1967 and all that
It is 50 years since the Sexual Offences Act 1967 partly decriminalised gay sex. Mike Macnair examines its significance
Under the 1967Sexual Offences Act homosexuality between consenting adult males in private was no longer an offence. ‘Adult’ was defined as someone over the age of 21; and ‘in private’ was subsequently defined by the judiciary: homosexual acts were only permitted in private property and there had to be only two people present. In a public place like a hotel it would still be an offence. Given the limits of the 1967 act, I did not expect anything like the scale of celebration there has been around its 50th anniversary.
In addition we have had a brief rush of publicity around a group of LGBT anarchists forming a fighting unit alongside the Kurdish People’s Protection Units (YPG) in Syria against Islamic State. Rather startlingly, the Daily Mail on July 25 ran the headline, “These faggots kill fascists” - a photo showed them raising the rainbow flag in Raqqa.1
This story of a very small group of volunteers has been all over the mainstream media. There has been, I think, a valid argument, presented on Al Jazeera by a Syrian-Palestinian woman activist, that this group was in substance holding up the flag in favour of the general frame of western intervention in Syria, rather than having any realistic expectation that the Kurdistan Workers Party (PKK) will display strong and persistent solidarity with lesbian and gay rights.2
But the coverage demonstrates that this summer’s celebration of gay rights is very broad. The story is that our modern liberal society has liberated lesbians and gay men from the chains of medieval oppression. Alongside this celebration, LGBT issues, just like women’s issues, have been made into an instrument for the justification of dropping bombs on foreign countries.
In this context it is worth looking a little bit further at what has been celebrated: the 1967 act, what followed it and what went before it. As I have said, it decriminalised homosexual conduct between consenting males over the age of 21. Even though the ‘age of majority’ was reduced to 18 in 1969, as far as homosexual acts were concerned, it remained at 21 until 2000.3
The act had an interesting consequence, in that it initially led to a substantial increase in prosecutions! Roy Walmsley, a member of the Home Office Research Unit, reported in 1978 that offences for ‘indecency between males’ recorded by the police had doubled since 1967, and the number of persons prosecuted trebled between 1967 and 1971. Most of the additional prosecutions involved two males 21 or over, so it was not primarily about consent, but about the ‘in public’ issue. In 1978 there were wide variations between police areas in respect of this.4
This is by no means the only instance of law reform leading to an increase in prosecutions. The same was true of the reforms of street prostitution (introduced under the Street Offences Act 1959), of the 1959 Obscene Publications Act, and of the 1967 Abortion Act. Nearer to the core of criminal law, it was also true of the various offences under the Theft Act 1968. The replacement of laws which are understood to be ancient, unfair, technical and difficult to understand by new legislation incentivises the police to prosecute - and makes it easier for them to do so. And it makes it easier for magistrates and juries to convict.
I might add that the ‘gross indecency’ offence, which had previously been triable by jury, became, as a result of the act, triable before magistrates. That increased the number of prosecutions, as magistrates have always been more willing to convict than juries.
This is not the whole story, however. There has also been a good deal of judicial and prosecutorial resistance to liberalising measures like the Sexual Offences Act. In 1997 - the moment of the Blair landslide - there was, unusually, an opinion poll which took account of people’s professional activities. At that time the general rate of support for the Conservative Party was 30%. However, among lawyers support for the Tories was 60% and among the police 90%.
I suspect that support amongst lawyers has today probably fallen - it is certainly the case that some of the senior judiciary have been considerably more liberal over the last 10-15 years. Amongst policemen, however, I suspect Conservative support is still very high - partly because the job entails constantly dealing with those who have victimised fellow working class people. Many police officers have a perception of the world which corresponds to the theory of original sin: humans are naturally sinful and need the smack of firm government to keep them under control. In other words, the police are more likely to be pro-Conservative.
What about the far right? Internationally studies have been undertaken on the development of mass fascist movements: the Black Hundreds in Russia, the Italian Fascisti, the German Nazis and various others. Invariably these movements had a large spinal core in the police force. It is not usually the case that fascist movements arise as pure extra-state organisations - they present themselves as fighting from outside the state, but are in fact para-state organisations reflecting the particular ideologies within police forces.
We can see judicial and prosecutorial resistance to liberalisation of the law relating to homosexuality in a series of cases:
- Shaw, in 1962, before the act, was a pre-emptive response by prosecutors and the judiciary to the recommendations of the 1957 Wolfenden committee for reform of the laws relating to homosexuality and prostitution. Taking a hard-to-defend case (the publication of a directory of prostitutes), the House of Lords ruled that the courts have a general power of supervision over ‘public morality’, entitling them to invent new crimes if parliament abolishes those which ought to exist. Thus Lord Tucker, in justifying the ruling, said:
Suppose parliament tomorrow enacts that homosexual practices between adult consenting males is no longer to be criminal: is it to be said that a conspiracy to further and encourage such practices amongst adult males could not be the subject of a criminal charge fit to be left to a jury? Similarly with regard to a conspiracy to encourage and promote lesbianism today, or incestuous sexual intercourse in the year 1907? My lords, if these questions are to be answered in the negative I would expect to find some clear authority during the past centuries which would justify such an answer. I know of none.
The defendant was convicted of ‘conspiracy to corrupt public morals’, though all the judges conceded that there was no direct authority for the existence of such a crime.5
- In Knuller (1973) the House of Lords applied this idea, upholding a conviction for “conspiracy to corrupt public morals” through the publication of a magazine which contained contact ads for gay men. The broadest claims of general powers to supervise public morality in Shaw were rejected - but so was the argument that it is not an offence for gay men to contact each other because homosexuality was decriminalised under the 1967 act.6
- Lemon in 1977-79 was a prosecution for blasphemy for the publication in Gay Times of a poem which represented Jesus as homosexual. It was initially privately prosecuted by Mary Whitehouse, a ‘morality’ campaigner in the 1970s, against what she saw as ‘obscenity’ on television. The House of Lords upheld the conviction.7 That the conviction was about homosexuality, rather than about Jesus as a sexual figure, is shown by the non-prosecution of contemporaneous representations of the relationships of Jesus and Mary Magdalene as lovers or possible lovers.8
- Masterson and Holdenin 1986 was a prosecution for “threatening, abusive or insulting behaviour liable to cause a breach of the peace”, which in this case consisted of two gay men kissing at a bus stop. A couple of women complained to the police that what they had seen was disgusting and offensive. The Queen’s Bench division (the equivalent of the court of appeal in this particular context) ruled that it was perfectly proper for the magistrates to find that this was indeed “threatening, abusive or insulting behaviour liable to cause a breach of the peace”.9
- Finally there is Brown in the early 1990s.10 A group of male sadomasochists had filmed a group session and the police somehow got hold of the video. They intended to charge them under the Sexual Offences Act on the basis that this was homosexual conduct not “in private”, as it involved more than two men. Unfortunately for the police, the time limit laid down under the 1967 act had been exceeded. The police, having made arrests and seized property, felt they could not let the matter drop. So instead the participants were charged with assault occasioning actual bodily harm. It was argued that their conduct was liable to have caused injury, and that it is impermissible to consent to being beaten. This opinion was upheld in the House of Lords and in the European Court of Human Rights.
A couple of years later, in the case of Wilson, where a man had branded his wife on both buttocks as part of consensual sadomasochistic behaviour, the court of appeal ruled that it was improper to penalise people’s private sexual conduct by using this offence.11Wilson was on the basis of the details, involving permanent marking, a stronger case for “assault occasioning actual bodily harm” than Brown. The different outcome of the two cases emphasises the point that the courts in Brown werereally mainly concerned with using a loophole in the Sexual Offences Act to convict gay men.
The persistence of this judicial resistance to liberalisation begs the question: when did the transition occur - to the point where the Daily Mail celebrates LGBT fighters against IS, not to mention the across-the-board celebration of the act’s 50th anniversary?
Change in attitudes
It very clearly did not occur in 1967 itself. Nor in 1969 - the year of the Christopher Street riots in New York, when a whole bunch of gay men and transvestites fought back against police raids on gay bars. Arising out of that, and imitating the civil rights and women’s liberation movements, the gay liberation movement was formed, first in the US and shortly after in the UK - I was involved myself in the 1970s. However, while we carried out stunts, took part in debates and made other interventions, we were unable to fundamentally change the public atmosphere.
The real transition in my view took place in 1984-85 with Lesbians and Gays Support the Miners. The consequence was that the National Union of Mineworkers - one of the core, militant manual trade unions - came onside, promoting changes in Labour Party and TUC policy on the question. The workers’ movement began to shift.
As a result the Tories ran a counteroffensive around the 1988 Local Government Act, section 28, which was designed to stop local authorities “promoting” homosexuality - particularly as an alternative family institution. It was a peculiar act, because it was carefully designed to do nothing except threaten - there were no operative effects. It merely provided that it was unlawful for local authorities to promote homosexuality, and in particular to do so “as a pretended family institution”.12
Although section 28 was passed, it created a public image of the Tory Party as backward relative to Labour, the TUC and the core industrial unions - indeed relative to almost everybody. Moreover, we had along with this the Tory Party going on about ‘family values’, the ‘return to Victorian values’ and so on. So the press had a field day and dug up every single sex scandal affecting a senior Tory. No wonder Theresa May ended up declaring that the Conservative Party had to get rid of the ‘nasty party’ tag.13 David Cameron did that in a spectacular way, by actually promoting gay marriage, in an attempt to shake off the image of the Tories as Christian backwoodsmen.
So it was in the 80s when the shift in public opinion really began to take place and there was a substantial reduction in prosecutions. As I have pointed out, the immediate effect of the 1967 act had been an increase.
Its introduction had actually been related to the self-image of the 1964-70 government of Harold Wilson, which did not, of course, present itself as a radical socialist administration, but rather as a “modernising” one - Wilson famously talked about the “white heat of the technological revolution”. It was in this context - a “modernising” government getting rid of archaic law - that the 1967 Sexual Offences Act was introduced.
There were a whole number of other acts of the same sort, starting with the 1965 Law Commissions Act, which set out to codify the law of England, in the hope that it might conceivably catch up with France and Germany. The lawyers, of course, got control of it and turned it into an instrument for private lobbying, whereby lobbyists do not even have to talk to ministers, but can instead make their proposals to the Law Commission, which is very much captured by City lobbyists.
Other ‘modernising’ acts were the 1965 Murder (Abolition of Death Penalty) Act; the Race Relations Acts of1965 and 1968; the 1967 Abortion Act (another piece of legislation that led to a short-term increase in total prosecutions); the 1967 Criminal Law Act, which abolished the ancient distinction between felonies (originally crimes attracting capital punishment) and other offences (‘misdemeanours’); the 1968 Theft Act rolled up a vast mass of legislation about theft and related offences (blackmail, robbery, burglary and so on) into a general code; the 1969 Family Law Reform Act reduced the age of majority from 21 to 18 - and also got rid of certain forms of discrimination against illegitimate children, which had existed for centuries; and the 1970 Equal Pay Act - just about the last act passed by the Wilson government before it was repealed by Edward Heath after the 1970 general election.
As Toby Abse pointed out in our discussion of this issue at Communist University 2017, the 1967 act originated as a private members’ bill promoted by his father, Labour MP Leo Abse. In this it was not unique: the abolition of the death penalty for murder was introduced by Labour MP Sydney Silverman, and the Abortion Act 1967 by Liberal MP David Steel. The fact remains that private members’ bills can only progress as far as being passed if government is prepared to make time for them - and these particular examples were consistent with the Wilson government’s more general ‘modernising’ agenda.
In fact, much of what today is regarded as ‘modern Britain’ can in fact be traced back to the Wilson government. However, liberalism was a part of the cold war narrative, along with abstract expressionism in art, and so on: celebrating ‘our’ liberalism against Stalinist and third-world backwardness. In that sense the role of Wilson can be linked to that of Tony Blair. The 21st century end product turns out to be liberalism on LGBT rights as self-congratulation and as justification for imperialism - “These faggots kill fascists” is an example.
Sodomy and buggery
Is this, nonetheless, a story of very ancient law being modernised out of existence? No. The serious criminalisation of homosexual behaviour is a product of the development of capitalism.
It is true that sodomy was condemned in the Bible and in consequence was contrary to canon law - in England you could be prosecuted as a sodomite in the Bishop’s Court in the Middle Ages, although such prosecutions were extraordinarily rare. That was not because the actual conduct was extraordinarily rare - when the church was at odds with the king, allegations of sodomy were routinely flung in both directions.
In 1533 the Buggery Act was passed by Henry VIII - in the midst of agitation about the immorality of the monasteries, which was used to support their assets being expropriated by the crown. However, when Henry VIII died and his son, Edward VI, acceded to the throne, the first thing he did was to repeal all the new felonies created by his father. The Buggery Act was not the only one: for example, there was a felony created by Henry VIII called ‘Egyptians’, which made it a crime for gypsies to be in England.14 A special offence was also created for cooks who poisoned their masters - ordinarily murder, but the act provided for them to be boiled to death. Perhaps it was little wonder that the regency government for the child king, Edward VI, repealed such legislation.
The regency government changed, Northumberland replacing Somerset, and in 1549 shifted towards more radical Protestantism. It not only introduced the first version of the Protestant book of common prayer, but also abolished ‘chantries’, where prayers were said for the dead - and reintroduced the act against buggery.
Then Edward VI died and his half-sister, Queen Mary, came to the throne in 1553. Again, she repealed a whole list of the new offences created by both Henry VIII and her brother. That is, the Catholics were back in charge, and they got rid of this prohibition, because this was the state interfering in ecclesiastical jurisdiction.
“Enter sodomy, dressed as a monk.” This is a stage direction from a government-sponsored play put on in 1562 by the Protestant government of Elizabeth I. The Buggery Act comes back yet again. But how many prosecutions are there? The answer is, extremely few. Perhaps some of the explanation of this is found in lord chief justice Coke’s report of a 1607 case: in order to successfully prosecute for buggery, “penetration and ejaculation” had to be proved.15
All this is a part of the transition from feudalism to capitalism. The feudal social order involves a split of the exploiters between the military-landlord class and the clerical and monastic caste: a split found both in western medieval Christianity and Japanese medieval Buddhism. Reformation, or secularisation - in Japan the anti-Buddhist seizures of the Meiji restoration of 1868 and following - dethesaurises gold and silver held by churches and monasteries, releasing it for increased monetary circulation in the economy, and at the same time takes large tranches of land out of mortmain holding, pushing both landlords and tenants towards market imperatives and capitalist agriculture. Meanwhile, secularisation also undermines ideologies of ‘natural values’ and, in particular, the idea that lending money at interest is in itself immoral.
The point is not to adopt Weber’s ‘dominant ideology’ approach in his 1904-05 The Protestant ethic and the spirit of capitalism - a belated product of Bismarck’s 1870s Kulturkampf against German Catholicism. It is that the institutional and expropriatory aspect of reformation or secularisation is a part of the transition to capitalism.
Mollies and homos
Now, between this period and the 19th century there is a further shift - in England it begins in the 1660s-70s, but it does not really become visible in the literature and the judicial records until the 1720s. This coincides with the development of a homosexual subculture, producing a political reaction from the same people who ran nationalist and anti-Semitic campaigns.
Guido Ruggiero in The boundaries of Eros: sex crime and sexualityin Renaissance Venice (1989) identifies very clearly from late medieval Venetian judicial records a transition between very occasional prosecutions before there was a homosexual subculture, to people being more regularly prosecuted for participating in that subculture. The same transition is also identified in Alan Bray’s Homosexuality in Renaissance England (1982) and Rictor Norton Mother Clap’s Molly House (1992).16
That subculture begins to generate attention from the Tory Party on an episodic basis. So we find it with the Society for the Reformation of Manners in the 1690s-1700s and the Society for the Suppression of Vice in the 1740s-50s. Tobias Smollet, a Tory author, wrote about the “terrible problem” of homosexuality in the Royal Navy around that time. It was highlighted again in the 1820s, when the Tories were losing ground to the Whigs, while in 1829 the Offences Against the Person Act made it easier to convict people of sodomy.
And then we come to the ‘Labouchere amendment’, or section 11 of the Criminal Law Amendment Act 1885. This followed the launching by WT Stead, editor of the Pall Mall Gazette, of a press campaign against the prostitution of teenage girls, which led to a bill to increase the age of consent for women from 12 to 16, and to create various other offences relating to prostitutes.
Henry Labouchere was a radical who thought that the bill was hypocritical, in particular because there had recently been a spectacular homosexual prostitution scandal in Dublin, in which, because important Irish ascendancy figures were implicated, things were partly hushed up. Labouchere thought it was a case of double standards to go after the prostitution of young women, when the scandal had been limited in Dublin; and he drafted a very broad general prohibition on homosexual relations as an amendment. This was voted through in a late-night sitting of the House of Commons.17
What drove all this anti-homosexual legislation was the appearance of a subculture which itself was driven by the emergence of large-scale manufacture. The period of manufacture is one of the development of capitalist urbanisation: people came to the cities looking for work in factories and workshops.
The converse of this is that space now existed for a subculture. People no longer had to live in a family (or in some kind of institution, such as a monastery or college), where the opportunities did not arise for same-sex relations as a specific subculture. Indeed, marriage in the Middle Ages was not defined by sexual attraction: it was defined by arrangements between the parents of the bride and the groom, made with a view to gaining economic advantage. Arranged marriage continued to be the case down to the emergence of manufacture, urbanisation and the beginning of commodification of lodgings, food supply and leisure arrangements. These developments created ‘cruising grounds’ for heterosexuals - and also for homosexuals. Marriages could now be arranged on the basis of attraction.
But what does attraction in this context mean? In essence it means some degree of fetishisation of the attributes of heterosexual desirability. Men are expected to be more manly and women are expected to be more feminine than would be the case under the old arranged-marriage regime. But the intensification of the fetishism of the attributes of heterosexuality produces its own negation in the form of homosexuality - and also, since 1967 through to the 1980s, an efflorescence of all sorts of divergent, divided and subdivided specificities of fetishisms of one sort and another.
This is a set of dynamics which emerges out of the development of capitalism: a society based on the market and the wage relationship in manufacture sets up a transformation in the nature of marriage. That creates negations in the form of a whole variety of deviant sexualities of one sort or another. And that in its turn gives rise to the possibility of political parties, religious groups, etc calling for ‘purity’ to make the issue of sexuality a major campaigning point.
That was not what was going on with the Buggery Acts of 1533, 1549 and 1563. These were part of the reformation: simultaneously the culmination of the medieval regime of conflicts between church and state, and, by the radical subordination of the church to the state, opening up a range of space for market incentives and proto-capitalist order.
But it is what was going on with the increasing prosecutions, along with Tory Party election campaigns, episodically in the 18th and 19th centuries, and then with the Labouchere amendment and so on. It is as yet unclear whether the Tories’ 1983-87 offensive around ‘loony left councils’ ‘promoting homosexuality,’ leading to section 28, will prove to be the last such offensive. For the present, the dominant trends among the Tory leadership have remained committed to the liberal appearances expressed by gay marriage and so on; and this approach has continued to be promoted by the core of the US state, and its military, in spite of the election of rightwing Christian extremists in the Congress and Donald Trump to the presidency.
But the popularity among the party faithful of the Catholic fundamentalism of Jacob Rees-Mogg should remind us that Tory anti-homosexual campaigns go back to smears against William of Orange in the 1690s and against the Whig Earl of Sunderland in the early 1700s. The matter is as deep-rooted as Tory anti-immigration campaigns, going back to the Huguenot refugees from France in the 1680s, and certainly alive today. It is probably better to assume that the fear of being the ‘nasty party’ will evaporate, as Trumpist and Brexiteering nationalism continue to undermine the liberal aspect of neoliberalism, and the old order of ideas will gradually resurface.
Should we be celebrating 1967? Well, yes, we should. But we have to be aware of the double edge of these issues. Gain and loss are in this matter interpenetrated negations. 1967 was both a victory against the witch-hunting of homosexuals and used by police, prosecutors and courts to increase prosecutions. Equally, it was both a victory for actual liberty and a show of liberal modernisation in the interests of ‘western’ imperialist policy.
As long as we continue to approach issues of this sort through the framework of single-issue politics or of ‘intersectionality’, we remain prisoners of the choice between warmongering, liberal capital (Clinton, Blair, Cameron and so on) and witch-hunting, patriarchal-traditionalist-nationalist capital (Trump, Thatcher, Rees-Mogg and so on).
We have to get beyond these sectional choices, and hence beyond the mere celebration of 1967, to the more fundamental aim that “the emancipation of the productive class is that of all human beings without distinction of sex or race” - or of gender and email@example.com
2. R Ghazzawi, ‘Decolonising Syria’s so-called “queer liberation”’ Al Jazeera August 5 2017: www.aljazeera.com/indepth/opinion/2017/08/decolonising-syria-called-queer-liberation-170803110403979.html.
3. Sexual Offences Amendment Act 2000, passed by Parliament Act procedure over the opposition of the House of Lords after a 1997 decision by the Strasbourg Court of Human Rights in Sutherland v UK that the different ages of consent for homosexual and heterosexual conduct was discriminatory and groundless. Convenient summary account in Wikipedia, ‘LGBT rights in the United Kingdom’.
4. ‘Indecency between males and the Sexual Offences Act 1967’ (1978) Criminal Law Review pp400-07.
5. Shaw v DPP (1962) AC 220.
6. Knuller v DPP (1973) AC 435.
7. Whitehouse v Lemon (1979) 2 WLR 281.
8. J Schaberg The resurrection of Mary Magdalene Continuum 2002, pp71-72.
9. (1986) 3 All ER 39.
10. R v Brown (1994) 1 AC 212.
11. R v Wilson (1996) 2 Cr App R 241.
12. On its mainly rhetorical character, see M Macnair, ‘Homosexuality in schools - section 28, Local Government Act 1988’ (1989) 1 Education and the Law 35-39.
13. ‘“Nasty party” warning to Tories’ The Guardian October 8 2002.
14. Poisoning Act 1530, 22 Hen 8 c 9, repealed 1547 1 Edw 6 c 12; Egyptians Act 1530, 22 Henry 8 c 10; Romanies were thought to have come from Egypt, hence the corruption to ‘gypsy’. In contrast to the Buggery Act, Mary’s government made the offence more severe - Egyptians Act 1554 1 and 2 Philip and Mary, c 4. This difference points to the religious significance of the Buggery Act.
15. ‘Buggary’ (1607) 12 Coke Reports 36. The requirement of proof of ejaculation was abolished in 1829 by Offences Against the Person Act 1829, 9 George 4 c 31, s 18.
16. And see also NM Goldsmith The worst of crimes: homosexuality and the law in eighteenth century London Ashgate 1999.
17. FB Smith, ‘Labouchere’s amendment ...’ Historical Studies 17, pp165-73 (1976). HG Cocks Nameless offences: homosexual desire in the 19th century London 2010, pp135-44; D Boyle Scandal: how homosexuality became a crime Newcastle upon Tyne 2016.