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Depiction of the buggery of a goat, by Paul Avril

The British English term buggery is very close in meaning to the term sodomy, often used interchangeably in law and popular speech. It may also be a specific common law offence encompassing both sodomy and bestiality.

In law

In English law "buggery" was first used in the Buggery Act 1533, while Section 61 of the Offences against the Person Act 1861, entitled "Sodomy and Bestiality", defined punishments for "the abominable Crime of Buggery, committed either with Mankind or with any Animal". The definition of "buggery" was not specified in these or any statute, but rather established by judicial precedent.[1] Over the years the courts have defined buggery as including either

  1. anal intercourse or oral intercourse by a man with a man or woman[2] or
  2. vaginal intercourse by either a man or a woman with an animal,[3]

but not any other form of "unnatural intercourse",[4] the implication being that anal sex with an animal would not constitute buggery. Such a case has not, to date, come before the courts of a common law jurisdiction in any reported decision. In the 1817 case of Rex v. Jacobs, the Crown Court ruled that oral intercourse, even with an underage and/or non-consenting animal, did not constitute buggery or sodomy.[4]

At common law consent was not a defence[5] nor was the fact that the parties were married.[6] In the UK, the punishment for buggery was reduced from hanging to life imprisonment by the Offences against the Person Act 1861. As with the crime of rape, buggery required that penetration must have occurred, but ejaculation is not necessary.[7]

Most common law jurisdictions have now modified the law to permit anal sex between consenting adults.[8] Hong Kong did so retroactively in 1990, barring prosecution for "crimes against nature" committed before the Crimes (Amendment) Ordinance 1990 entered into force except those that would still have constituted a crime if they had been done thereafter. Sir John Wolfenden, of the Departmental Committee on Homosexual Offences and Prostitution in Great Britain, was put in charge to enact legislation which would eventually make it illegal for personal relationships to be regulated by the government in Britain. The legislation eventually took the name The Wolfenden Report.[9] Homosexual buggery was decriminalised in England and Wales in 1967 with an age of consent at 21 years, whereas all heterosexual intercourse had an age of consent at 16 years. The Sexual Offences Act 2003 did not fully remove buggery as a concept in English law, as the previous law is retained for complainants (consensual or "pseudo-consensual")[clarification needed] under the age of 16, or 18 with regards to an adult perceived to be in a position of trust. As the law stands, buggery is still charged, exclusively regarding "pseudo-consensual" anal intercourse with those under 16/18, because children cannot legally consent to buggery although they may appear to do so. Rape is charged when the penetration is clearly not consensual. Buggery with an animal is still unlawful under Section 69 of the Sexual Offences Act 2003.

In the Republic of Ireland, the Criminal Law (Sexual Offences) Act 1993 abolished the offence of "buggery between persons".[10] For some years prior to 1993, criminal prosecution had not been made for buggery between consenting adults. The 1993 Act created an offence of "buggery with a person under the age of 17 years",[11] penalised similar to statutory rape, which also had 17 years as the age of consent. The Criminal Law (Sexual Offences) Act 2006 replaced this offence with "defilement of a child", encompassing both "sexual intercourse" and "buggery".[12] Buggery with an animal is still unlawful under Section 69 of the Sexual Offences Act 2003. In 2012 a man was convicted of this offence for supplying a dog in 2008 to a woman who had intercourse with it and died.[13]

Etymology

The word bugger and buggery are still commonly used in modern English as a mild exclamation. "Buggery" is also synonymous with anal sex.

The word "bugger" was derived, via the French bougre, from Bulgar, that is, "Bulgarian", meaning the medieval Bulgarian heretical sect of the Bogomils, which spread into Western Europe and was claimed by the established church to be devoted to the practice of sodomy.[14] "Buggery" first appears in English in 1330, though "bugger" in a sexual sense is not recorded until 1555.[15]

References

  1. ^ Quintin Hogg, Baron Hailsham of St Marylebone (ed.). Halsbury's Laws of England. Vol. 11 (1) (4th ed.). p. ¶505. {{cite book}}: Invalid |nopp=Y (help); Unknown parameter |nopp= ignored (|no-pp= suggested) (help)
  2. ^ R v Wiseman (1718) Fortes Rep 91.
  3. ^ R v Bourne (1952) 36 Cr App R 135; Sir Edward Coke also reports "... a great lady had committed buggery with a baboon and conceived by it..." at 3 Inst 59.
  4. ^ a b Crown cases reserved for consideration: and decided by the Twelve judges of England, from the year 1799 to the year 1824. 1825. pp. 331–332.
  5. ^ Because consent was not required, heavier penalties require proof of lack of consent – see R v Sandhu [1997] Crim LR 288; R v Davies [1998] 1 Cr App R (S) 252.
  6. ^ R v Jellyman (1838) 8 C & P 604.
  7. ^ R v Reekspear (1832) 1 Mood CC 342; R v Cozins (1834) 6 C & P 351; the Offences against the Person Act 1861, §63.
  8. ^ For example, in England and Wales homosexual anal sex was legalized under the Sexual Offences Act 1967. Heterosexual anal sex was not subsequently decriminalized until the Criminal Justice and Public Order Act 1994.
  9. ^ "The Cabinet Papers". The National Archives. Retrieved 16 April 2016.
  10. ^ Criminal Law (Sexual Offences) Act, 1993; §2: Abolition of offence of buggery between persons. Irish Statute Book.
  11. ^ Criminal Law (Sexual Offences) Act, 1993; §3: Buggery of persons under 17 years of age. Irish Statute Book.
  12. ^ Criminal Law (Sexual Offences) Act 2006 §§1,2,3 and Schedule. Irish Statute Book.
  13. ^ Sheridan, Anne (8 November 2012). "Court told mother died after acting on 'sexual fantasy'". Limerick Leader. Retrieved 27 November 2012.
  14. ^ Erin McKean, ed. (2005). New Oxford American Dictionary, 2nd edition. Oxford University Press. ISBN 0-19-517077-6. {{cite book}}: Cite has empty unknown parameter: |coauthors= (help)
  15. ^ OED 1st edn.

Further reading

  • Smith & Hogan, Criminal Law (10th ed), ISBN 0-406-94801-1
  • The dictionary definition of buggery at Wiktionary
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