“This pardon is an important, valuable advance that will remedy the grave injustices suffered by many of the estimated 50,000 to 100,000 men who were convicted under discriminatory anti-gay laws between 1885 and 2003 – the latter being the year when all homophobic sexual offences legislation was finally repealed in England and Wales,” said human rights campaigner Peter Tatchell. He has pressed for a public apology and pardon for the last 30 years.
“A pardon has connotations of forgiveness for a wrong done. These men and the wider LGBT community believe they did no wrong.
“The legislation has a few omissions. It does not explicitly allow for the pardoning of men convicted of soliciting and procuring homosexual relations under the 1956 and 1967 Sexual Offences Acts. Nor does it pardon those people, including some lesbians, convicted for same-sex kissing and cuddling under laws such as the Public Order Act 1986, the common law offence of outraging public decency, the Town Police Clauses Act 1847, the Ecclesiastical Courts Jurisdiction Act 1860 and the Army, Navy and Air Force Acts and other diverse statutes.
“However, agreements secured by Lord Cashman mean that people convicted under these other laws can also apply for a pardon.
“In the case of men now dead, it is unclear whether only the relatives of a deceased person can apply for a pardon on their behalf. Many convicted men were rejected and disowned by their families. The government should make it clear that any concerned person, including personal friends, can apply for a pardon for a deceased person. For example, there are no known relatives of James Pratt and John Smith who, in 1835, were the last men to hang for homosexuality in England. They deserve a pardon, especially given that the safety of their conviction is doubtful.
“Contrary to popular misconception, the 1967 Sexual Offences Act did not legalise or even fully decriminalise homosexuality. It was a limited, partial reform. Most aspects of same-sex behavior between men remained criminalised and all the anti-gay laws remained on the statute books under the heading ‘Unnatural offences’. In fact, convictions increased by nearly 400% in the years after the 1967 Act.
A briefing on the limited nature of the 1967 law reform follows below.
“An estimated 20,000 men were convicted of consenting adult same-sex behavior after 1967. Some were convicted for merely chatting up, winking or smiling at other men, for cruising and loitering and for aiding and abetting homosexual acts – even lawful ones post-1967.
“The four main offences that penalised gay and bisexual men were: buggery (anal sex), gross indecency (all non-anal sex acts between men, including mere touching and kissing), procuring (facilitating, aiding and abetting) and importuning (chatting up, cruising). These crimes were not repealed until 2003,” said Mr Tatchell, Director of the Peter Tatchell Foundation.
Briefing on the Sexual Offences Act 1967 and beyond
By Peter Tatchell
Britain has made great strides towards lesbian, gay, bisexual, transgender and intersex (LGBTI) equality since the turn of the century. We have gone from being the country with the largest number of anti-gay laws in the world to being one of the world’s most progressive nations in terms of the legal rights of LGBTI people.
It has been a long, hard struggle, with many setbacks and some disappointing half-baked reforms along the way.
Many people are under the false impression that the Sexual Offences Act 1967 fully decriminalised – or even legalised – male homosexuality. How wrong they are. The reform was a very partial, limited decriminalisation.
The 1967 Act only applied to England and Wales; not being extended to Scotland until 1980 and to Northern Ireland until 1982. It did not apply to the armed forces or the merchant navy, where sex between men remained a serious criminal offence until decades later.
The age of consent was set at 21 for sex between men, compared to 16 for sex between men and women. Aiding or facilitating a homosexual act remained unlawful, as did public displays of affection and men chatting up men in a public place.
Gay sex was only lawful if it took place in private, 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. It continued to be a crime if more than two men had sex together or filmed or photographed themselves having sex or if a third or more person was present in any part of the property. They could be jailed.
The 1967 Act did not repeal the centuries-old anti-gay laws. They remained on the statute books under the heading: ‘Unnatural Offences’.
The four main crimes that penalised gay and bisexual men were: buggery (anal sex), gross indecency (all non-anal sex acts between men, including mere touching and kissing), procuring (facilitating, aiding and abetting) and importuning (chatting up, cruising). These crimes were not repealed until 2003.
Post-67, they were not enforced in certain narrow circumstances. But many aspects of gay male life remained criminal. In the four years after 1967, convictions for consensual gay offences rose by almost 400%. The authorities were more determined than ever to repress LGBTI lives.
In addition, homophobic discrimination in housing, employment and the provision of goods and services remained lawful by default. There was no legal protection against it. Thousands were denied employment or sacked from their jobs because of their sexual orientation. Many others were refused or evicted from rented accommodation.
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.
The consequence was a massive rise in queer-bashing murders and convictions for victimless same-sex acts. From 1986-91, there were over 50 known murders of gay men in circumstances that pointed to a homophobic motive. Police investigations to catch the killers were often derisory. We were still mostly criminals and, according to many police officers, didn’t deserve the protection of the law.
In 1989, over 2,000 men were convicted of consenting adult same-sex relations, which was almost as many annual convictions as in the era 1950-55, when male homosexuality was totally illegal and when Britain was gripped by a McCarthyite-style anti-gay witch-hunt.
The ‘gross indecency’ law of 1885 – prohibiting any sexual contact between men, even mere kissing and touching – had been used to convict the mathematical and computer genius Alan Turing in 1952 and, before him, to jail the playwright Oscar Wilde in 1895. It was repealed only in 2003. Likewise, the criminalisation of ‘buggery’ (anal sex) – enacted in 1533 during the reign of King Henry VIII – was repealed only in 2003.
Since the Sexual Offences Act 2003, for the first time in over 500 years, we have a criminal code that does not discriminate on the grounds of sexual orientation. Progress at last!