Section 11 of the Criminal Law Amendment Act 1885, commonly known as the Labouchere Amendment, made gross indecency a crime in the United Kingdom. The Act contained no definition of "gross indecency", as Victorian morality demurred from precise descriptions of activity held to be immoral. 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. It was also meant to raise the age of consent for heterosexual intercourse. It was repealed by the Sexual Offences Act 1967, which partially decriminalized homosexual behaviour.
The Offences against the Person Act 1861 specifically lowered the capital punishment for sodomy to life imprisonment which maintained until 1885. However, fellatio, masturbation, as well as other acts of non-penetration remained lawful. Private homosexual activity, though stigmatized 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 committed suicide later that year, third son of the Duke of Newcastle-under-Lyme. However, since there was no actual witness of any such act nor evidence of semen on their posterior regions the charges were dropped.
In the summer of 1885, Pall Mall Gazette editor W. T. Stead published an article denouncing the ease with which young girls could be “bought” on the street. “The Maiden Tribute of Modern Babylon” articles Stead produced elicited a storm of moral criticism from the public. Lord Salisbury’s government introduced the Criminal Law Amendment bill to protect women from brothels and prostitution, raising the age of consent for women from 13 to 16 thus to outlaw sex between men and what are ever since accepted as underage girls. Stead, who had purchased a girl to support his argument, was charged with abduction and indecent assault, convicted and sentenced to three months imprisonment.
Tabling of Amendment to Bill
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 moral degeneration. In 1882, Labouchere met Wilde in America; Wilde praised him as the “best writer in Europe”, though Labouchere criticized Wilde as an “effeminate phrasemaker”. Stead the convicted editor, had written to Labouchere from jail, telling of the rise in male prostitution in London and other large cities. Concerned, Labouchere presented his amendment towards the end of the Criminal Law Amendment Bill as it passed from bill to law. This amendment outlawed male homosexual activity, while ignoring lesbian activity.
Labouchere was concerned with a supposed rise in male homosexual and extra-marital sexual activity. Sir Howard Vincent, 1878-1884’s Director of Criminal Investigations at Scotland Yard, had 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!”.
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 pedirestia, and claimed the modern era could rethink its values. Symonds was disgusted by Section 11, arguing, amongst other things, that it would only facilitate blackmail against homosexuals.
Henry Labouchere proposed his amendment at the last minute. Frank Harris, a contemporary, wrote that Labouchere proposed the 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 scandal involving one of the Queen's younger sons places into context a sincere attempt to change the law permanently, stipulating more robust controls against male homosexuality. The amendment was rushed through and passed in the early hours of August 7, 1885, becoming section 11 of the Act. One member, Mr Charles Warton, questioned whether Labouchere's amendment had anything to do with the original intent of the bill: the prohibition of sexual assault against young women, and prostitution. Speaker Arthur Peel responded that under procedural rules any amendment was permitted as long as Parliament permitted it.
Labouchere, inspired to action by the modern question over sexual norms, pushed in the four minute debate for strong action against 'deviants'. He originally wanted a 7-year minimum sentence of hard labour for, 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. 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. Labouchere agreed, and the amendment was passed.
"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.
Furthermore, the section included a vague clause which allowed for the prosecution of anyone who played “party to the commission of” gross indecency. This clause, poet Symonds noticed, served essentially as a conspiracy charge, allowing for a broader pool of convictions.
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 anal sodomy, which remained a separate crime. Lawyers dubbed section 11 of the Criminal Law Amendment Act 1885, the "blackmailer's charter".
This law led to many convictions against paedophiles, male homosexuals and alleged homosexuals. A number committed suicide.
It was famously invoked to convict Oscar Wilde in 1895, after Wilde had (against the advice of friends like Frank Harris and George Bernard Shaw) unsuccessfully taken a private prosecution against the Marquess of Queensberry for criminal libel for asserting (in writing on a calling card left at Wilde's club) that Wilde was posing as a somdomite (sodomite). The charge against Queensberry was urged by Queensberry's son Lord Alfred Douglas, who reluctantly fled to France at the time to avoid possible arrest. Wilde was given the most severe sentence possible under the Act, which the judge described as "totally inadequate for a case such as this". Wilde had had sex with Harry Marrilier and Douglas Ainslie, amongst other men. He would attack this new criminalization of gay behavior in his novel The Picture of Dorian Gray: “The only way to get rid of a temptation is to yield to it. Resist it, and your soul grows sick with longing for the things it has forbidden to itself, with desire for what its monstrous laws have made monstrous and unlawful”. Wilde was accused of being an ephebophile: having sex with over twelve young men between 1892 and 1894, and eventually was sentenced to 2 years hard labour. From prison, Wilde would further condemn the new laws, calling the battle against persecution a “road… long and red with monstrous martyrdoms." He asserted that so-called “Uranian” love was “noble—more noble than other forms”.
Mathematician and early computer scientist Alan Turing was investigated for alleged violations of the Labouchere Amendment when the police discovered a male lover at his house after Turing reported a petty theft. He opted for hormone therapy instead of prison which has been likened to male castration, widely believed to have been at the root of his manic depressive suicide. Turing was pardoned posthumously by Queen Elizabeth II in 2013.
The law was repealed in part by the Sexual Offences Act 1967 when homosexual acts were decriminalized in England and Wales, with remaining provisions being deleted later. This offence remained on the statute books until the Sexual Offences Act 2003.
Notes and references
- "The Law in England, 1290-1885". Internet History Sourcebooks Project. Retrieved 19 September 2013.
- Text of the 1885 Act, accessed 7 March 2012
- Stead & the Eliza Armstrong Case (1885)
- McKenna, Neil (2006). The Secret Life of Oscar Wilde. pp. 76–81.
- Kaplan, Morris B. (2005). Sodom on the Thames: sex, love, and scandal in Wilde times. Cornell University Press. p. 175.
- Aldrich, Robert; Wotherspoon, Garry, eds. (2003). Who's who in gay and lesbian history: from antiquity to World War II. Psychology Press. p. 298.
- Cohen, Ed (1993). Talk on the Wilde side: toward a genealogy of a discourse on male sexualities. Psychology Press. p. 92.
- Hansard report of the debate
- CONSIDERATION. (Hansard, 6 August 1885)
- 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
- Wilde, Oscar. (2010). The Picture of Dorian Gray. Collins Classics. P. 75
- 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.
- Hodges 1992, pp. 488, 489
- Neumann, Caryn E. "The Labouchere Amendment". Retrieved 2012-02-25.