The History of Homosexuality: Post-Legalisation

Homosexuality was decriminalised in England and Wales in July 1967 with the passing of the Sexual Offences Act. At least, that’s the common perception. Actually what this Act did was define an exemption from prosecution for private, consensual sexual contact between two males over the age of 21, excluding army and merchant navy personnel. Anything else covered by the Sexual Offences Act 1956 which criminalised buggery and “gross indecency between men” remained illegal.

Peter Tatchell, writing compellingly about this period, notes that the wording of the laws governing homosexual contact continued to use disparaging language not found anywhere else in the penal code. Homosexuality was an “unnatural offence”, a “gross indecency”, but murder was just murder; rape just rape. In his words, “Homophobia is enshrined in the wording of the law.”

The new law left gay men in something of a legal limbo. For couples who were already established and living together — the “respectable” homosexuals that Wolfenden was concerned with — the new law provided them with immunity from prosecution and the freedom to move the carefully placed props from the spare room in case somebody happened into their house and suspected they might share the same bed. What they couldn’t do, even under the new law, was express themselves affectionately where someone else might see. Couldn’t share a kiss in the garden, hold hands in the street, or even slow-dance in front of an uncurtained window. If they lived in a flat or terrace and the neighbours heard them having sex, that was enough to cross the bounds from legal to illegal. The wording of the law to decriminalise private acts meant that anything that was seen by a third party was de facto public, and therefore still criminal.

This presented a bigger problem for the queer men who weren’t already happily settled down. Flirting with a handsome stranger, giving him your phone number, or arranging to meet elsewhere was against the law. Queer men were caught in an impossible situation where arranging to do something completely legal was itself illegal.

The numbers speak for themselves. In 1954, the year of the Montagu trial and the height of the “pogrom”, there were 890 convictions for gross indecency. 1966, the year before the Act passed, there were 420. In 1971, that number had risen to more than 1200. In 1989, twenty years after the Act, there were over 1500 convictions. The Act hadn’t decriminalised homosexuality, per se, it had decriminalised only a very specific, “respectable” facet of queer life, and in so doing, it made folk devils of queer men who didn’t conform, or who refused to make themselves invisible in order to be allowed to exist.

The 1967 law was acknowledged as deeply flawed by all those who fought for homosexual emancipation at the time. Not only was the age of consent set five years higher than the heterosexual age, the penalty for men over the age of 21, convicted of masturbation or oral sex with someone aged 16-21 was more than doubled, from two to five years’ imprisonment. Group sex was also explicitly prohibited: the law decriminalised sex between two men, no more. (It was even illegal for a couple to make, in private, a sex tape of themselves if somebody else happened to find it.)

As late as the 1980s (fueled partly by AIDS-panic) there were over 20,000 convictions of gay men for buggery, gross indecency, soliciting, and procuring stemming from their involvement in behaviours which, for heterosexuals, were not criminal.

In 1998, seven men were arrested in Bolton, NW England, because they’d had group sex and filmed it. One of the participants was seventeen-and-a-half (then still under the age of consent, which at that time was 18, although the government had promised a vote on the matter and stated there would be no prosecutions brought for “underage” men 16-18 until the matter had been resolved). The police spent upwards of £500,000 pursuing the case, amid a public outcry which I personally remember well. For many people, it was the first time they understood how differently the law applied to homosexual sex, compared to equivalent heterosexual acts.

It simply isn’t … fair. The authorities didn’t prosecute. They persecuted.

John Lyttle, The Independent

The national media was quick to point out that it would not have been a crime if the seventeen year old was having group sex with six older women. Nonetheless, all seven were convicted of gross indecency, and the older six of age of consent offences relating to both having sex with the seventeen year old, and filming it. (Further charges relating to a police claim the video was made for distribution were dropped after it was pointed out that a popular soap opera was playing very audibly in the background.)

Five of the men were given probation and community service orders. The other two received suspended prison sentences and fines. Three of the men were required to sign the Sex Offenders Register relating to acts committed with the underage participant. None received custodial sentences, likely at least in part because of a concerted campaign demanding leniency. Over 400 letters of support were presented to the court, signed by MPs, Bishops, and human rights groups. The men’s local MP branded the prosecution “vicious”. Amnesty International pledged to declare the men prisoners of conscience, should they be jailed.

This conviction only serves to support the interests of bigots in our society and is an attempt to divide gay people from straight people.

— Rosa Kay, Bolton branch secretary, UNISON

In 2000, six of the seven appealed their case to the European Court of Human Rights, which found in their favour and awarded compensation. The age of consent was equalised in the same year, and the Sexual Offences Act 2003 decriminalised group sex among consenting men over the age of 16. The offences of gross indecency and buggery were repealed.

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