September 4, 1957 (a Wednesday)

A page from the Wolfeden Report.

A page from the Wolfeden Report.

On this date, the Report of the Departmental Committee on Homosexual Offences and Prostitution (better known as the Wolfenden Report, after Lord Wolfenden, the chairman of the committee) was published in Britain. It was significant for recommending that homosexual behavior in private between consenting adults, (i.e., over 21) should be decriminalized. The first printing of 5,000 copies of the 155-page document sold out in a matter of hours, and the report quickly went through numerous reprintings.

Male homosexuality had been illegal in England since the Buggery Act of 1533 (female homosexuality was never specified). The law became much more strict in 1885 with the Criminal Law Amendment Act, which made all homosexual acts illegal, even those carried out in private. Perhaps the most famous prosecution was that of the writer Oscar Wilde in 1895.

The number of convictions rose rapidly in the immediate period after World War II as the Home Office pursued prosecution more rigorously. In 1952, there had been 670 prosecutions in England for sodomy; 3,087 prosecutions for attempted sodomy or indecent assault; and 1,686 prosecutions for so-called gross indecency.

At that time, homosexuality was also the subject of sensationalist reporting in the popular press, and there were a number of high profile cases involving public figures. In 1951, the Russian spies Donald MacLean and Guy Burgess, both known to be homosexual, defected to the USSR. Alan Turing, the cryptographer who helped to break the German Enigma code, was victimized for his homosexuality. Charged in 1952 with “gross indecency”, he chose hormone treatment as punishment (the alternative was prison). He also lost his job. His death in June 1954 was treated as suicide. In 1953, newly-knighted Sir John Gielgud was arrested after trying to pick up a man in a public toilet who turned out to be an undercover policeman. He was found guilty of “persistently importuning for immoral purposes.” In 1954, the sensational trial of the Montagu/Pitt-Rivers/Wildeblood case was held, resulting in a peer (Lord Montagu of Beaulieu), his cousin (Michael Pitt-Rivers), and a journalist (Peter Wildeblood) being convicted of having had sexual relations with young working class men. They received sentences ranging from twelve to eighteen months imprisonment.

All of these events and controversies created pressure for a re-evaluation of the criminalization of homosexuality. Two MPs in December 1953 called upon the government to set up a Royal Commission to investigate the law relating to homosexual offenses, leading the Home Secretary, David Maxwell-Fyfe, to appoint the Departmental Committee in August 1954.

In addition to Wolfenden, the committee consisted of eleven men and three women, of whom thirteen served for the entire three years of the committee’s deliberations. The committee included, among others, two judges, a Foreign Office official, a Scottish Presbyterian minister, a Conservative MP, a consulting psychiatrist, the vice-president of the City of Glasgow Girl Guides, and a professor of moral theology. It was charged “to consider (a) the law and practice relating to homosexual offences and the treatment of persons convicted of such offences by the courts; and (b) the law and practice relating to offences against the criminal law in connection with prostitution and solicitation for immoral purposes, and to report what changes, if any, are desirable.”

The committee met for the first time on September 15, 1954. Over a period of three years, they interviewed religious leaders, policemen, judges, probation officers, psychiatrists, social workers, and homosexuals. When they issued their report in 1957, all but one of the thirteen members still sitting on the committee agreed that homosexual acts should be decriminalized if they took place in private, with consent, between persons at least 21 years of age and not members of the armed forces or the merchant navy.

The committee condemned homosexuality as immoral and destructive to individuals, but concluded that outlawing homosexuality impinged on civil liberties and that private morality or immorality should not be “the law’s business.” The function of the law, the committee wrote:

…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…. It is not, in our view, the function of the law to intervene in the private life of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary to carry out the purposes we have outlined.

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Interview with Sir John Wolfenden in 1967.
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The basis on which the Wolfenden committee made its recommendations was essentially a restatement of the famous “harm principle” of John Stuart Mill, which he stated in his best-known work, On Liberty (1859). Here, Mill’s defense of liberty is as uncompromising as he can make it:

[T]he sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to someone else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute.

The sole dissenter from the majority’s recommendation, James Adair, disassociated himself from the Wolfenden Report, declaring that relaxing the law on homosexuality would be regarded by many homosexuals as “licensing licentiousness.”

Interestingly, despite the testimony of numerous psychiatrists and psychoanalysts, the committee refused to classify homosexuality as a mental illness requiring psychiatric intervention. It found that “homosexuality cannot legitimately be regarded as a disease, because in many cases it is the only symptom and is compatible with full mental health in other respects.” It did, however, urge continued research into the causes and potential cures of homosexuality, such as hormone treatments and psychiatric therapy.

The recommendation to decriminalize homosexuality was widely condemned by many religious and political leaders and by a host of newspapers. The committee’s refusal to declare homosexuality a disease provoked the condemnation of psychiatrists. On the other hand, the British Medical Association, the Howard League for Penal Reform, and the National Association of Probation Officers supported the committee’s recommendations. Somewhat surprisingly, the Archbishop of Canterbury, Dr. Fisher, made an eloquent plea on behalf of the recommendations, declaring that:

There is a sacred realm of privacy… into which the law, generally speaking, must not intrude. This is a principle of the utmost importance for the preservation of human freedom, self-respect, and responsibility.

The home secretary, Sir David Maxwell-Fyfe, was deeply disappointed in the Wolfenden Report. He no doubt expected the committee to recommend additional ways of controlling homosexual behavior, rather than decriminalizing it. In any case, he expressed doubt that the general population would support reform and declined to take action to implement the committee’s recommendation, calling instead for “additional study.” In fact, it took a good ten years for the recommendations in the Report to become law with the new Sexual Offences Act in 1967.

References:

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