Sexual Offences Act 1967: Reform and repression

1967 was just a start; being the first gay law reform since anal sex was made a crime in 1533, during the reign of King Henry VIII, and since all other sexual acts between men were outlawed in the Victorian era, in 1885.

My new research reveals that the liberalisation of 1967 was not as liberal as many people believe. An estimated 15,000 – 20,000 gay and bisexual men were convicted in the decades that followed. That’s because homosexuality was only partly decriminalised. The remaining anti-gay laws were policed more aggressively than before, by a State that continued to oppose LGBT acceptance and equality.

In total, in the 128 years from 1885 to 2013, I calculate that around 100,000 men were convicted of consenting same-sex acts. Many were jailed and nearly all suffered devastating knock-on consequences: they lost their jobs and marriages, families and friends disowned them and they were abused and sometimes assaulted in the street. Many descended into a downward spiral of depression, alcoholism, mental illness and suicide or attempted suicide.

Taking the long view, the 1967 legislation was progress. It repealed the maximum penalty of life imprisonment for anal sex and ended the blanket outlawing of all homosexual acts. But it was a limited reform and it still discriminated.

Pandering to the homophobic notion that young men are seduced and corrupted by older men, the age of consent was set at 21 for sex between men, compared to 16 for heterosexual and lesbian couples. Moreover, the punishment for a man 21 or over having non-anal sex with a man aged 16-21 was increased from two to five years.

Gay sex remained prosecutable unless it took place in strict privacy, which meant in a person’s own home, behind locked doors and windows, with the curtains drawn and with no other person present in any part of the house. This meant it continued to be a crime if more than two men had sex together, if other people were in the house at the same time or if men having sex were filmed or photographed by a third person.

Seven men in Bolton were convicted of these ‘non-private’ offences in 1998 – over 30 years after 1967. Two of the seven, who had sex with a man who was six months under the then gay age of consent of 18, were given suspended jail terms and put on the Sex Offenders Register, alongside rapists and paedophiles. None of them would have been convicted if their partner had been a woman.

The 1967 reform applied to only England and Wales; not being extended to Scotland until 1980 and to Northern Ireland until 1982. It did not include the armed forces or merchant navy, where sex between men remained a criminal offence. Gay military personnel and merchant seamen could still be jailed until 1994, for behaviour that was no longer a crime between gay civilians. Legislation authorising the sacking of seafarers for homosexual acts on UK merchant ships were not repealed until April this year.

The centuries-old anti-gay laws were not abolished in 1967. They remained on the statute book under the heading “Unnatural offences.”

The two main gay crimes continued to be anal sex, known in law as buggery, and gross indecency, which was any sexual contact between men other than anal sex, including mere touching and kissing.

There was also the offence of procuring; the inviting or facilitating of gay sex. Bizarrely, the 1967 reform decriminalised anal sex in certain circumstances but banned men from procuring lawful anal sex for other males, such as arranging a gay sex date for a friend.

The law against soliciting and importuning remained in force and was interpreted to designate homosexuality as an immoral purpose. It criminalised men chatting up men or loitering in public places with homosexual intent, even if no sexual act took place. Men were convicted under this law after 1967; sometimes for merely smiling and winking at other men in the street.

There were other arrests under ancient legislation against indecency, such as the Town Police Clauses Act 1847 and the Ecclesiastical Courts Jurisdiction Act 1860.

Gay and bisexual men, and some lesbians, continued to be prosecuted, right up until the early 1990s, under public order and breach of the peace laws, for public displays of affection, such as kissing and cuddling. Such prosecutions ended only when the LGBT direct action group, OutRage!, highlighted and protested against them.

The limited decriminalisation of 1967 meant that the long-standing and continuing homophobic laws were not enforced in certain circumstances. But many aspects of gay male life remained criminal. In fact, the repression got much worse. There were police stake-outs in parks and toilets, sometimes using good-looking young police officers as bait to lure gay men to commit sex offences. Gay saunas were raided. ‘Disorderly house’ charges were pressed against gay clubs that allowed same-sex couples to dance cheek-to-cheek.

In 1966, the year before partial decriminalisation, 420 men were convicted of gross indecency. To my shock, I found that in 1974 the number of convictions had soared by over 400 percent, with 1,711 men found guilty of this offence. The authorities seemed determined to ensure that the limited liberalisation of 1967 did not give a green light to what they still regarded as a vice and perversion.

Indeed, the Law Lords ruled in 1973 that gay lonely heart adverts in IT magazine were a “conspiracy to corrupt public morals.” Despite the reform of 1967, homosexuality was declared by their lordships to be only partly legal, not moral and contrary to the public good.

In this era, homophobic discrimination in housing, employment and the provision of goods and services remained lawful by default. There was no legal protection against it. People were denied employment or sacked from their jobs because of their sexual orientation and gender identity. Others were refused rented accommodation or evicted from it. Some were turned away from pubs and restaurants. Lesbian mothers and gay fathers often lost custody of their children in divorce cases. There was no redress in law for LGBT people until 2003-2007, when a series of legal protections against discrimination were finally legislated.

In the 1980s, the Conservative government’s “family values” and “Victorian values” campaigns whipped up hysterical levels of homophobia; aided by the moral panic over AIDS, which was dubbed the “gay plague.” At the 1987 Conservative Party conference, Prime Minister Margaret Thatcher used her keynote speech to attack the notion that people had a right to be gay.

Coinciding with this intolerant anti-LGBT atmosphere was a massive rise in arrests of gay men for consenting victimless behaviour. Delving into Home Office archives, I found that there were 1,718 convictions and cautions for gross indecency in 1989. Indeed, the total of 2,022 recorded offences of gross indecency that year was almost as many as the 2,034 recorded in 1954, when male homosexuality was totally illegal and when Britain was gripped by a McCarthyite anti-gay witch-hunt.

There was also a huge increase in queer-bashing violence. From 1986-91, I identified at least 50 murders of men in circumstances that pointed to a homophobic motive. Police investigations to catch the killers were often derisory. We were still seen by some officers as less deserving of the protection of the law.

The gross indecency law of 1885 had been used to convict the computer genius Alan Turing in 1952 and, before him, to jail the playwright Oscar Wilde in 1895. Together with the criminalisation of anal sex, the gross indecency law was finally repealed in England and Wales by the Sexual Offences Act 2003. As a result, for the first time in 470 years these two nations had a criminal code that did not penalise gay sexuality.

In Northern Ireland, the ban on anal sex was finally repealed in 2008. Scotland’s anti-gay laws were abolished in 2009 but, in the case of sodomy, did not take effect until 2013. Gay sex ceased to be a crime across the whole of the UK only four years ago – 46 years after 1967. Unbelievable but true!