Here in full in what he said taken from the archives of Hansard HC Deb 26 November 1958 Cols 390-399.
I am very glad to have caught your eye, Mr. Deputy-Speaker, because when I tried to raise this question last Session, by way of a private Member's
Motion, I succeeded in speaking for only the last minute of the day. I am glad that I have a little longer this afternoon.
At the outset, I would like to join my right hon. Friend and the hon. Member for Rossendale (Mr. Anthony Greenwood) in paying a warm tribute to Sir John Wolfenden and the other members of his Committee—including two Members of this House—for the frank, outspoken, carefully considered and humanitarian document which they have produced. It is a courageous document, which would have been impossible to write not so long ago. We should also remember that this document was motivated by the action of the hon. Member for Pembroke (Mr. Donnelly), who originally raised the question of homosexuality in an Adjournment debate in April, 1954, and was supported by the then hon. Member for Aberdeenshire, East, the present Lord Boothby.
The Report is concerned with possible changes in the criminal law. It is not concerned with causes, biological or otherwise, of manifestations of sexual behaviour; it is concerned merely with the criminal law as it affects them today. It is worth while remembering that the Report took three years to produce and, incidentally, cost over £8,000. Nearly 200 witnesses gave evidence, either orally or in writing, including such members of the community as the police, schoolmasters, social workers, magistrates, doctors, psychiatrists, lawyers and others, including homosexuals, but—and this is an interesting point—not one prostitute. The Report was signed in August of last year and was published in the following month, so that the public have had over a year to think about it before it has come here for discussion.
The most controversial proposal in the Report, and the one which has understandably provoked the most discussion, is that embodied in paragraph 62, which recommends that homosexual behaviour between consenting adults in private should no longer be a criminal offence. To some extent this proposal has tended to obscure the other proposals, set out on pages 115 to 117. I would mention particularly the proposal that, except for indecent assaults, all prosecutions for any homosexual offence more than twelve months old should be barred by Statute. In the field of prostitution, too, I see that
there is the proposal, about which we have heard something this afternoon, that it should no longer be necessary to establish annoyance in prosecutions for solicitation.
there is the proposal, about which we have heard something this afternoon, that it should no longer be necessary to establish annoyance in prosecutions for solicitation.
Whether or not one agrees with these proposals it will be generally conceded by everyone who has read the Report that it is a social document of the highest importance. There are 30 main recommendations in the Report. I do not propose to go through them, but I want to draw attention to the basic philosophy which underlies the Report and which has clearly influenced all these recommendations. It is expressed in paragraphs 13 and 14, where the function of the criminal law is indicated to the extent that it concerns the Committee's inquiry. It is one of the few quotations that I should like to make this afternoon.
Towards the end of paragraph 13 the Committee says, with regard to the function of the criminal law:
In this field, its function, as we see it is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical, official or economic dependence.
14. It is not, in our view, the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular pattern or behaviour, further than is necessary to carry out the purposes we have outlined. It follows that we do not believe it to be a function of the law to attempt to cover all the fields of sexual behaviour. Certain forms of sexual behaviour are regarded by many as sinful, morally wrong, or objectionable for reasons of conscience, or of religious or cultural tradition; and such actions may be reprobated on these grounds. But the criminal law does not cover all such actions at the present time; for instance, adultery and fornication are not offences for which a person can be punished by the criminal law. Nor indeed is prostitution as such.Nor, I may add, is lesbianism or homosexual conduct between females, and here, indeed, is an anomaly. If homosexual conduct between consenting adults in private is to continue to be an offence, is homosexual conduct between consenting female adults in private also to continue not to be an offence?
Coming back to the basic philosophy expressed in these two paragraphs, a clear distinction is drawn between crime and
sin. In other words, it is argued that the acts of two people committed together should not come within the purview of the criminal law unless it can be shown these acts are harmful to a third party.
sin. In other words, it is argued that the acts of two people committed together should not come within the purview of the criminal law unless it can be shown these acts are harmful to a third party.
There are two further conceptions brought out in the Report, and I think that they are of the highest importance, namely, that minors must be protected and public decency must not be affronted. If we can accept those propositions—and I for one think that we can—then the way is open to accepting most if not all of the Committee's recommendations or a; least approaching them in a spirit of sympathy.
I think that we must consider, too, how far the State is justified in punishing the sinful but not necessarily socially harmful acts of two private individuals and whether the result of interference with private life and human liberty does not bring about mare evils than it sets out to prevent.
In the matter of homosexual behaviour between consenting adults in private the evidence is almost invariably obtained by one or other of the parties turning what is called Queen's evidence and in consideration for not being himself prosecuted giving evidence against his partner. It may be considered as somewhat objectionable that in these circumstances a conviction should depend upon the evidence of an accomplice.
We have also heard something this afternoon about blackmail. I would only support what has already been said particularly by the right hon. Gentleman the Member for Rossendale. In this connection, I should like to quote a letter which I received two or three days ago from a homosexual when he heard that this subject was being debated in the House this afternoon.
This is a man who was a consenting adult. He was convicted some years ago on the evidence of his accomplice for an act committed in private and he received and underwent a sentence of imprisonment. On his release from prison he got a job as a clerk in a solicitor's office. He held that job for two or three years and then someone wrote to his employers, sending a cutting of the trial at which he was convicted, and the result was that he lost his job. This is what he wrote to me:
I don't wish to pretend I'm good—but I am like many of the homosexuals, cursed with the thing from the beginning. God in heaven only knows the fights I have put up against it—and I'm sure I'm one of many—and have lost each time. It seems so utterly ridiculous for two men, who wish to live together in their own home, to be classed as criminals and 'sex maniacs.' I know men and women who have committed far, far worse acts than homosexuals look upon us as worse than if we were murderers.
I do so want to try and make you people look upon this coming debate with kindness and sympathetic consideration and think 'There but for the grace of God go I.' It is all right for people to condemn us so much, but they have no idea of the life of fear and dread we live all the time, in case our friends find out or we are caught. I know I did, and I know the hell I lived in when the police came to me, and I'm still living in hell now! You seem to be 'cut off' from everything, and can get no employment. Just because I was cursed with the homosexual trait, I was no more able to get rid of it than a man could get rid of cancer. It's in you from birth—I feel sure of that. I have studied so many cases and men I have met. When you understand, you feel terribly sorry.I do not think, having read a letter of that kind, that there is anyone who cannot feel the same spirit of sympathy.
I confess to a little disappointment that no specific course has been taken, except purely negative, in regard to paragraph 62 of the Report. We have heard and it was said in another place by the noble Lord the Lord Chancellor, when the subject was debated there, that Her Majesty's Government did not think that the time was opportune for legislation now and there could be no prospect of early legislation on the subject.
Of course, it can be argued that if there is a need to appoint a committee, the whole point of such a committee is that, common opinions on the subject, commonly expressed and canvassed, are often ill-informed and heavily biased by natural repugnance and preconceived moral judgments, and proposals for any change in the law should be based not on popular prejudices, but on accurate information and unbiased consideration of the views of those persons and bodies whose work has brought them into touch with the moral and social issues concerned—in other words, of people who knew what they were talking about. This is what, I think, we have in the Report.
One argument used by the Home Secretary this afternoon which impressed me was that, if there were no change in the law regarding consenting adults, it
would make the weak or weaker-minded individual less likely than if there were a change to be drawn into the homosexual group because the sanction of the criminal law remains. I would have thought—it is purely my own personal opinion—that, in fact, the continuance of this outmoded piece of legislation makes it more likely for such an individual to be drawn into such a group. When Oscar Wilde was sitting in Reading gaol and meditating on the trouble that brought him there, he wrote in "De Profundis", in regard to his conduct, that it was like "feasting with panthers—the danger was half the excitement."
would make the weak or weaker-minded individual less likely than if there were a change to be drawn into the homosexual group because the sanction of the criminal law remains. I would have thought—it is purely my own personal opinion—that, in fact, the continuance of this outmoded piece of legislation makes it more likely for such an individual to be drawn into such a group. When Oscar Wilde was sitting in Reading gaol and meditating on the trouble that brought him there, he wrote in "De Profundis", in regard to his conduct, that it was like "feasting with panthers—the danger was half the excitement."
I believe that when this reform comes, as undoubtedly it will come, the removal of the sanction of the criminal law will make the possibility of corruption less likely than more likely. So far as public opinion is concerned, it seems to be fairly evenly divided. When the Report was published, 14 months ago, public reactions were less violent than they would have been not so very many years ago. In the Press there were seven national newspapers, with a total combined readership estimated at about 61 per cent. of the population above the age of 16, which gave on the whole a favourable verdict. There were two exceptions, with a combined readership of just under 30 per cent. of the population, which were loud in their condemnation.
Perhaps a better clue can be provided by the public opinion polls. While a clear majority of those polls were for driving the prostitutes off the streets, rather more than half gave an opinion against the recommendations on homosexuality as they affected consenting adults; but it was not a great majority, only a little more than 50 per cent. What is remarkable is that so many people should have declared themselves in favour of the main change proposed, and the opponents would not appear to be anything like so considerable in numbers as may have been supposed from reading the two newspapers to which I have referred.
The comparative amount of favourable opinion has undoubtedly been guided, as has been brought out today already, to some extent by the outspoken views of the leading Churches, by the Church of England and the Roman
Catholic Church. I think that that is important. Specifically, these views have been expressed by the two Archbishops, the Church Assembly, the Church of England Moral Welfare Council, and by a Roman Catholic committee, as well as many leading spokesmen of the Free Churches. The Church of England and the Roman Catholic Church have united to say this:
Catholic Church. I think that that is important. Specifically, these views have been expressed by the two Archbishops, the Church Assembly, the Church of England Moral Welfare Council, and by a Roman Catholic committee, as well as many leading spokesmen of the Free Churches. The Church of England and the Roman Catholic Church have united to say this:
It is not the business of the State to interfere in the purely private sphere but to act as the defender of the common good.To conclude what I have to say on this part of the Report I should like to emphasise the fact that three popular fallacies have been exposed by the Report. The first one is that male homosexuality always involves sodomy. In fact, that is far from being so, and the misconception which has arisen is largely due to over-reliance on court cases. Homosexuals who come up in court are not typical, as, indeed, the Report points out. On the contrary, the evidence shows that the great majority of homosexuals merely indulge in an affectionate relationship, conduct which was not criminal in this country before 1885 and which is not criminal in most Continental countries today.
The second fallacy is that homosexuals are necessarily effeminate in appearance and behaviour and can easily be picked out. This, of course, has been disproved over and over again, particularly by the records of some of them in the last war.
The third fallacy is that most cases which come before the courts are of practising male homosexuals in private. The evidence again disproves this. There are two instructive tables in the Report, Tables II and VI. Table II makes it clear that the average number of persons against whom proceedings were taken in respect of homosexual offences in the past three years is between 2,400 and 2,500, and Table VI makes it clear that those who were convicted of offences committed in private with consenting adults numbered only 300 over the last three years. So that, in fact, only about one in eight of those prosecuted for homosexual offences come within this latter category. In other words, the considerable majority now penalised for homosexual offences would continue to be so
penalised if the main proposal of the Committee became law.
penalised if the main proposal of the Committee became law.
I come back to the importance of appreciating this point since the Report places great emphasis, as it rightly should, on the protection of minors, and, indeed, in one instance, which I do not think has been mentioned today, it actually proposes to increase the penalty for this type of sexual offence, in paragraph 91, where it is proposed that for an offence between an adult and a juvenile aged from 16 to 21, in circumstances not amounting to indecent assault, the maximum penalty should be raised from two years' imprisonment to five years'.
When Oscar Wilde came out of prison arid published "The Ballad of Reading Gaol", George Ives, the criminologist and historian of our criminal law, wrote congratulating him on his poem and expressing the view that the law on homosexual offences should be amended. Wilde replied in these words:
Yes. I have no doubt we shall win. But the road is long, and red with monstrous martyrdoms. Nothing but the repeal of the Criminal Law Amendment Act would do any goad. That is essential. It is not so much public opinion, as public official, that need educating.I venture to think that those words are as true today as they were when they were written sixty years ago.
Now I want to say just a word or two on Part Three of the Report. Like the homosexual, the prostitute is an outcast in modern society, but with this important difference: she is not a criminal. What the Wolfenden Committee has done is, first, to acknowledge that prostitution is as old as civilisation, and, secondly, to advise that its conduct should be confined to strict privacy. In other words, the Committee accepts the fact that no change in the law, however severe, is likely to abolish prostitution. What can, however, be abolished, or at least mitigated, is the nuisance of public soliciting.
I quoted a letter from a homosexual. Let me quote a letter from a prostitute. It reads as follows:
Why do you trouble yourself with long letters'? I want 50 gold pieces but no letters. If, therefore, you love me, pay up; but if you love your money more, then you needn't bother me any more. Goodbye.That was not written yesterday, but 2,500 years ago. It is one of the more interesting but less edifying fragments of Greek literature of that period which has come down to us.
The Report makes two recommendations that the requirement of annoyance be eliminated, and an increased range of penalties for soliciting. Personally, I agree with the hon. Member for Rossendale. I feel very uneasy about the annoyance proposal. As he has very rightly pointed out, it was proposed to drop this requirement at the time of the debates in this House on the Criminal Law Amendment Act in 1885, and it was not proceeded with for the reasons which have been adduced by the hon. Gentleman.
To drop this requirement would, in my opinion, put great powers in the hands of the police, which could be abused, and if it is incorporated in new legislation it could mean that any woman walking up and down Bond Street and looking into the shop windows could be picked up at the whim of a police officer and charged with soliciting. I do not suggest that that is likely to happen very often, but the possibility would be there, and the tendency also to encourage corruption among the police.
I think that we should remember the words of John Stuart Mill when giving evidence before the Royal Commission on the Contagious Diseases Acts, which regulated the activities of prostitutes for a time in the third quarter of the last century and which were later shown to have been abused and were repealed. He said:
When power is given which may easily be abused, we ought always to assume that it will he abused, and although it is possible that great precautions will he taken at first, those precautions are likely to be relaxed in time.We should think very carefully before this requirement is allowed to go.
As for new penalties or range of penalties, I think that to increase the fines is reasonable having regard to the changed value of money since the penalties were originally introduced, but again I am very doubtful of the wisdom of giving magistrates powers to pass up to three months' imprisonment for third and subsequent offences. I am doubtful of the efficacy of imprisonment as a remedy for prostitution.
There is also the proposed power that magistrates should be able to remand in custody for a maximum of three weeks a prostitute for social and medical reports. I think that that must be watched very carefully as well. If that proposal is to be put into effect, a prostitute should certainly not be remanded to a prison at all, but to a properly constituted remand centre.
I have spoken long enough already, and I shall say nothing about the other proposals, the very impressive proposals, about premises and living on immoral earnings, which I support. We should remember that in our understandable anxiety to clean up the streets there is a danger that when prostitutes are driven off the streets the process may lead to vice being organised on a more alarming scale. I need not remind the House of the "call-girl" racket, which has developed to such an extent in New York and other North American cities. Nevertheless, I think that the Wolfenden Committee has tried to grapple with this problem of prostitution, which I think we all recognise, especially since some of the streets in our own capital city and some of our provincial cities really are a national disgrace and, to my knowledge, deeply shock foreign visitors who come to our shores.
My right hon. Friend the Home Secretary spoke, as I was very pleased to hear him speak, about his distinguished great aunt, Josephine Butler, who did so much to reclaim women from the streets, and who said:
The law shall be equal for all whether it protect or punish.If the Wolfenden Report has done nothing else, it has at least shown that in respect of two members of the community, namely, the male homosexual and the female prostitute, Josephine Butler's dictum still leaves much to be desired.
There is a plain duty cast upon Her Majesty's Government and upon the House by the Wolfenden Report to make an honest attempt to put these grave matters right.
