Scripta: Oscar Wilde
^ Ellmann, Richard. (1988). Oscar Wilde. First Vintage Books Edition p. 443-444.
^ Holland, Merlin. (2004). The Real Trial of Oscar Wilde. Harper Collins Publishers Inc. p. xxxvi.
^ "Royal pardon for codebreaker Alan Turing". BBC News. 24 December 2013.
^ "Criminal Law (Sexual Offences) Act, 1993". electronic Irish Statute Book (eISB). ss. 1(2), 3, 4, Schedule par.13. Retrieved 31 July 2019.
^ "Criminal Law (Sexual Offences) Act 2006". electronic Irish Statute Book (eISB). s.8 and Schedule. Retrieved 31 July 2019.
^ Carolan, Mary (30 April 2019). "Supreme court clears way for prosecution of ex-teacher for alleged 'gross indecency'". Irish Times. Retrieved 18 September 2019.

History of English criminal law
Part of the common law series
Classes of crimes	Felony Misdemeanour Arrestable offence Contempt of sovereign or statute (breach of any statutory wording as a crime)
Inchoate offences	Incitement
Defences	Marital coercion Provocation
Offences against the person or state	Petty treason Capital murder Mayhem (crime) Treachery
Sexual offences	Buggery Gross indecency between men Indecent assault
Criminal libel and kindred offences	Seditious libel Sedition Blasphemous libel Blasphemy Obscene libel Defamatory libel
Offences against property	Larceny Embezzlement Fraudulent conversion
Forgery, personation and cheating	Cheating
Offences against justice	Misprision of felony Compounding a felony Champerty and maintenance Embracery
Death against family honour	Felo de se
Criminal behaviour	Common scold Loitering Quasi-crimes: Until-dawn detention for being a stranger passing a night-watchman; informal use of stocks and similar punishments
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