Consenting Adults in Private: in Search of the Sexual Subject

Thesis submitted by Kate Gleeson in fulfilment of the requirements for a Doctor of Philosophy in the School of Politics and International Relations at the University of New South Wales

Even I must understand it

(Bertolt Brecht’s donkey)*

* On Brecht’s desk stood a writing-aid in the shape of a toy donkey with a sign around its neck that read ‘even I must understand it’ (Eyre & Wright: 2000: 214).

Abstract

In this thesis I examine the ways in which the modern state addresses sex. I want to ascertain by what considerations the state is informed in its relationship to sex. What is behind the state’s regulation of sexual practices? What is its interest in regard to sex? To answer these questions I examine fundamental artefacts of the modern state, especially the law (but also the bureaucracy), as directed by Brown. Brown involves the search for the sexual subject; The

Lords in Brown were at a loss for how to conceptualise the sexual subject before them. Their search is my own: who is the sexual subject? What is his relationship to the state? To answer these questions, Brown directs me for authority to two widely separated moments of supposed classic ‘discontinuity’: the 1957 Wolfenden Report, and the late-Victorian Queen’s Bench.

These two moments in government - the 1960s and the 1880s - are usually depicted as ideologically different, indicating discontinuity, difference, change and perhaps even revolution between the relative approaches of the state to sex. And yet, in Brown, both are upheld as appropriate contemporary authorities on sex, the individual and the state. Here I take my cue from the Lords and interrogate the artefacts of these two periods in government to ascertain the story of the 20th century state’s relationship to sex.

Although not a search for origins, my thesis does involve a search for the object of the state in addressing sex through legislation, Parliament and the judiciary. My work is not a history in the Classical sense of a transcendent totality, but is rather a political analysis, a history of the present driven by genealogy, in which I am driven to comprehend the past in order to understand a contemporary situation.

My thesis is a political analysis that incorporates genealogy in its focus on law as indicative of the state. Law is precedent. Precedent is genealogy. It incorporates a detailed study of primary artefacts of the state. I present detailed analyses of seemingly discontinuous moments: individual court cases, individual Committees, individual treatises and opinions. I employ ‘thick description’, to unearth the static continuity within these moments. I make use of political memoirs as well as academic political, sociological and historical analyses. These artefacts, together with the academic products that so far have brought them to protracted life, constitute the ‘entangled and confused parchments’ of my study: they represent the pantheon of men responsible for the sexual myths and practices of the modern state. They represent the state itself.

I conclude by drawing together my overall argument in this thesis, that during the 20th century there has been no radical change of the modern state in regard to sex, and that the success of the permissive mythology has generally blinded us to this fact. Not only have we mistaken the nature of the permissive state as concerned with evolution, we have erroneously been persuaded of the blanket repression of the Victorian state. The big break, the discontinuity of the 1960s, that often is described as ‘revolutionary’ (and inevitable in the teleology of progress), is a re-configuration of the same object as the Victorian state. The permissive state enacts the latest stage in the great Victorian project of embodying the sexual subject – a subject at once embodied and created as an object of control.

Table of Contents

Preface ...... 7 Acknowledgements and thanks ...... 10 Introduction: Myth Making and the Modern State ...... 12 Brick layering: practising history ...... 12 The Wolfenden Report: significance and effect...... 14 The Victorian foil and revisions in history: a necessary component of the permissive mythology ...... 18 Theorising the modern state ...... 20 Embodiments of the age and the power of individuals’ mythologies of the state ...... 25 Methodology, limits, of the thesis ...... 28 Thesis outline/structure...... 31 Section One: The freewheeling 60s and the Modern Sexual Subject...... 38 Brown: the ‘most important recent event’...... 38 Turning to Wolfenden: Lords in search of the sexual subject...... 42 The old state and a respect for the individual...... 45 The battle of Brown, between good and evil ...... 47 The new state: the usual stories and the usual suspects ...... 50 Chapter One: Myths of the Permissive State ...... 55 Mythologies of progress: the usual stories of the 20th century...... 57 Universal values: understanding the new and old states...... 58 The legislation of consent: typifying the 1960s...... 61 Suicide and the death penalty: the beginnings of the permissive state ...... 63 Capital punishment in crisis: Ellis, Bentley and Evans, and John Christie ...... 65 The causalist (utilitarian) explanation...... 67 Blood and toil and sweat and tears: the threat of homosexuality to the empire...... 68 Just husbands killing their wives: the state’s view of homicide ...... 70 An apparent relinquishing the body: the role of the state in the 1960s ...... 71 Public demands? A comforting myth of the permissive state...... 72 Homosexual Law Reform and Permissiveness...... 74 The modern individual: another comforting myth of the permissive state...... 75 Conclusions: the ruse of the demands of the permissive society ...... 76 Chapter two: Starting with sex, The Wolfenden Report...... 78 Sir David Maxwell Fyfe: the man who made sodomy legal ...... 79 John Wolfenden and freedom ...... 82

Getting liberal with ‘liberalism’: another myth of the modern state...... 85 Liberalism and homosexuality ...... 89 Hart and Devlin: the 20th century debate of the old and the new states ...... 92 Embarrassment: the mother of invention and the motivation for Wolfenden...... 96 Recalcitrant bodies: controlling the sexual subject in Wolfenden ...... 99 Speaking of the 20th century homosexual subject: creating the homosexual subject in law ...... 103 Conclusions: the facts of Wolfenden...... 106 Chapter Three: Myths of Wolfenden, Our Moral Panics...... 108 Moral panics: defining the 1950s...... 109 Behind the myths that continue to work against women ...... 114 The excited press, the DPP and the purge...... 116 The homosexual surge: the great 1950s myth ...... 119 The Kinsey Report...... 121 Prostitution panic ...... 123 Defending the Empire: Earl Winterton...... 126 Policing sex in the 1950s...... 128 The dangers of proselytisaton: a fear of the press ...... 130 The myth of the witch hunt...... 132 Vicars, Lords and the FBI: embarrassing arrests ...... 134 Peter Wildeblood: perhaps the first homosexual...... 137 Conclusions: punishing women, the ruse of the gay man ...... 140 Chapter Four: the Myth of our Wishes for Prostitution ...... 143 The myth of 1950s prostitution: repeated over and over...... 145 ‘Moral’ concerns: prominent objections to the Wolfenden Report ...... 149 Meddling women: John Wolfenden’s dismissal of feminist dissent ...... 153 The untouchable man: the true subject of the Wolfenden Report...... 159 Poor vulnerable men: the victims of prostitution as defined by the state...... 163 An ordinary aberration: the timeless paradox of prostitution law...... 165 Prostitution: inevitable or private? Having it both ways, the weak logic of Wolfenden ...... 166 Constructing privacy: the real project for prostitution of the permissive state ...... 168 Conclusions: cracks in the mythologies, Wolfenden concerned not with freedom, but with morality...... 172 Chapter Five: a Bill Called William...... 175 The ‘metropolitan sound’: sex and politics in the news ...... 176 The Sexual Offences Act: ten years in the making ...... 178

Lord Arran writes: passing the buggers’ bill...... 179 Lionheart Abse and the Freudian agenda of pity in homosexual law reform...... 182 Abortion and Oedipus: the many agendas of reform...... 187 Privacy: the gift of the House of Lords...... 190 Buggers’ clubs: the private world and the amending clause ...... 191 Tolerance & permission, historical revisions in homosexual law reform...... 196 Conclusions: evidence of the permissive state?...... 199 Section Two: In Search of the Sexual Subject, Objects of Victoria...... 201 Sexless and silent Victorians...... 201 The marital rape exemption: a predictable archetype of the past? ...... 203 Lord Mustill and Clarence...... 207 The Old State: the Offences Against the Person Act 1861...... 208 Chapter Six: Brutal at his Best, James Fitzjames Stephen and Clarence...... 215 Fitzjames Stephen: the archetypal Victorian patriarch...... 218 Stephen and sex: a libertine at heart?...... 220 The respectability imperative: the crux of Victorian sex...... 222 Selina’s story: the woman behind the marital rape exemption ...... 224 The legacy of Clarence: myth making and the power of the state ...... 228 Sir Matthew Hale: the supposed authority for the marital rape exemption...... 229 A wife’s rights: Jackson v Clarence...... 231 Absurd and ancient dicta: rejecting Hale in the 19th century...... 233 Emerging Equality: the emergence of the Victorian female subject in the work of Mill and in the courts ...... 235 Victorian judicial prejudice: morality, harm and unnatural vice...... 239 Sacred privacy: the agenda of the Victorian state...... 242 Stephen and marriage: a primary agenda in Clarence...... 243 Conclusions: what does Clarence say about the nature of sex, for both the repressive Victorians and the permissive moderns?...... 245 Chapter Seven: Clarence and the Mutable Nature of Consent...... 248 Victorian treatment of sexual harm...... 250 Clarence: a case of serious difficulty...... 252 Mr Forrest Fulton and his creation of the marital rape exemption...... 253 A lack of unanimity: the fragile judgment of Clarence...... 256 Stephen and Clarence: making an exception ...... 259 Stephen and marital rape: a hasty conversion...... 260 Marital rape: an insignificant matter ...... 262 The legacy of Clarence: fraud in sex & myth making...... 263

Unlawful harm and the transformative nature of consent in assault ...... 268 Consent to indecent assault: an erroneous authority for Clarence...... 271 Coney: the harm of violence and the irrelevance of consent to ‘real’ assault...... 274 Stephen and Coney: upholding the public interest in regard to individual assault...... 276 Imposed consent: the consistency of the modern law...... 277 Conclusions: supple consent and the consistency of the public interest ...... 279 Chapter Eight: What is a Prostitute? ...... 282 The rights of tenacious men: the underlying premise of prostitution law...... 286 The common prostitute: a natural phenomenon ...... 288 A necessary evil: prostitution, desire and the creation of the sexual object...... 290 Contagious diseases legislation in the 19th century: prostitution as essential to the Empire ...... 292 Woman as sewer: contagion and filth...... 296 What is a prostitute?: the offer of sex...... 299 Skinner: the commercial importance of prostitution ...... 301 The Criminal Law Amendment Act 1885: aimed not at sex?...... 303 The Labouchere Amendment: aimed not at sex? ...... 305 deMunck: consolidating the definition, the act of lewdness, not necessarily sex ...... 308 Conclusions: prostitution law, not aimed at sex ...... 310 Conclusions: the Vision of the Modern State in Regard to Sex...... 313 Bibliography ...... 333 Primary sources: archival...... 333 Primary Sources: government reports ...... 333 Secondary sources...... 334 Press Reports: authors attributed...... 347 Press Reports: authors unattributed ...... 348 Internet sources...... 349 Cases cited ...... 352

Preface

In one of the politics subjects I tutor, we address the case of Brown, a notorious English case of the 1990s in which a number of men were prosecuted and gaoled for consensual sadomasochistic sex. The case is taught in the context of sex and human rights as a way of examining the limits of the rights of individuals to consent to sex without interference from the state. When I first started teaching Brown I assumed it would be fertile ground for debate among students. The case is rich in detail and crucial in content. There is little more dear to our hearts than our right to our sexuality, or our right to be free from harm. And yet, in class, the debate has often stalled.

I have found that students have often already decided about Brown. For many students, there is little to debate in this case. It is straightforward: the result of Brown is simply wrong. It is not merely that Brown is unjust, or unfair, but for many students and what they know of the criminal law, Brown is plainly incorrect. My students possess a strong belief in the proper role of the state in regard to sex, one of non-interference and upholding privacy rights. They note that gay sex is legal (now) and that in the dark old days men and sometimes women were persecuted for their sexualities, even for what they did in private. But now, in my students’ own lives, sex is not the business of the state. As long as sex involves adults and consent, it has nothing to do with the state. Hence Brown was decided wrongly.

In reading the House of Lords case, students tend overwhelmingly to favour the dissenting arguments of Lord Mustill. Lord Mustill argued to set aside the convictions on the basis of the supremacy of consent, autonomy and privacy. Lord Mustill makes sense to my students, who connect these values of consent, autonomy and privacy with their understanding of the modern state and its relationship to sex. For them, Lord Mustill tends to represent the only modern, sane and just argument in the various judgments of the case. Lord Mustill is undoubtedly the good guy. And yet, when I turn to Lord Mustill’s arguments I am surprised and alarmed.

Early in his argument, Lord Mustill cites the 1888 Queen’s Bench case of Clarence to support his case for quashing the convictions in Brown. For Lord Mustill, no assault was disclosed on the facts of either Clarence or Brown, and thus the convictions in Brown should be quashed, just as in Clarence. Clarence involved the quashing of assault convictions of a man who had transmitted gonorrhoea to his wife. It is best known as the case on which the marital rape exemption rested. For Lord Mustill, Clarence forms the modern authority on sex, consent and assault. Although Lord Mustill represents the modern and civilised view of the state that values consent, autonomy and privacy, his arguments fell back for authority to the archaic Victorian nightmare of a case that condemned women for over 100 years to marital sexual slavery. Lord

Mustill’s arguments led me to ask about Brown: what is going on in this case?

The authority of Clarence was ostensibly overruled in 1991 when Justice Owen in the House of

Lords described the marital rape exemption ‘as offensive a fiction as it is senseless’.1 And yet,

Lord Mustill cites Clarence in 1993, in his capacity as the ‘good guy’. Clearly the divisions

between the old ‘illiberal’ view of the state, and the new ‘civilised’ view of the state are messy.

What is the good guy doing, invoking the wisdom of Clarence? Mine is not a simple historical

curiosity. There are important implications of Lord Mustill’s arguments. To begin with,

applying a case that has been overruled is unusual. But this is not just any case. Clarence had

represented for me the last vestiges of the worst of Victorian misogyny and cruelty. By 1967 we

had managed to shrug off the more extreme manifestations of the Victorian persecution of

homosexuality by way of the Sexual Offences Act. But Clarence persisted into the 1990s to deny women sexual rights. And its authority was invoked in Brown, beyond marriage, as the

guiding principle for understanding the modern relationship of the state to sex in general.

Lord Mustill started me thinking about the modern state and its relationship to sex. What have I

assumed about the modern state that might not be correct? Is the state in fact still informed, as

1 R v R [1991] 1 AII ER at 749.

Lord Mustill would suggest, by the notorious cruelty and persecution of the Victorian state? If so, how can it be that we do not see the Victorian agenda? And what of this agenda: what have I assumed about it that might also be incorrect? My students’ understandings of Brown have also informed my quest. When discussing Brown, my students tend to present as natural a certain view of the modern state, of how the state is, of what the state does. It is a view of the state as respectful of the privacy and the autonomous rights of adults to consent even, or especially, to minority sex and sexualities. It is the antithesis of the persecutory Victorian state. The hegemonic success of this image of the state is almost complete. ‘Consenting adults in private’, the tag of the Wolfenden Report of 1957, has infiltrated the consciousness of the populace.

‘Consenting adults in private’ is the modern mantra of the citizens of the modern state.

‘Consenting adults in private’: this is what the modern state is about, supposedly.

In this thesis I want to test the mantra. Lord Mustill made me suspicious. There seems to be a complication, perhaps even a deception, behind the standard mythology of the modern state. I want to identify what is at the core of the state’s relationship to sex: who, or what, is privileged in this relationship: is it indeed the consent of adults in private? And why in private? I begin my search for answers with Brown. Brown might be thought to test the limits of the relationship between the individual and the state with regard to sex. In one sense, Brown seems a gift to the study of this relationship. Although the case concerns unconventional sexual activities

(sadomasochism), the decision in fact involves a test of the limits of the ethos governing the state’s regulation of sex: an ethos that ostensibly privileges the individual, autonomy, privacy and consent. In this sense, the simple questions of this thesis concern Brown. How did we come to this decision? What does Brown tell us about the object and the interest of the state with regard to sex? But my thesis is not about Brown. Brown merely provides my aperture into the intentions of the state. My focus is rather the Wolfenden Report and Clarence. My thesis involves time travel.

Acknowledgements and thanks

When I mentioned that I was looking at the Wolfenden Report, a rather unhelpful colleague in

Liverpool responded, 'hasn't that all been done already?' Certainly it's been 'done', but how has it been done, and by whom? I think the political history of this period can be 'done' much better than it has been, and I am grateful for the (otherwise) diverse support that I received in my quest to contribute perhaps to the 'undoing' of the standard mythologies of the state in regard to sex, especially the myths of the Wolfenden Report and marital rape. Originally I might have thought that my contribution to the 'undoing' of these myths would be most important to women and women's history. However, I am pleased to note that my analysis in this thesis is equally compelling for gay men, in what it reveals about their political history in regard to law reform.

In 2003 I was awarded a British Council Chevening Scholarship that enabled me to study and undertake research for this thesis at the Department of Academic Legal Studies, Nottingham

Trent University (NTU). My work at NTU and my research in the UK was invaluable to the thesis. Indeed, without it, this would be only half a thesis. Selina and Ethel Clarence and I are indebted to the British Council. I am especially grateful to Professor Michael Gunn, head of

Academic Legal Studies at NTU, who enthusiastically welcomed and harboured a non-lawyer accommodated in palatial surrounds. While harboured at NTU I benefited greatly from the wisdom, support and friendship of the members of the SOLON project (the partnership between NTU and the Galleries of Justice, promoting interdisciplinary studies in bad behavior and crime) especially Dr Kim Stevenson and Dr Judith Rowbotham. In Nottingham, thanks also to Terry Hanstock, legal librarian extraordinaire, Paul Baker of SOLON and Beverly

Baker, librarian of the Galleries of Justice. And thanks to the members of the Feminist Crime

Research Network, for their encouragement and interest in an antipodean perspective. Thank you Rob Elliot, for the loan of your home and your wine.

In London, thanks to Dan for her couch, and to the enthusiastic and meticulous staff of the

Public Records Office, The British Library and its newspaper repository at Collingdale, the staff of the Family Records Centre, and the Genealogical Association. And not least of all, thank you to the many socially minded academics, students, conference-dwellers and boxing-partners who welcomed and entertained me as an interloper in the UK.

This thesis would not have been possible without the financial tenure of the Australian

Postgraduate Award scholarship, an integral component to Australia’s research and development. I am also highly grateful to the Australian Universities European Network, based at the Australian National University, for valuing my work and awarding me a substantial grant to undertake research in the UK in 2003, and to the research committee of the Faculty of Arts and Social Science at the University of NSW (UNSW) that acknowledged the importance of archival research (and travel) to my thesis. I am indebted to the tenacious staff of Interlibrary

Loans at the library of UNSW, Katie Vandine from Interlibrary Loans at the University of

Sydney, the staff of Mitchell Library and the State Library in Sydney.

Thanks also to the staff and postgraduate students of the School of Politics and International

Relations at UNSW who welcomed my occasionally obscure seminars (especially the one in fancy dress), and thanks to the undergraduate students of Pols 2020 who, over the years, pushed me to think harder about Brown, especially our many international students. Thanks to my managers and colleagues at the Australian Bureau of Statistics for encouraging me in my studies and being so flexible and understanding in accommodating my timetable. I say the warmest thank you to the beautiful, supportive, compassionate and above all, political community that is inner-city Sydney, which despite my repeat and lengthy absences, remains my home.

Thank you Helen Pringle for telling me about Brecht’s donkey.

Introduction: Myth Making and the Modern State

History also teaches us to laugh at the solemnities of the origins. (Michel Foucault, 1971)2

Brick layering: practising history

I am wary of murdering history. Michel Foucault has faced the accusation that history was

‘being murdered’ in his work.3 For Foucault, the accusation is related to the ways in which

history has been constructed and guarded. Foucault notes the privileging of linear narrative in

historical discourse.4 Within this sequence of events as history is practised, individuals are

‘caught up within the totality which transcends them and trifles with them, but of which they are perhaps at the same time the unwitting authors’.5 In contrast to this vision of totality that transcends and incorporates the author, Foucault invokes an ideal reminiscent of the bricoleur of Claude Levi- Strauss,6 in order to propose a history that resembles more a ‘layering of bricks’.7

Practising history, and excavating the bricks, involves acknowledging that the secret is that things have no essence.8 The discovery of the secret of there being no essence to historical

moments teaches us how to ‘laugh at the solemnities of the origin’.9 Foucault argues that we

tend to think of the present, this moment, as the moment of greatest perfection.10 But, he argues, historical beginnings are in fact lowly: not in the sense of ‘modest or discreet, like the steps of a

2 Michel Foucault, ‘Nietzsche, Genealogy, History’ (1971), in James D Faubion (ed) Essential Works of Michel Foucault 1954-1984 Volume Two: Aesthetics, (London: Penguin, 1994), 372. 3 Michel Foucault, ‘On the Ways of Writing History’ (1967) Ibid, 279. 4 Ibid, 280. 5 Ibid. 6 Claude Levi-Strauss, The Savage Mind (London: Weidenfeld & Nicolson, 1974), 17. 7 Michel Foucault, ‘On the Ways of Writing History’ (1967), 282. 8 Michel Foucault, ‘Nietzsche, Genealogy, History’, 371. 9 Ibid, 372. 10 Ibid.

dove, but derisive and ironic, capable of undoing every infatuation’.11 Embracing these lowly beginnings, Foucault proposes a genealogy of knowledge that would ‘cultivate the details and accidents that accompany every beginning; it will be scrupulously attentive to their petty malice; it will await their emergence, once unmasked, as the face of the other’.12 Although it puts me at risk of allegations of ‘murdering history’, I would accept Foucault’s challenge to unearth the layers of bricks and the non-essence at the core of what constitutes the relationship of sex to the modern state. I want to identify the lowly beginnings, the accidents and indeed the

‘petty malice’ that informs contemporary models of the modern state’s relationship to sex.

In this thesis I examine the ways in which the modern state addresses sex. I want to ascertain by what considerations the state is informed in its relationship to sex. What is behind the state’s regulation of sexual practices? What is its interest in regard to sex? To answer these questions I examine fundamental artefacts of the modern state, especially the law (but also the bureaucracy), as directed by Brown.13. Brown involves the search for the sexual subject; The

Lords in Brown were at a loss for how to conceptualise the sexual subject before them. Their search is my own: who is the sexual subject? What is his relationship to the state?14 To answer

these questions, Brown directs me for authority to two widely separated moments of supposed

classic ‘discontinuity’: the 1957 Wolfenden Report, and the late-Victorian Queen’s Bench.

These two moments in government - the 1960s and the 1880s - are usually depicted as

ideologically different, indicating discontinuity, difference, change and perhaps even revolution

between the relative approaches of the state to sex. And yet, in Brown, both are upheld as

appropriate contemporary authorities on sex, the individual and the state. Here I take my cue

11 Ibid. 12 Ibid, 373. 13 R v Brown [1993] 2 AII ER 75. 14 Throughout this thesis I use the masculine pronoun to refer to the sexual subject of the law. As I illustrate throughout the thesis, the sexual subject is male and heterosexual. Although I might seem to limit my discursive exploration by accepting this categorisation at the outset, I purposefully restrict myself to the categories of the state. I want to get to know the state from the inside. This involves playing by the rules of the state.

from the Lords and interrogate the artefacts of these two periods in government to ascertain the story of the 20th century state’s relationship to sex.

Before I embark on my own argument in the body of the thesis, first I briefly explain the

backdrop of the popular and academic understandings, against which my own arguments are

framed.

The Wolfenden Report: significance and effect

The Wolfenden Report paved the way for the decriminalisation of men’s homosexual sex in

private, and affirmed the non-criminal nature of so-called ‘private’ prostitution of women. The

period of the 1950s and 1960s in general saw a raft of legislation that appeared to alter the ways

in which the state addressed concerns and practices of sex, often said to have been enacted in

the model of Wolfenden. The state’s novel ideological stance is viewed by many as a radical,

decisive and intentional shift. For Frank Mort, if there is a moment marking a radical shift in

sexual regulation it is ‘the late 1950s’ and Wolfenden.15

The Wolfenden Report, with its apparent goal of ‘civilised tolerance’,16 embodies the spirit of

the ‘permissive’ era. The legislative outcomes of the Wolfenden Report might have been

perceived at the time to affect relatively few people because they expressly concern street

walking prostitutes and homosexual men.17 However, the Report is concerned with more than

15 Frank Mort, ‘Sexuality: Regulation and Contestation’, in Gay Left Collective (ed) Homosexuality: Power and Politics (London: Allison & Busby, 1980), 38-39. Frank Mort’s insightful (brief) discussions of the Wolfenden Report prompted much of my own research. Mort is an historian and Professor of Cultural Studies with particular interests in sex and modern consumption (and was a Labour councillor in North London from 1986-1990). Mort describes himself as one of the ‘older renegades’ of the 1970s gay liberation movement, whose politics grew out of the Marxism that he ‘devoured’ in the 1970s (in Weeks: 1994: 204-205). 16 Eustace Chesser, Live and Let Live: The Moral of the Wolfenden Report, with an introduction by John Wolfenden (London: Heinemann, 1958), 7. 17 Kinsey’s luminous 1 in 10 figure for the incidence of homosexuality was generally unknown in 1957 (Kinsey’s Sexual Behaviour in the Human Male was published in 1948). And the trend in popular sex therapy texts such as that of Benjamin and Masters, which show that 80% of all men had used a prostituted woman for sex, was not prevalent until the mid 1960s. See for example, Harry Benjamin & REL Masters, Prostitution and Morality: A Definitive Report on the Prostitute in Contemporary Society

prostitution and men’s homosexual sex. The Wolfenden Report is a treatise on sex and the state.

It clearly expresses the ‘modern’ principles for the state’s role in regard to all adult sex, and indeed all questions of so-called ‘morality’ in general.18

During the second half of the 20th century there were great changes in the ways in which the state addresses sex, notably concerning rape and the age of consent, but I would argue that the model, ethos and therefore the interest of the state is more constant than is implied in conventional understandings.19 The Wolfenden ethos has been held up as unfulfilled in those instances where rights to sexual privacy are incomplete or have been contested, such as sadomasochism and the age of consent for men’s gay sex.20 Wolfenden remains the cornerstone

of the modern epoch in the approach of the state to sex, if its promise is taken not to be

completely fulfilled. Wolfenden is the standard of appeal and recourse when sexual rights are

denied. Jeffrey Weeks has identified the Wolfenden Report’s continuing importance in these

terms:

The liberalisation of the legal framework that followed the Wolfenden Report on homosexuality and prostitution in 1957 signalled an abandonment of legal absolutism, that is a view of the law which saw it as embodying the moral norms of society. Instead the new approach relied on a clear distinction between the role of the law, to uphold generally acceptable standards of public behaviour, and the domain of morals, increasingly seen as a matter of private choice (the “Wolfenden Strategy”). In practice this means allowing, in the famous phrase, “consenting adults in private” to pursue their personal ends without interference so long as the public were not unduly frightened.21 and an Analysis of the Cause and Effects of the Suppression of Prostitution (London: Souvenir Press, 1964), 194. 18 For Stuart Hall, Wolfenden is the necessary starting point: ‘this is not because it was the cause and “origin” of everything that followed, because a straight line of “influence” can be traced in evolutionary fashion through to the end of the sixties, or because every feature of the legislation of consent in the two decades can be traced back to it. Rather we must begin with Wolfenden because it initiated a process. It set out to articulate the field of moral Ideology and practice which defines the dominant tendency in the “legislation of consent”’ (National Deviancy Conference :1980:9). 19 In 2000 the English government undertook a review of sexual offences in the criminal law. See Home Office, Setting The Boundaries: Reforming the Law on Sex Offences (London: Home Office, 2000). In 2003 the Sexual Offences Act took effect. For the changes in legislation see Kim Stevenson, Anne Davies, and Michael Gunn, Blackstone’s Guide to the Sexual Offences Act 2003 (New York: Oxford University Press, 2004). 20 Chris Tame ‘Why Sado-Masochism Should not be Criminalised’ evidence submitted by Libertarian Alliance to the Law Commission (1994) sourced at www.libertarian.co.uk/lapubs/legan/legan020.pdf. 21 Jeffrey Weeks, ‘An Unfinished Revolution: Sexuality in the Twentieth Century’, in Jeffrey Weeks (ed) Making Sexual History (London: Polity Press, 2000), 171. Jeffrey Weeks would appear to have become

Thus, to understand the current status quo, first I must take a step back and ask: what was the state doing in what Eric Hobsbawm calls the ‘freewheeling sixties’?22 Although now a generation since the inauguration of the permissive state, contemporary models for the regulation of sex are still largely informed (and in some areas governed) by the legislative model of the 1960s that apparently privileges privacy, autonomy, the individual, tolerance and choice. For Weeks, choice in particular has been so hegemonic as to have become the ‘ruling morality’ both of the contemporary ‘political Right and the Liberal Left’.23 The role of

Wolfenden in cementing the morality of privacy, tolerance and choice in the forefront of our contemporary understandings of sex and its relationship to the modern state cannot be overstated. For example, Frank Mort calls to gay men: ‘we should be aware that politically we continue to occupy a space which is very much formed in the aftermath of Wolfenden’.24 I

would only add that the space of Wolfenden is important for contemporary understandings of

sex in general – gay or otherwise.

the primary ‘target’ of my thesis. This is due to his prolific work, and his massive influence and reach in the field of sexual history. In 1977 Weeks published Coming Out: Homosexual Politics in Britain, from the Nineteenth Century to the Present, a history of homosexuality that suggests a trajectory of progress and enlightenment for the ‘coming out’ of sexual history itself. Since then, Weeks has authored and edited numerous books and articles, mainly on sexual history and ‘values’. In 2002 he re-iterated that until recently (and perhaps until the advent and influence of authors such as himself), to write about sexuality in academia was ‘dangerous’: it made you suspect (Phillips & Reay: 2002: 27). However Weeks has normalised the academic history of sexuality, and has particularly normalised a ‘queer theory perspective’, as opposed to a materialist, Marxist or even feminist perspective. In this regard, Weeks is criticised by Donald Morton, and others, as trying to ‘distract attention once again from economics to ethics to cover over the failure of the gay/lesbian/queer mainstream to work towards economic justice’ (1996). For examples of Weeks’s extensive work since Coming Out, see Sex Politics and Society: The Regulation of Sexuality Since 1800 (London: Longman, 1981 & 1989), Sexuality and its Discontents: Meanings, Myths and Modern Sexualities (London: Routledge & Keegan, 1985), The Lesser Evil and the Greater Good: The Theory and Politics of Social Diversity (London: Rivers Oram Press, 1994), Invented Moralities: Sexual Values in an Age of Uncertainty (New York: Columbia University Press, 1995), Against Nature: Essays on History, Sexuality and Identity (London: Rivers Oram Press, 1995), Making Sexual History (London: Polity Press, 2000), and (with Ken Plummer), The Making of the Modern Homosexual (London: Hutchinson, 1981). 22 Eric Hobsbawm, Age of Extremes: A History of the World 1914-1991 (New York: Pantheon Books, 1994), 321. 23 Jeffrey Weeks, ‘Sexual Values Revisited’ in Lynne Segal (ed) New Sexual Agendas (New York: New York University Press, 1997), 50. 24 Frank Mort, ‘Sexuality: Regulation and Contestation’, 38-39.

In contrast to the standard tales that would celebrate Wolfenden and the permissive state for its freedom, the usual simple story of the Victorian state tells of its repression, based on a prurient fear of sex. Jeffrey Weeks and others tie this fear to that of ‘national or imperial decline at the end of the 19th century’,25 and imperial anxieties are linked back to repression. For example,

Nickie Roberts identifies the late Victorian state as overly interested in patrolling sex, as committed to outlawing all but marital sex, and as best summed up by the Criminal Law

Amendment Act 1885. Roberts credits the Act and its feminist and social-hygiene motivated supporters with a ‘new wave of repression’, in the aftermath of which ‘nearly every major city in Britain swung into action, closing down lodging-houses and brothels, and prosecuting whores when they subsequently took to the streets’.26 It sounds repressive. And this account seems to

suggest a particular anti-sex interest (fascination) of the state.

Today, debates over sex and the state tend to concern whether the state has gone far enough in

its evolution from Victoria (or in a few cases, whether it has gone too far). Academic and

popular debates over Brown are typically framed in this paradigm. For Jeffrey Weeks, in the

1990s it was clear ‘that the loosening of the bonds of sexual authoritarianism associated with

the 1960s was continuing, even accelerating, despite haphazard attempts at moral

rearmament’.27 This story is conventional. It conforms to the linear narrative model of practising history that embodies aspirational values of modern development and of increased self- determination and agency on the part of the individual. In this orthodox view, Brown is seen as a hiccough in inevitable progress, or perhaps as a warning that we are being coerced back into politically conservative moralism. In the orthodox view, Victoria is the enemy.

25 Ibid, 45. 26 Nickie Roberts, Whores In History: Prostitution in Western Society (London: Harper Collins, 1992), 253. Roberts has worked as a stripper and is a leading example of the prostitutes’ rights movement.

The Victorian foil and revisions in history: a necessary component of the permissive mythology

Like all good enemies, she is mythologised, and Foucault’s observation that we tend to think of the present as the moment of ‘greatest perfection’ is pertinent to an analysis of this relationship between sex and the modern state. The judicial direction in Brown to the Wolfenden Report and the Victorian patriarchs feels familiar. It is neither a radical nor a new proposal to study these two periods. Each moment of the ‘greatest perfection’ has its foil by which to be measured, and the Victorian era has long been examined in hope of showing our difference from it. Since the

1960s there has been an ‘explosion of interest’ in the history of sexuality,28 that has created the

notion of ‘progressive sexual modernity around a break with the Victorian past’,29where

Victorianism is understood as repression from which the 20th century liberated itself. And thus, the myths of the state dependent on the Victorian foil have been repeated and invigorated in historical and popular discourse. Lucy Bland and Frank Mort note that the teleological narrative of sex, the state and ‘social advancement’ began in the early 20th century, spurred by Freud’s theses on the mechanisms of repression, and aided by the social impact of the war.30 However, the chronology of sexual modernity was ‘expanded and consolidated’ during the revival of interest in Victorianism in the 1960s and 1970s:

Once again the repressive Victorians were a necessary foil for contemporary sexual progressivism. This binary imagery gave meaning to a wide variety of contemporary debates. Politicians and pressure groups, intent on securing the passage of reforming legislation in the 1960s, frequently advanced their arguments via a modernising logic….The remnants of the “Victorian Era” were part of the cultural debris which needed sweeping away in the interests of a more efficient and a more tolerant society.31

The binary foil facilitated the proliferation of progressivist sexual histories in the 20th century

that position the author and the reader as voyeurs, ‘uncovering a dark secret’ of Victorian sex

and sexuality that had long been buried.32 Within such histories, the dark secret of Victoria is

27 Jeffrey Weeks, ‘Sexual Values Revisited’, 50. My emphasis. 28 Lucy Bland and Frank Mort, ‘Thinking Sex Historically’, 17. 29 Ibid, 18. 30 Ibid. 31 Ibid. 32 Ibid, 20.

positioned against the familiar modern jewels of ‘liberation, emancipation, freedom, disinhibition and hostility to taboos and censorship’ that we cherish.33 This is the legacy within which we navigate our contemporary understandings of the modern state. We have inherited not only the state apparatus but also its mythologies, the stories and the histories that negotiate the presence of the state in our lives and in our political analyses.

Bland and Mort credit Michel Foucault among others, with having initiated a problematisation of the conventional story of the foil, by instigating an important break with the ‘progressive chronology of sexual modernity’, along with the ‘problematisation of the very meaning and status of the category of sexuality, both as an object of social investigation and as an issue for historical research’.34 And yet Foucault’s dismissal of teleology in favour of embracing

disjunction has not ‘solved the problem’ of sexual history. Mort and Bland identify what they

call a new ‘love affair’ within the practices of histories of sex sparked by Foucault’s novel

treatise The History of Sexuality:35 an affair that privileges individual moments of experience

over grand master narratives of social movement and thus lends itself to the incorporation of the

authors’ own personal incidents and hopes.

Here I want to do something different from simply propagating the myths of the Victorian foil,

or of a love-affair with sexual history. In 1985 Carol Stearns and Peter Stearns inquired of

Victorian sexuality, ‘can historians do it better?’.36 They identify, from 1980 onwards in

particular, a revisionist movement within history that re-interrogated the traditional 20th century presumptions about the Victorians as ‘almost entirely repressive and repressed’.37 For Stearns

33 Ibid. 34 Ibid, 21-22. 35 Ibid. 36 Carol Z Stearns & Peter N Stearns, Victorian Sexuality: Can Historians Do It Better?’ (1984-1985) Journal of Social History, XVIII’, 625. 37 Ibid. The importance of this revision is generally noted uncontroversially; according to Stearns and Stearns, for the most part the ‘response of the historical community to this revisionist view has been favourable’(1985: 625). Its importance is particularly apparent in regard to the sexual history of Victorian women, who in the 1980 Mosher Report were even described as ‘often orgasmic’ (Stearns & Stearns: 1985: 625). Other writers have identified the important work that lesbian and feminist historians

and Stearns, the most useful outcome of the revision of histories of Victorian sexuality has been the correction of some ‘exaggerations’, which in turn has revealed the possibility that

Victorianism was ‘partly invented in order to make 20th century sexual achievements look good’.38 I am interested in examining in terms of the state what today’s sexual ‘achievements’ actually do look like. The history of Victorian sexuality can be done better. Both Bland and

Mort, and Stearns and Stearns, have illuminated much of the recent fascination with constructing the foil of Victoria as interested in conversely promoting an image of our time as liberated and evolved. However the status quo in such analyses has tended to represent the sexual climate, sexual mores and sexual practices (and sometimes, sexual identities). I want to perform a similar illumination in terms of the state.

Theorising the modern state

To attempt to do history better, as challenged by Stearns and Stearns, I focus on the overlooked consistency of the modern state’s approach to sex – the continuity between the 1880s and the

1960s glimpsed in Brown. Despite the ‘explosion’ of interest in theorising sex and sexuality over the past 25 years, the state has remained relatively neglected. While the discourse of historicising Victorian sexuality and sex itself has been interrogated, re-assessed and re-framed, such as in the work of Foucault, the state has been overlooked in many ways. The modern state by way of the ‘rule of law has occupied a central place in the construction and regulation of sexual and moral definitions – as much as it has in the sphere of capital-labour relations’.39 Its

relationship with sex warrants attention equal to its relationship with capital.

have undertaken in previously neglected research on the sexual lives of women (Bland & Mort in Segal: 1997: 21). Moreover, revisionism has identified that the traditional thesis of Victorian Puritanism had ‘never described mainstream working class sexuality during most of the 19th century, and indeed [revisionism] was partly directed at some fairly accurate perceptions of working class indulgence in premarital sex and rising rates (until 1870) of illegitimacy’ (Stearns & Stearns: 1985: 625). 38 Ibid, 627. 39 Rachel Harrison and Frank Mort, ‘Patriarchal Aspects of 19th Century State Formation’, in Patrick Corrigan (ed) Capitalism, State Formation and Marxist Theory (London: Quartet Books, 1980), 82. For Suzanne Franzway et al, the connection of the state with gender relations, is in fact ‘more intimate and

I am aware of the theoretical problems involved in an analysis or description of ‘the state’, particularly across jurisdictions and historical periods as I employ the term, but also more generally. Famously, Catharine MacKinnon has identified feminism as having ‘no theory of the state’.40 Marxist theory, in its classical emphasis on economics, has also been identified as lacking a coherent or systematic theory of the state.41 However, in both traditions (and others), it

still makes sense to speak of ‘the state’.42 And I would argue that in my emphasis on law,

Parliament, the judiciary and the bureaucracy, it makes particular sense to speak of ‘the modern

state’ here, because these institutions are housed in and connected via precedent, tradition and

inheritance. In this thesis I identify the modern state as an ‘impersonal, formally class-neutral,

public authority with a constitutionalised monopoly of violence’.43 The modern state is a

‘structure of power, persisting over time, technically an institutionalisation of power relations’,44 a ‘system of political domination’.45 And I identify law, Parliament, the judiciary and the

bureaucracy as predicates of the modern state and its interests in such power. Focusing on law

in my assessment of this ‘structure of power’, I am able to speak of the state trans-historically,

where elsewhere this might appear anachronistic or theoretically inaccurate.46 It is my argument

that the ‘Victorian state’ and the ‘permissive state’ have similar and related interests in sex, and

that both states have similar and related objectives in these interests. This is not to suggest that

these two complicated political apparatuses are the same in any pure sense, but it is to argue that

fundamental than is the state’s connection with class relations in traditionalist socialist theory’ (1989: 7. Original emphasis). 40 Suzanne Franzway , Dianne Court & RW Connell, Staking a Claim: Feminism, Bureaucracy and the State (Sydney: Allen & Unwin, 1989), 27. A comprehensive theory of the state is beyond the scope of this thesis. I work amid the modern milieu of feminist (and therefore Marxist) theory. 41 Bob Jessop, State Theory: Putting the Capitalist State in its Place (London: Polity Press, 1990), 25. 42 Carole Pateman goes as far as to argue that the development of the modern ‘liberal state was itself underpinned by a new form of patriarchy in civil society developing in the 17th and 18th centuries (Connell: 1987: 128). My own analysis does not concern the state prior to the mid 19th century. 43 Bob Jessop, State Theory: Putting the Capitalist State in its Place, 13. 44 Suzanne Franzway et al., Staking a Claim: Feminism, Bureaucracy and the State, 37. 45 Bob Jessop, State Theory: Putting the Capitalist State in its Place,45. I am in agreement with Bob Connell about the productive nature of this power, that ‘power in the state is strategic because there is more at issue than a simple distribution of benefits. The state has a constitutive role in forming and reforming social patterns’ (1987: 30). 46 I acknowledge the stipulation of Suzanne Franzway et al that a theory of the state ‘must recognise at a fundamental level the historicity of the social processes that constitute and reconstitute the state’ (1989: 37).

examining law in particular as a predicate of the modern state’s interests and objectives provides compelling evidence of these consistent (related, similar) interests. Both the Victorian state and the permissive state are incarnations of the modern state. And, as my analysis reveals, the objects of the modern state in regard to sex have remained remarkably consistent throughout these two periods in time.

Law might not always prove appropriate to trans-historical analyses. However, particularly since the rise of Parliamentary democracy (and the industrial revolution), our legal tradition has performed a remarkably smooth transition from the 19th to the 21st centuries, which

simultaneously suggests a consistency in state interests, and a hegemonic and flexible nature of

law (and Parliamentary democracy) to bolster and protect a state from capitalist crisis. Law,

then, might be viewed as both a predicate and a hegemonic function of the modern state, as I

illustrate in Section One of this thesis, particularly in regard to the supposed enfranchisement

involved in the decriminalisation of men’s homosexual sex. In terms of a hegemonic function of

the state, law and the rise of the modern legal subject as the ‘universal abstract bearer of all

manner of claims’ whose freedom and equality is enshrined as supposedly coterminous with the

interests of the state, provide compelling artefacts of the modern state, across both history and

jurisdictions within this capitalist tradition.47 Prior to capitalism, law had been limited to ‘certain categories of individuals and their relations in particular spheres’.48 However capitalisation led to the ‘legalisation of all social relations, the birth of the legal subject, the growth of a specialised legal apparatus and the consolidation of law as an organisational principle of the total social order’.49 Today we reside amid the legacy and fortification of this tradition of legal

enfranchisement, consistently perpetuated by the structure I identify loosely as the modern state.

My focus in this thesis is the legal tradition stemming from the consolidating measure of the

English Offences Against the Person Act 1861. Especially since 1861 in England it makes sense

47 Bob Jessop, State Theory: Putting the Capitalist State in its Place, 53. 48 Ibid, 54. 49 Ibid.

to speak of ‘the modern state’, as indicated and characterised by law, because as I illustrate throughout this thesis, the 1861 Act still governs (or informs) much English law today on behalf of the state.50

As both a predicate and a hegemonic function of the state, the consistent use of law within the

modern state itself is also telling for my analysis. In Marxist terms,

The organisation and internal functioning of the state can assume the form of a rational-legal administration in which the bureaucracy appears as an impersonal, neutral institution embodying the general interest and operates according to a hierarchically structured, centrally coordinated system of formal, general, universal and codified rational-legal norms. Indeed, the very possibility of a formally rational administration depends on the absence of open political class domination from the organisation of the state as well as on its economically grounded monopoly of physical repression.51

In my analysis, class domination is not a focus. However, the Marxist analysis provided above is

appropriate and compelling to my own, in its focus of the role of law in presenting the

bureaucracy in particular as necessarily characterised in state discourse as impartial and

representative of the ‘general interest’. This consistent feature of law, therefore the modern state,

allows for an analysis trans-historically within the parameters of the modern legal tradition.

Indeed, I argue and prove within this thesis, that a contemporary analysis of the modern state

requires such an historical investigation that positions the nature and role of the state in terms of

its relationship to, and place within, this tradition. In terms of my own analysis, I scrutinise the

supposed objectivity and general representative nature of the bureaucracy and law for what it

means for sex and therefore gender (rather than class in the Marxist sense).52 In this thesis I

50 In Chapter Eight in my discussion of the history of modern prostitution law I briefly refer to an Australian trial and a New Zealand trial, because of the significance of these trials internationally (as well as locally). Again, just as I argue that a focus on law especially avails my analysis of the ‘modern state’ to trans-historical application, I would argue that in their modelling of their state apparatus, and particularly law, on an English model, the colonial states of Australia and New Zealand might be (should be) understood as related to, or similar in interests and objectives to, the British state. This is not to dismiss the different dynamics of colonial states from Britain, especially concerning their engagements with indigenous peoples. 51 Bob Jessop, State Theory: Putting the Capitalist State in its Place, 63 52 This is not to suggest that Marxism might be hijacked for feminism with a simplistic transferral of the category ‘class’ to ‘women’. It is to argue that a Marxist analysis of the hegemonic role of law for the state is pertinent to my study in its focus on gender as representing categories of individuals possessing

dispute the supposed objectivity and representative nature of the state as evidenced in its treatment of sex in law, and I illustrate the select and gendered nature of its interests and objectives in regard to sex, which consistently in the modern legal tradition has privileged heterosexual men as subjects of the law.

In my search for the modern sexual subject I am especially looking for evidence of the interests and objectives of the modern state, rather than its effects. The effects of the state’s regulation of sexuality and sex have been well documented. For example, in the first volume of the History of

Sexuality Foucault explores the 19th century creation of the homosexual identity and the proliferation of recognised ‘perversities’, stemming from the focus and ideas of the state and the medical/psychiatric establishment.53 In The Other Victorians Stephen Marcus documents what

has been called the ‘dirty underside of repression’,54 the flourishing of pornography as an effect of the state’s assault on sexual expression.55 Ronald Pearsall in his salacious 1969 tale, The

Worm in the Bud, identifies the hypocrisy that accompanied a furtive Victorian sex life.56 Such works argue for a repressive intention on the part of the state, if they address its intention at all.

However, this intention has not been explored adequately. The state itself has been under- examined and especially in regard to sex its history remains, I argue, the prisoner of assumptions that have been imputed from analyses of its effects.

group interests. The role of law in bolstering and perpetuating a state by way of mythologies of rationality, objectivity and equal representation is an appropriate focus for my analysis in terms of gender, just as it is for an analysis in terms of class. The theoretical connections and possibilities between feminism and Marxism (both broadly understood) are discussed by Suzanne Franzway et al. who note that ‘class and patriarchy are not logical alternatives. They are social structures of different kinds which are both present in the same situations. What is needed is not an either/or choice but a better understanding of the connections. It is clear that this requires a major restructuring of received theories of class and state’ (1989: 23). This restructuring is beyond the scope of my research. 53 Michel Foucault, The History of Sexuality Volume One: An Introduction, Translated by Robert Hurley (New York: Vintage Books, 1980), 42. 54 Carol Z Stearns & Peter N Stearns ‘Victorian Sexuality: Can Historians Do It Better?’, 625. 55 Stephen Marcus, The Other Victorians: A Study of Sexuality and Pornography in Mid-Nineteenth Century England (London: Corgi Books, 1969). 56 Ronald Pearsall, The Worm in the Bud: The World of Victorian Sexuality (London: Sutton, 2003).

Similarly, traditional analyses of the permissive state see the state itself as marginal, and as an effect or a result in itself. Eric Hobsbawm, for example, views the permissive society as a

‘triumph of the individual over society’.57 The state merely responded to this triumph, belatedly, with coterminous legislation: the law recognised rather than created the new climate of sexual relaxation.58 For Jeffrey Weeks, the state’s collapse in the form of its 1960s retreat from legislating ‘morality’ was an inevitable by-product of the telos of capitalism.59 Again, the novel permissive state was merely a response to an economic phenomenon. In both these cases, and in

others, the trend in understanding the modern state in relation to sex has been to infer its

intention from its effects.60

Particularly when addressing the permissive state, I do not dismiss the role of Hobsbawm’s individual, and Weeks’s capitalist economy, in affecting change. However, with regard to the

‘demands of the individual’ I cannot identify sufficient evidence that this was the primary (or even an especially important) agent of change. Therefore, I want to scrutinise and put in question the standard interpretation of the state’s intention, rather than focus on these two already canvassed factors of the individual citizen and the capitalist economy. In both the

Victorian era and the permissive state I detect a lack of detailed focus on the state in itself, particularly in terms of legislation, Parliament, the judiciary and the bureaucracy, which together form my focus.

Embodiments of the age and the power of individuals’ mythologies of the state

In this thesis I emphasise the accidents, the contrary engagements of various individuals who have contributed significantly to our inheritance of the modern state’s approach to sex. I

57Eric Hobsbawm, Age Of Extremes: A History of the World 1914-1991, 334. 58 Ibid, 323. 59 Jeffrey Weeks, Coming Out, 156. 60 David Halperin, in his hagiography of Foucault praises Foucault’s novel critique of ‘liberal power’: that in the ‘liberated’ 20th century, especially since the 1960s and 1970s, ‘sexual liberation may have liberated our sexuality, but it has not liberated us from our sexuality, if anything it has enslaved us more profoundly to it’ (1995: 20). However this analysis does not concern the intent or object of the state.

introduce characters such as Fitzjames Stephen, John Wolfenden, Leo Abse and Sir David

Maxwell Fyfe, to indicate the incidental core of this relationship along with the ‘petty malice’ of our law and policy. I am aware of the problems that highlighting the roles of individuals presents for a theory or study of the state. In this regard, I am guided by the advice of Rachel

Harrison and Frank Mort that a theory of the state must acknowledge and accommodate

‘contestation and struggle’ within its own parameters.61 The state, they argue, ‘should be seen not as a monolithic and unified “subject” but as a differentiated set of practices and institutions which at specific historical moments may stand in contradiction or opposition’.62 In their own study of the 19th century patriarchal state, Harrison and Mort embrace these difficulties with the

observation that

All the legislation dealt with….was affected by specific determinations relating to the administrative apparatuses of the State. Political changes in the Parliamentary arena, the emergence of key individual figures, press debates etc., all had significant influence on the passage of a bill through the legislative machinery.63

Men do make law.64

Individuality, instead of just appearing in history ‘only now and then in the shape of the accident or contingent, is just that out of which history is made’.65 However, while accommodating individual personalities and agendas, I also present the overall consistent approach of the modern state in its engagement with sex, and unravel the myths in which the

61 Rachel Harrison and Frank Mort, ‘Patriarchal Aspects of 19th Century State Formation’, 82. 62 Ibid. 63 Ibid, 102. 64 Suzanne Franzway et al. warn that ‘if the state embodies the interests of men, not all states do it in the same way, or to the same extent’. Therefore, ‘we must reckon with a balance of forces rather than a unitary patriarch’ (1989: 28-29). Similarly, for Bob Connell, ‘the internal complexity of the state is now well recognised in class theory and is actually important in relation to gender. Actual states are by no means consistent with their processing of gender issues. Some of this is mere incoherence, to be expected from the sheer complexity of the state as a set of instrumentalities. But some is real contradiction’ (1987: 129). It may be debated whether the state is constituted of individuals’ interests, or rather, if it represents the interests of individuals. For a classic debate over the nature of the state in terms of the individuals who represent and implement its agenda, see the debates between Nicos Poulantzas and Ralph Miliband in Robin Blackburn (ed) Ideology in Social Science: readings in Critical Social Theory (Glasgow: Williams Collins Sons and Co Ltd, 1975). 65 RG Collingwood, The Idea of History (London: Oxford University Press, 1951), 150.

modern state is shrouded. Although there are inconsistencies with how actual individual states and political apparatuses address sex (relatively and internal to their individual approaches), as my analysis reveals, there also prevails a general consistency in object of the modern state. I do not provide a theory of the state, or stipulate its nature. Rather, I examine predicates of the modern state, especially in terms of law and the bureaucracy, to reveal the interests and objects

of the modern state over time.

Addressing the relationship of the state to sex teaches a lesson in political analysis. This

concerns the power of myth making within the state, and within the academic literature that

represents it. As is Claude Levi Strauss, I am ‘concerned here with the death of myths, not in

time, but in space. We know that myths transform themselves’.66 Roland Barthes has noted the

ways in which mythologies operate to transform history into ‘nature’ by way of language:

The world enters language as a dialectical relation between activities, between human actions; it come out of myth as a harmonious display of essences. A conjuring trick has taken place; it has turned reality inside out, it has emptied it of history and has filled it with nature, it has removed from things their human meaning so as to make them signify a human insignificance. The function of myth is to empty reality: it is, literally, a ceaseless flowing out, a haemorrhage, or perhaps an evaporation, in short and perceptible absence.67

Here, I want to resuscitate reality. Since myth robs language of something, ‘why not rob myth?’, as challenged by Barthes.68 In ‘getting to the bottom’ of the objects of the state I have

had to rob the state of its own mythologies: to evaluate and transcend the mythology of the

tolerance of the permissive state in contrast to the necessarily repressive intent of the Victorian

state, which have infiltrated popular and academic consciousness. Men not only make law; they

also make mythologies. More alarming than tales and mythologies of the state reproduced

uncritically is the interrelationship between mythology and law that I have identified in my

study. In ‘getting to the bottom’ of the state’s approach to sex I explore important mythologies

66 Claude Levi-Strauss in Robert Young (ed), Unifying the Text: A Post-structuralist Reader (Boston: Routledge & Keegan Paul, 1981), 1. 67 Roland Barthes, Mythologies (London: Vintage, 2000), 142-143. 68 Ibid, 135.

that have not only informed law, but have constituted law. For example, that rape in marriage is not a crime, and that heterosexual prostitution is an inevitable product of women’s promiscuity.

The ‘accidental beginnings’ and the ‘petty malice’ that inform the modern state’s approach to sex are very much the product of individual mythologies repeated so often as rarely to be questioned. The ‘point’ of this thesis is twofold: first to ascertain the object of the state’s modern approach to sex, and second to reveal and thereby debunk, the contemporary mythologies.

Methodology, limits, of the thesis

While in this thesis I emphasise consistency and sameness, I do not advocate an anachronistic analysis of ‘we the new Victorians’, or ‘they who were really just like us’. This thesis is not concerned with positioning ‘us’ in relation to the sexual practices of ‘them’. It is concerned with the state. In emphasising sameness and consistency, I do not dismiss the well-regarded bulk of literature on difference concerning sex and sexuality between these two periods in history.

However, in regard to the state, I suggest that a comprehensive analysis of its intentions and interests concerning sex should not be diverted by sociological and political analyses of the difference of sexual practices and sexual identities. I am analysing the state, not sexual practices.

I acknowledge that this seems like an artificial distinction: between the state’s regulation of sex, and the practices it seeks to regulate. And indeed, it seems like an erroneous distinction for my stated purposes, because an analysis of the state’s relationship to sex must be concerned with its effects on and construction of sex. However, I use this artificial distinction to enable my analysis to focus unwaveringly on the state itself.

Although not a search for origins, my thesis does involve a search for the object of the state in addressing sex through legislation, Parliament and the judiciary.69 My work is not a history in

69 Suzanne Franzway et al. warn that there are ‘problems in all theorising about “origins”. An emphasis on origin can imply that nothing much has changed since the origin, that history is simply divided into a “before” and an “after”. Even when continuing change is allowed, it has to be said that the history of

the Classical sense that Foucault describes above, of a transcendent totality, but is rather a political analysis, a history of the present driven by genealogy, in which I am driven to

comprehend the past in order to understand a contemporary situation. In making this

comprehension I acknowledge that the past cannot be separated from the present, that the

present itself needs to be ‘conceived historically as the product of an interesting set of

genealogies which have been unstably yoked together’.70 The contemporary invocations in

Brown of both Wolfenden and the Victorian patriarchs of the Queen’s Bench indicate that the distinction – of past and present – is artificial when applied to the practice of law defined by genealogy and precedent. Thus I think I am not ‘murdering history’ so much as decapitating the

current King of the status quo.

Foucault writes that ‘genealogy is grey, meticulous and patiently documentary. It operates on a

field of entangled and confused parchments, on documents that have been scratched over and

recopied many times’.71 My thesis is a political analysis that incorporates genealogy in its focus on law as indicative of the state. Law is precedent. Precedent is genealogy. My thesis incorporates a detailed study of primary artefacts of the state. I present detailed analyses of seemingly discontinuous moments: individual court cases, individual Committees, individual treatises and opinions. I employ ‘thick description’,72 to unearth the static continuity within

these moments. I make use of political memoirs as well as academic political, sociological and

historical analyses. These artefacts, together with the academic products that so far have

brought them to protracted life, constitute the ‘entangled and confused parchments’ of my study: they represent the pantheon of men responsible for the sexual myths and practices of the modern state. They represent the state itself.

gender relations for the whole sweep of human history up to the last 400 years is very little understood (1989: 36). 70 Lucy Bland and Frank Mort, ‘Thinking Sex Historically’, 18. 71 Michel Foucault, ‘Neitzsche, Genealogy, History’, 369. 72 Clifford Geertz, The Interpretation of Cultures: Selected Essays (New York: Basic Books Inc, 1973), 6.

My work is interdisciplinary. I make use of the tools of politics, history, law and philosophy.

Despite appearing to employ history in particular, my conclusions are not historical, in the sense of describing ‘what happened’. My conclusions are more broadly theoretical. Foucault writes of the ‘history of the present’, written not because we are simply interested in the past, but as a means to comprehend the present.73 My thesis is a history only in terms of the present. The

limits of my thesis are largely directed by the state itself. For example, I do not explicitly

address lesbian sex. Notoriously, lesbianism is ‘invisible’ in law, and before the state.74 The homosexual subject is male. The subject produced by the Sexual Offences Act 1967 is a male

‘genital body that is always already sexed and gendered’.75 The reasons for the invisibility of lesbianism in law, and its meaning, pose important theoretical and political concerns. However my study is limited in its focus on what the state says, explicitly. Perhaps what it does not say is an equally compelling and overlooked research question. But it is beyond the scope of my research.76

Similarly, in claiming to address ‘sex’, I might be seen to fall into the trap of conflating men’s

homosexual sex with heterosexual sex, and even more bizarrely, women’s heterosexual

prostitution with men’s homosexual sex. This conflation is most starkly the product and method

of the Wolfenden Report, which sought simultaneously to ‘investigate’ men’s homosexual sex

and women’s street prostitution as a form of heterosexual promiscuity.77 I do not avoid this trap

unwittingly. Politically I acknowledge the profoundly different concerns raised by these

73 Michel Foucault, Discipline and Punish: the Birth of the Prison, Translated by Alan Sheridan (Harmondsworth: Penguin, 1979), 31. 74 The female homosexual body is invisible in law despite attempts to have lesbian sex made criminal by way of the Criminal Law Amendment Bill 1920. Laura Doan details the aborted Bill 1920, in ‘Acts of Female Indecency: Sexology’s Intervention in Legislating Lesbianism’ (Bland & Doan: 1998: 199-213). Although women’s sex with each other does not appear in criminal codes I acknowledge that it has been used as a category of persecution and control by the state in the paradigm of ‘deviancy’ implemented particularly by psychiatry and medical discourse. 75 Leslie J Moran, Moran, The Homosexual(ity) of Law (London: Routledge, 1996), 96. 76 I would like to have paid more attention to the passage of The Abortion Act 1967 in this thesis. However in parliament the Abortion Act was understood more in terms of the medical profession than sex, or even women (Sheldon: 1997). The Abortion Act warrants a thesis of its own, as does the impact of HIV/AIDS.

categories, particularly concerning women’s prostitution. However my representation and duplication of the state’s own definitions and conflations is purposeful: such a conflation is revealing of the state’s object and understanding with regard to sex. I apply the conclusions of

Wolfenden to sex in general. Although ostensibly the Report ‘only’ deals with men’s homosexual sex and women’s heterosexual prostitution, I infer its conclusions more generally.

This is particularly related to the Report’s assumption (which I reject) that heterosexual prostitution is promiscuity inevitably driven by women. My invocation of the state’s mythology about the very nature of sex – that women’s prostitution is similar or related to men’s homosexual sex – is important in my strategy of unveiling these very myths.

I pay little attention to much of the practical apparatus that enforces the state’s regime, particularly policing. My focus in this regard is the judiciary. I am not concerned with the effects of the state’s regulation of sex, so much as its approach. I implement the distinction used by Rachel Harrison and Frank Mort when they concentrate on ‘the way in which the legislative processes of the State construct and articulate particular sets of patriarchal relations, rather than on the affectivity of that legislation as it is implemented and “lived” within specific practices and institutions’.78 In this thesis I use the terms homosexuality and prostitution where elsewhere

I might use the terms gay (gayness?) and sex-work. I try to maintain consistency with the

historical legislation to which I refer. I also address prostitution as a gendered transaction (that

is, a relationship in which men buy something from women), consistent with historical

legislation.

Thesis outline/structure

The direction within the House of Lords’ judgment first to the Wolfenden Report of 1957 and

second to the 1880s Queen’s Bench has led me to ‘work backwards’ in terms of chronology,

77 For the Wolfenden Committee prostitution was a problem of women, not men. The Committee did not concern itself with the men of prostitution, neither male prostitutes, pimps nor clients. 78 Rachel Harrison and Frank Mort, ‘Patriarchal Aspects of 19th Century State Formation’, 82.

starting with the present, looking to the past that has informed it. To facilitate my investigation, the thesis is divided into two sections each with a short introduction before the chapters are presented. The first section mainly concerns the 1950s/1960s state, and the second mainly concerns the 1880s and late Victorian state. I don’t pretend this is an easy or natural distinction, that there ever was a discrete 1880s or a 1960s in any cultural or political sense. But as I have explained, the binary foil of the 1880s and the 1960s is well established and is helpful for matters of simplicity in structure. I make use of historical tools there for the taking.

Although Brown is not my focus for research, I pay detailed attention to the trials in my introduction to Section One. Brown captures the battle of progress, between the old and the new state, perfectly. Therefore, throughout the thesis I hark back to Brown, to help frame my argument about the supposed ‘evolution’ of the state, from old to new, from repression and regulation to liberation and enfranchisement. I briefly outline the details of Brown, the circumstances of the police investigation, the evidence and the ratio of the various stages of adjudication, with particular attention paid the House of Lords’ judgment in 1993. This discussion by the Lords, in its focus on the supposed evolution of the modern state, frames my overall argument in the thesis and introduces the common themes of popular debates over the interest of the state in sex. After introducing these themes I then move onto my exploration of the ‘new’ state, as typified by the states of 1950s and 1960s Britain to see if the popular ideas about the modern state and sex do in fact bear scrutiny.

In Chapter One I introduce the great myths of the permissive state in general, beyond the scope of sex. Before I delve into the Wolfenden Report and its legislative outcomes, I first present the broader political climate in which English sex law reform was enacted and briefly discuss the

‘legislation of consent’ of this period, such as that concerning suicide and capital punishment. I describe the usual stories of the permissive state and the status quo: that the permissive state was a response to the demands of a permissive society. In this brief introductory chapter I

merely set the scene for my following discussion of the Wolfenden Report, the Street Offences

Act 1959 and the Sexual Offences Act 1967.

In Chapter Two I examine the Wolfenden Report in detail to see what it actually says about the state’s interest in sex. I present Cabinet documents, archival research and press reports to explain the motivation of the state in initiating the ‘investigation’ of the Wolfenden Committee.

I highlight the punitive intentions of the Committe for women who work as prostitutes and how, ironically, the Wolfenden Report has come to be interpreted as concerned with the freedom of individuals. Along with what the Wolfenden Report means for the state, I also note the ways in which its mythology concerning freedom has been integrated into academic and common discourse on the nature of prostitution and privacy. In particular, I investigate the common claim that the Wolfenden Report may be understood as part of a program of reform motivated by ideals of the ideology of liberalism, and illustrate the holes in the simplistic theory that would posit 1960s sex law reform as purely, or simply, related to ‘liberalism’. My engagement with the debates over ‘liberalism’ allows me to present my own argument that the Wolfenden

Report (and subsequent legislation) was concerned with the control of sex, rather than its freedom.

Having identified the objectives and intentions of the state for Wolfenden, next I move onto the popular mythologies that have shrouded the Committee and the Report, especially concerning moral panics over men’s homosexual sex and women’s prostitution. In Chapter Three I scrutinise the standard mythology of the Wolfenden Committee, that its inception was motivated by a great public moral panic over men’s homosexuality. I question whether we ever did panic over sex in the ways it has been suggested by the state, and I present evidence that this supposed panic has been invented by the state and exaggerated within academia, to justify the

Wolfenden Report and its subsequent legislation. Similarly in Chapter Four I investigate the twin orthodox myth, that Wolfenden was a welcome response to a general moral panic over

women’s street prostitution. Rather than accept these myths, as has been the tradition of academic attention paid Wolfenden, again through the use of archival research, I emphasise resistance to the Wolfenden recommendations for prostitution: resistance broadly by women and within the House of Lords. I illustrate a manipulation by the state of mythology concerning

public demand over women’s prostitution.

In Chapter Five I move onto an examination of the widely celebrated product of the Wolfenden

Report – the Sexual Offences Act 1967. I analyse in detail the passage of the Act, focusing particularly on the role of MP Leo Abse in securing homosexual law reform. I scrutinise the Act as one great artefact of the permissive state, highlighting the sentiment of pity (and disgust) that was invoked to secure legal reforms, which were aimed not at emancipation, freedom or even equality for homosexual men. I focus on the special privacy clause of the Sexual Offences Act to illustrate the agenda of the modern state in regard to men’s homosexual sex, which I identify as aimed in theory at control, and in practice at persecution of homosexual men.

In Section Two I turn to the state of the late Victorian period in England to discern its interest

and object in regard to sex. In the introduction to Section Two I briefly explain the direction in

Brown to the authority of the 1888 Queen’s Bench trial of Clarence, and the legal history of the

marital rape exemption, which Clarence informs. Having explained the importance of Clarence

(to Brown, and to contemporary sex law in general) in this section I then move on to a detailed exploration of the judgment. As directed by Lord Mustill in Brown I take Clarence to be a great artefact of the state in terms of sex, of a magnitude and importance similar to Wolfenden.

In Chapter Six I explore the work of Sir James Fitzjames Stephen, who formed the judgment of

Clarence. I want to ascertain what support Lord Mustill found in the Queen’s Bench of 1888 for the upholding of modern sexual privacy rights. First I introduce Stephen, to explain the ways in which he understood the nature and purpose of sex, and then move onto the trial of Clarence,

the circumstances of the case, and finally an elaboration of the views of Stephen, on sex, morality and the criminal law. In contrast to Stephen, I point to the work of John Stuart Mill in the same period in history, to illustrate that although views of the late Victorian ruling class were publicly contested, the state itself acted purposefully to secure the interests of heterosexual men in sex law, to the detriment of women.

In Chapter Seven I examine the Queen’s Bench trial more closely, its decision and its legal legacy, to transcend the standard permissive rhetoric of Victorian repression and determine what Clarence actually says about sex and the nature of sexual harm. I explain the arguments of defence counsel and the members of the Bench in creating the marital rape exemption, and I examine in contrast the Bench’s approach to violence, in this same period. To convict for the assault of SM in Brown, the judges relied on the 1882 judgment of Fitzjames Stephen in Coney.

Here I also examine the judgment in Coney to show the different ways in which ‘real harm’ (of men) is understood by the state, in contrast to women’s claims of sexual harm. Here I illustrate the underlying Victorian philosophy concerning consent, the individual and bodily integrity that was upheld in Brown, and therefore which today informs the state’s interest in sex (and assault).

In Chapter Eight I turn to prostitution and its treatment in law, as directed by the judges in

Clarence. I focus on two main inroads of the state into commercial sex: the creation of the common prostitute, and the evolution throughout the 19th and early 20th century of a judicial definition of ‘what is a prostitute? In tracing the genealogy of prostitution law I determine the state’s interest in prostitution to illustrate that the Wolfenden approach involves no permissive shift, but is simply a re-configuration of the old.

As I explain in the preface, in this thesis I want to test the myth about progress, evolution and the distance we have travelled from Victoria. In my search for the sexual subject of the 1880s and the 1960s, I have excavated an unanticipated consistency. Rather than a model either of

smooth if sometimes stilted linear progress, or even a story of dramatic change and disjointed rupture in the permissive ‘revolution’ of the state’s approach to sex, I identify a consistent ethos

and approach of the state. The ‘permissive state’ is the redeployment of the state of the

Victorian patriarch. In my Conclusion to this thesis I briefly note what it means to be living

within the legacy of the permissive state, therefore within the legacy of Victoria, using

examples of contemporary case law and government policy and legislation concerning sex to

illustrate this point. I do not provide an in depth analysis of more recent judgments, law and

policy, but simply use them as examples. I return to Brown and the present to show how the success of the permissive mythology has been so effective, that even the Victorian arguments of

Lord Mustill are routinely championed as permissive and progressive. I illustrate the continued and highly influential mythology of Wolfenden as a story of freedom and tolerance, despite the punitive and controlling agenda of the Report.

Foucault’s advice that historical beginnings are ‘lowly’, not in the sense of ‘modest or discreet, like the steps of a dove, but derisive and ironic, capable of undoing every infatuation’.79 The big break, the discontinuity of the 1960s, that often is described as ‘revolutionary’ (and inevitable in the teleology of progress),80 is a re-configuration of the same object as the Victorian state. The

permissive state enacts the latest stage in the great Victorian project of embodying the sexual

subject – a subject at once embodied and created as an object of control. The essence of the

79 Michel Foucault, ‘Neitzsche, Genealogy, History’, 372. 80 For example see Eric Hobsbawm, Age of Extremes: A History of the World 1914-1991, 320-343 and Jeffrey Weeks, Coming Out: Homosexual Politics in Britain, from the Nineteenth Century to the Present (London: Quartet Books, 1977), 156.

permissive state is that it has no discrete essence; its essence is inherited, ‘fabricated in a piecemeal fashion from alien forms’.81

81 Michel Foucault, ‘Neitzsche, Genealogy, History’, 371. Although I agree with Foucault that history has no ‘essence’, I do characterise the modern state as gendered, representing heterosexual men’s interests. However I identify this characteristic as the product of inheritance, particularly in my emphasis on law (which is defined by precedent). To make this distinction between essence and inheritance I am guided in part by the analysis of Bob Connell, that the state is not ‘inherently patriarchal, but is historically constructed as patriarchal in a political process whose outcome is open. The process of bureaucratisation is central, as conventional bureaucracy is a tight fusion of the structure of power and the division of labour. Together with selective recruitment and promotion, these structures form an integrated mechanism of gender relations that results in the exclusion of women from positions of authority and the subordination of the areas o work in which most women are concentrated’ (1987: 129). Again I would reiterate the advice of Foucault that we might ‘laugh at the solemnities of the origin’. It is inheritance, not truth, nor objectivity nor neutrality that informs the modern state.

Section One: The freewheeling 60s and the Modern Sexual Subject

A body is docile that may be subjected, used, transformed and improved. (Michel Foucault 1975)82

Brown: the ‘most important recent event’.83

In late 1987 the Manchester Police came into possession of a home-made video featuring in their terms, men ‘inflicting acts of sexual violence upon each other’.84 Alternatively, the tapes

depicted male SM enthusiasts ‘making love’.85 The discovery led to ‘Operation Spanner’, which

involved a series of dawn raids by the Obscene Publications Squad.86 More than 100 men were

questioned in relation to the matter, and in 1989 16 men were charged with offences ranging

from bestiality and the possession of an indecent photograph of a child, to assault occasioning

actual bodily harm and unlawful wounding. A further 26 men were cautioned.87

The charges were based on the evidence of confiscated video tapes that had been made over a period of approximately 2 years, involving a large group of men meeting for sex since 1978.

The tapes were recorded for their own viewing pleasure to distribute among friends and new participants, and were not commercially produced or sold. The group was informally organised.

Participants came and went, and new members were reached through contact advertisements in local and national papers. The main participants, ‘an inner circle of middle aged men’,88 had

held group nights such as those shown in the tapes for approximately 10 years. It is unclear

82 Michel Foucault, Discipline and Punish: The Birth of the Prison, 136. 83 Leslie J Moran, ‘Violence and the Law: The Case of Sado-Masochism’ (1995) Social and Legal Studies, Vol 4, No, 2, 225. 84 R v Brown (1992) 2 AII ER 552. 85 Anthony Furlong ‘Sado-Masochism and the Law: Consent Versus Paternalism’ Legal Notes No 12 (London: Libertarian Alliance, 1994) sourced at http://www.digiweb.com/igeldard/LA/Legal/sadolaw.txt Anthony Furlong writes prolifically for Libertarian Alliance, which promotes itself as Britain’s ‘most radical free market and civil liberties think tank’. See www.libertarian.co.uk. 86 Richard Green suggests the police operation was named ‘spanner’ because a detective remarked after watching one video that ‘he felt as though someone had tightened a spanner around his nuts’ in ‘(Serious) Sadomasochism: A Protected Right of Privacy?’ (2001) Archives of Sexual Behaviour Vol 30, No 5, 544. Green does not cite his source. 87 Leslie J Moran, ‘Violence and the Law: The Case of Sado-Masochism’ (1995) Social and Legal Studies, Vol 4, No, 2, 225.

how, or why, the police first came into possession of the original tape. In the court transcripts the ‘discovery’ is described as occurring in the course of investigations into an ‘unrelated

matter’. Anthony Furlong suggests that in the search for violent pornography such as snuff

movies, or perhaps child pornography, the police actively sought out the evidence.89

The ‘discovery’ of the original tape led police to the home of Ian Wilkinson and Peter Grindley in Shropshire, outfitted with the ‘spacious and exceptionally fine torture chamber’ featured in the tapes.90 The content of the original home movie is said to have been so violent and shocking

to police that dogs were brought in to search for bodies in the backyard.91 None were found.

According to Furlong, their tape depicted scenes of ‘unimaginable violence and perversion’:

Men were hung up by chains and beaten insensible. Hooks were pushed deep into flesh. One man had a nail hammered through his foreskin. The actors ran about dressed variously as schoolboys and officers in the SS. A dog was sodomised. All this was set to a soundtrack of Gregorian plainchant.92

Roland Jaggard, who featured in the tapes, claims that although it is unclear which tape police

saw first, those subsequently confiscated showed, among other things,

beatings of buttocks, legs, cocks and balls with leather straps, canes nettles etc. Hot wax being dripped onto genitals, torsos, legs etc. Play piercings of tits, scrotums, cock knobs, shafts and foreskins. Genital application of heat (hair driers) and cold (ice cubes). Genital bondage and manipulation etc., ball weights, safe electrical play (adaptation for electrical sexual play, of the muscle toning gear used by health clubs). Scrotal stretching and pinning out with needles etc. Nipple and cock branding.93

88 David Young, ‘15 Men Convicted of Degrading and Vicious Practices’ The Times, 20 December, 1990. 89Anthony Furlong, ‘Reflections on the Case of R v Brown’, Free Life No 18 (Libertarian Alliance, 1993), Sourced at http://freespace.virgin.net/old.whig/f118sado.html 90 Anthony Furlong ‘Sado-Masochism and the Law: Consent Versus Paternalism’. 91 Roland Jaggard, ‘Operation Spanner’ (1997) Spannerman, sourced at http://www.bmezine.com/people/spanner/index.html. 92 Anthony Furlong ‘Sado-Masochism and the Law: Consent Versus Paternalism’. Donald Anderson who was charged with bestiality over his activities involving a dog and a donkey, was found not guilty of this offence based on the video evidence. He was however convicted of keeping a disorderly house (Furlong: 1994). 93 Roland Jaggard, ‘Operation Spanner’.

According to Jaggard, the one tape that caused the defendants ‘lots of trouble’ was that which depicted a ‘slave having his cock and scrotum gently cut with a scalpel’.94

Throughout the course of the police investigation the suspects maintained their activities were

sexual and had been performed with the full consent of all parties involved. The investigation

was lengthy, with two years elapsing between the initial gathering of evidence and the charging

of suspects; it was late 1990 before the defendants were brought to trial. Jaggard suggests that it

was the confusion over the very concept of SM and indeed what was an appropriate charge for

their consensual homosexual activities that caused the delays.95 Charges of gross indecency, which relate to matters of sex, were unable to be laid as the evidence was so dated as to be time barred under the statute.96 Eventually the men were charged with a range of offences, primarily under sections of the Offences Against the Person Act that do not refer explicitly to sex and are not typically applied to acts of a sexual nature.

The men were tried. Judge Rant, after studying the videos, claimed he ‘was not likely to forget - no-one would’.97 He directed that it was ‘unnecessary for the prosecution to prove that the

victim did not consent to the infliction of bodily harm or wounding upon him’.98 Judge Rant

directed that consent is irrelevant to the charge of assault, most importantly, in that it provides

no defence. As the judge possessed the video evidence of the assaults in question, the

defendants pleaded guilty to the charges. Gaol sentences ranged from twelve months to four and

a half years, with one defendant receiving a fine.99 The majority of convictions involved either

94 Ibid. 95 Ibid. 96 R v Brown [1993] 2 AII ER 75 at 83 per Lord Templeman. 97David Young, ‘15 Men Convicted of Degrading and Vicious Practices’. 98 In R v Brown [1992] 2 AII ER 552. 99 Graham Sharp, fined one thousand pounds for sending indecent material through the post (Furlong: 1994).

assault occasioning actual bodily harm or unlawful wounding. Some were also charged with aiding and abetting these crimes.100

Five of the men chose to appeal their convictions, contending that a person ‘could not be guilty of assault occasioning actual bodily harm or wounding in respect to acts carried out in private with the consent of the victim’.101 On 19 February 1992 the appeals of Brown, Laskey, Jaggard,

Lucas and Carter were dismissed. However, Lord Lane in the Court of Appeal did reduce the sentences in light of his belief that the appellants were unaware their activities were criminal.

Lord Lane saw the court’s role as to ‘mark its disapproval of these activities by imposing short terms of immediate imprisonment’, and to warn that in future the argument of ignorance as to the criminal nature of the conduct would not be open to a defendant in similar circumstances.102

The appeal was rejected on the grounds that the activities constituted assault and again that consent is no defence to assault. While Lord Lane did acknowledge that the motivation of the acts placed the offences ‘into a different category from the type of assault with which this court is ordinarily concerned’,103 he upheld the finding that it was appropriate to try the activities

under the assault statute. Consent was a troubling issue however, and Lord Lane allowed further

appeal to the House of Lords on the question: ‘where A wounds or assaults B occasioning him

actual bodily harm in the course of a sado-masochistic encounter, does the prosecution have to

prove lack of consent on the part of B before they can establish A’s guilt under s20 or s47 of the

Offences Against the Person Act 1861?’.104

The Lords answered ‘no’. On 11 March 1993 it was held, by a majority of three to two, that a

person could be convicted of unlawful wounding and assault occasioning actual bodily harm for

committing ‘sado-masochistic acts which inflicted injuries which were neither transient nor

100 John Atkinson was convicted solely of having aided and abetted others to cause injury to himself (Furlong: 1994). 101 R v Brown [1992] 2 AII ER 552. 102 Ibid at 560 per Lord Lane CJ. 103 Ibid.

trifling, notwithstanding that the acts were committed in private, the person on whom the injuries were inflicted consented to the acts and no permanent injury was sustained by the victim’.105 The convictions were upheld on Lord Templeman’s explanation that ‘public policy required that society be protected by criminal sanctions against a cult of violence which contained the danger of the proselytisation and corruption of young men and the potential for serious injury’.106 According to Lord Templeman, the convictions (and prison terms) were necessary: ‘society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised’.107

Turning to Wolfenden: Lords in search of the sexual subject

The Lords in Brown were perplexed as to how to address sado-masochism (SM). The case implicitly involved a search for the modern sexual subject: what are his limits in the law?

Where or when do his interests prevail? The Lords turned to the modern authority on sex and the state – the Wolfenden Report - in search of counsel. The recommendations of the

Wolfenden Committee had led to the Street Offences Act 1959 and the Sexual Offences Act

1967. The Street Offences Act confirms the common law view that prostitution is not a crime, but the act of a common prostitute soliciting in the street for sex is a public offence. But the

104 Ibid. 105 R v Brown [1992] 2 AII ER 552. ‘Transient and trifling’ was upheld as the demarcation for those injuries for which an adult may claim to have legally consented to an assault. It was a standard based on the ruling of R v Donovan [1934] 2 KB 498, one of the few cases cited in Brown to involve sexual gratification. It is generally understood since Brown that one may consent to a common assault, but not to assault occasioning actual bodily harm, or grievous bodily harm, which includes wounding as an offence (Streets: 1993: 234). Of the majority were Lords Templeman, Jauncey and Lowry. In dissent were Lords Mustill and Slynn. 106 R v Brown [1993] 2 AII ER 75. Much has been made of the reference to the corruption of young men. This, combined with Lord Templeman’s citing of Lord Lane’s overt relief in discovering that the one underage participant in the SM had since settled into a normal heterosexual relationship (R v Brown [1993] 2 AII ER 75 at 83) has led to speculation about the homophobic nature of the ruling: this was one basis for the final appeal to the European Court of Human Rights. The ECHR dismissed the allegations of homophobia, ruling that the majority House of Lords’ decision was based not on bias against homosexuals, but ‘on the extreme nature of the practices’ (Laskey, Jaggard and Brown v United Kingdom (21627/93) [1997] ECHR 4). For a further discussion of the homophobic nature of Brown see in particular Carl Stychin ‘Unmanly Diversions: The Construction of The Homosexual Body (Politic) in English Law’ (1994) Osgoode Hall Law Journal Vol, 32, No 3, 503-536. 107 R v Brown [1993] 2 AII ER 75 at 84 per Lord Templeman.

Committee is ‘best remembered’ as the body that recommended the partial decriminalisation of men’s homosexual sex as embodied in the Sexual Offences Act 1967.108

The Wolfenden Committee was understood by Lord Mustill to have produced a ‘thorough review of all the medical, social, moral and political issues’ related to homosexuality and prostitution.109 Yet the sexual SM practitioner is invisible in Wolfenden and therefore in the law. Regrettably for Lord Templeman, the Wolfenden Committee did not address SM and thus the Sexual Offences Act 1967 was of ‘no assistance for present purposes because the present problem was not under consideration’ by the Committee.110 For Lord Jauncey of Tullichettle,

Wolfenden is the authority on sex and the state. Activities beyond the scope of Wolfenden are beyond the scope of legitimate sex:

When Parliament passed the Sexual Offences Act 1967 which made buggery and acts of gross indecency between consenting adults lawful it had available the Report on the Committee on Homosexual Offences and Prostitution (the Wolfenden Report), which was the product of an exhaustive research into the problem.

If it is to be decided that such activities as the nailing by A of B’s foreskin or scrotum to a board or the insertion of hot wax into C’s urethra followed by the burning of his penis with a candle or the incising of D’s scrotum with a scalpel to the effusion of blood are injurious neither to B, C and D nor to the public interest then it is for Parliament with its accumulated wisdom and sources of information to declare them to be lawful.111

The Wolfenden Report and the Sexual Offences Act 1967 stipulate what it is that men do when they have sex together: anal sex or ‘gross indecency’. Gross indecency is undefined in statue.

The Wolfenden Report identified it as having usually taken ‘one of three forms’ and for Lord

Jauncey, none of these forms ‘involved the deliberate infliction of injury’.112 For Lord Jauncey

the men in Brown ‘went far beyond the sort of conduct contemplated by the legislature’ in 1967

108 Frank Mort, ‘Cityscapes: Consumption, Masculinities and the Mapping of Sexual London’, (1998) Urban Studies, Vol 35, No 5-6, May, 889. 109 R v Brown [1993] 2 AII ER 75 at 116 per Lord Mustill. 110 Ibid at 82 per Lord Mustill. 111 Ibid at 92 per Lord Jauncey of Tullichettle. 112 Ibid.

and the Wolfenden Committee.113 The subjects of Brown went ‘far beyond’ what the state

identifies as sex and the activities and identities of the sexual subject.

The subject of SM slips between the legislation of sex and the legislation of assault; he is not to

be found in the law. Thus Brown involved simultaneously a search for and a construction of the

modern sexual subject. Sangeetha Chandra-Shekaren draws on the work of Judith Butler to

point to the ‘productive’ (along with the prohibitive) capacity of judicial discourse.114 Chandra-

Shekaren notes how in the debates over Brown the ‘sadomasochistic homosexual’ is generated rather than merely identified:

“Homosexuality, “sadomasochism” and indeed the “sadomasochistic homosexuals” of Brown function as part of a regulatory practice that produces – through “demarcation, circulation and differentiation” – the bodies that it governs. The House of Lords “speaks” the appellants into being through complex discursive strategies, allowing no external or objective standpoint from which to view them.115

It made sense for the Lords to turn to Wolfenden in search of the modern sexual subject, for the

Wolfenden Committee had performed a similar, more thorough, discursive process almost 40 years earlier to identify and produce the modern sexual subject. However in 1954 the

Committee did not consider sado-masochism; the sexual subject predicated by acts of SM does not appear in Wolfenden. Therefore, in their search for the modern sexual subject, the Lords of the majority in Brown concluded that the (homo)sexual subject is he whose behaviours are stipulated in law, and who may be found catalogued in Wolfenden. The subjects of Brown, in their transgressions of the modern codes of sex, are constructed as illegitimate and deviant, beyond the scope of the law. Carl Stychin identifies within the trials of Brown a process of construction of

113 Ibid. 114 Sangeetha Chandra-Shakeran, ‘Theorising the Limits of the “Sadomasochistic Homosexual” Identity in R v Brown’ (1997) Melbourne University Law Review, Vol 21, 590. 115 Ibid, 591.

the men as ‘lacking in self-control, as violent’.116 The subject of Brown is he who ‘has transgressed the boundaries not only of the sexual, but also of the civilised, through acts of depravity that require the reaffirmation of social norms’.117

Constituting the sexual subject entailed assessing his interests against those perceived to be of

the ‘general public’. In Brown the interests of the public ‘unabashedly’ prevail,118 as do the

interests of the state: in the judgment it was clarified, activities for which there might be ‘good

reason’ to permit consensual assaults involve those which could serve the Crown or the state,

such as ‘manly diversions [that] tend to give strength, skill and activity, and may fit people for

defence, public as well as personal, in time of need’.119 These include ‘the case of persons who

in perfect friendship engage by mutual consent in contests such as “cudgels, foils, or wrestling”

which are capable of causing bodily harm’.120 For the court, the ‘satisfying of the sadomasochistic libido’ does not come within the category either of ‘good reason’ or ‘manly diversions’.121

The old state and a respect for the individual

The reference in Brown to ‘manly diversions’ and ‘cudgels’ sounds quaint in the 1990s. It

suggests an invocation of the old view of the state, when the demands of the sovereign ruled

supreme and the desires of the individual went unacknowledged. The usual stories tell us that

the old state was paternalistic: it did not respect our desires to do as we please; it did not allow

us to make our own choices about our own lives (even those choices which affected no-body

but our selves); it did not respect our privacy; it did not respect our rights to rule over our

116 Carl Stychin ‘Unmanly Diversions: The Construction of The Homosexual Body (Politic) in English Law’, 535. 117 Ibid. 118 Ian Freckleton ‘Masochism, Self-mutilation and the Limits of Consent’ (1994) Journal of Law and Medicine, Vol 2, 60. 119 R v Donovan [1934] 2 KB 499 at 508 per Swift J, cited in R v Brown [1992] 2 AII ER 552 at 558 per Lord Lane CJ. 120 Ibid. 121 R v Brown [1992] 2 AII ER 552 at 559 per Lord Lane.

selves. The old state did not respect the rights of man or the modern, liberal ideal on which we base these rights, that ‘over himself, over his own body and mind, the individual is sovereign’.122

Along with its paternalism and moral sanctimony,123 a common criticism of the Brown judgment is its ‘glaring insensitivity to the matter of privacy’.124 Sexual rights are often discussed in terms of privacy, particularly since the late 1960s and the decade of debate that followed the release of the Wolfenden Report in 1957. The Wolfenden Report is often described as a turning point in the way in which the state viewed the regulation of the body, and in its dramatic shift away from the rhetoric of one’s mutual obligations to the nation, toward the view that sex in private is the business of neither the state nor the nation. Its mantra, ‘consenting adults in private’, stands in stark contrast to the old belief that it is a matter of grave public interest what people choose to do sexually with each other (and themselves). The Wolfenden Report is typically portrayed as embodying the ideals of the new state, that sex is ‘simply not the law's business’.125 As Beverly

Brown notes,

A distinction must be recognised between a private domain of morality where free choice should reign and a public domain of legally controlled activities. Updated for post-war Britain, Wolfenden attempted to translate this abstract distinction into the physical terms of public and private spaces.

In private places, the only reason for restricting freedom should be harm to others, serious and provable harm, also recognising that some groups – the young, the economically weak – were especially vulnerable to exploitation. Otherwise what definitively did not belong in this private domain were moral “busybodies” attempting to impose their standards on others.126

In the tradition of Wolfenden, the right to privacy formed the basis of the final appeal of the

Brown appellants to the European Court of Human Rights, on the grounds that there was ‘good

122 John Stuart Mill, ‘On Liberty’ in On Liberty and Other Essays (London: Penguin Books, 1974), 69. 123 Ian Freckleton, ‘Masochism, Self-mutilation and the Limits of Consent’, 68. 124 Richard Mullender, ‘Sado-Masochism, Criminal Law and Adjudicative Method: R v Brown in the House of Lords’ (1993) Northern Ireland Legal Quarterly Vol 44 No 4, 381. 125 Richard Green, ‘(Serious) Sadomasochism: A Protected right of Privacy?’, 544. 126 Beverly Brown, ‘Troubled Vision: Legal Understandings of Obscenity’ (1993) New Formations, 19 Spring, 38.

reason’ for ‘keeping the state out of private sexual conduct (between consenting adults, that does not result in severe harm)’.127 The European Court unanimously dismissed the appeal. All

15 judges held that the prosecution and conviction of the appellants might be ‘necessary in a democratic society for the protection of health’.128 Again, it could be argued that the old, illiberal and paternalistic view of the state prevailed, even at the ECHR. That is, that the spirit of

Wolfenden was not honoured even at this higher level of human rights adjudication.

The battle of Brown, between good and evil

The judgment in Brown is commonly viewed as a failure to honour the new role for the state that privileges sexual privacy, individual choice, and the rights of adults to consent to that which they choose. In Brown, it is said, the Lords were paternalistic and archaic in their

dismissal of the rights to privacy and sexual autonomy. The new state is supposed to respect our

freedom and our sexual choices (as long as there is consent). Particularly since 1967, the state is

supposed to allow us to make the choices we want in private.129 The Wolfenden Report and the

permissive revolution of the 1960s saw an overhaul of the old state and surely a clear

identification of the modern sexual subject – his rights and his interests. The privileging of the

public interest over individual rights in Brown is in direct opposition to those who call for the

police to ‘stay out of our bedrooms’ or who demand that ‘the police should be out catching real

criminals, not worrying about what other people get up to in bed’.130 It is in direct opposition to

that 1960s mantra, ‘the state has no place in the bedrooms of the nation’.131

127 Laskey, Jaggard and Brown v United Kingdom (21627/93) [1997] ECHR 4. 128 Ibid. 129 Jeffrey Weeks, ‘An Unfinished Revolution: Sexuality in the Twentieth Century’, 171-72. 130John Wadham, director of the civil rights group Liberty that funded the European Court appeal, cited in Patricia Wynn Davies, ‘Europe Gives S&M Stamp of Disapproval’ The Independent, 20 February 1997, 5. 131 Trevor Jacques quoting former Canadian Prime Minister Pierre Trudeau in the 1967 Canadian debate on homosexuality and the law in ‘A Reply to Judge Pettiti Concerning Consensual SM’ (1997) sourced at http//www.barnsdle.demon.co.uk/span/pet1.html. Trevor Jacques identifies himself as a ‘kinky

The battle between the old and the new state is succinctly displayed in Brown, for alongside the arguments for ‘the public interest’ and the invocations of ‘manly interests’ and ‘cudgels’ is the argument of Lord Mustill in dissent. Lord Mustill argued to quash the convictions. His dissent is based primarily on dismissing the notion of assault where there is a showing of consent, and he warns of the perils of intruding into the private sex lives of adults, urging us to ‘pause on the threshold’ and inquire as to whether sex may be understood legally in terms of criminal assault.132 Lord Mustill did not seek to constitute the modern sexual subject specifically in terms of SM. Instead he advocated the application of the existing codes of regulation for heterosexual sex (and implicitly, homosexual sex) be applied to the activities of the appellants; that the prevailing ideas about privacy and consent with regard to sex be extended to include SM. And this is how I use Brown in my thesis. With its contrasting arguments for individual freedoms and old-fashioned ideas about the sovereign, Brown provides a gift of a window into the debates of the state over sex. This window is an aperture into the broader, longstanding debates of the

20th century and the 1960s in particular that form the focus of my thesis.

The dissenting argument of Lord Mustill is considered by most commentators on the case as the

rational, intelligent and above all, modern interpretation of the role of law in relation to private

sexual activity provided in the various stages of Brown.133 For Richard Mullender, for example,

while Lord Mustill’s criticisms of the policy concerns advanced by the majority in support of their decision serve well to point up the intensely controversial nature of the House’s decision in Brown, the most striking feature of his speech is the way in which he can be seen to draw on both the principle of self-determination and academic’. He is a physicist in Canada. In 1991 he co-authored On the Safe-edge: a Manual for SM Play. See http://www.tokink.com/2005/academics.php 132 R v Brown [1993] 2 AII ER 75 at 102 per Lord Mustill. 133 For example see Sue Streets ‘S&M in the House of Lords’, 233-236, Ian Freckleton ‘Masochism, Self- mutilation and the Limits of Consent’, 48-76, Criminal Law Review Editor ‘Case Comment – Assault (1996) Criminal Law Review, August, 573-574, Anthony Furlong, ‘Reflections on the Case of R v Brown’, Richard Mullender, ‘Sado-Masochism, Criminal law and Adjudicative Method: R v Brown in the House of Lords’, 380-387. Some feminist authors have identified the dangers of normalising sexual violence implicit in Lord Mustill’s arguments. For example see Julie Bradwell, ‘Consent to Assault and the Dangers to Women’ (1996) New Law Journal Vol 146, Issue 6769, 1682-1684 and Cheryl Hanna, ‘Sex is Not a Sport: Consent and Violence in Criminal Law’ (2001) Boston College Law Review, Vol 42, No 2, 239-290. And some authors identify the limitations of all arguments of the Lords, majority and dissent. For example, see B Bix, ‘Assault, Sado-Masochism and Consent’ (1993) The Law Quarterly Review , Vol 109, October, 540-544.

respect for privacy as concerns relevant to specifying the proper scope of the criminal law in the area of consensual violence (and more generally).134

Lord Mustill and his fellow dissenter Lord Slynn of Hadley have been depicted as the

reasonable voices of the new state pitted against the Victorian remnants of the old. The

opposing sides of the judgment are seen as succinctly capturing the ‘classic philosophical

antinomy of paternalism and autonomy’.135 And the debate is commonly understood as split along lines of progress, modernity and the evolution of the criminal law.136

For example, Roland Jaggard explains his own prison sentence with reference to the age of the

Lords, noting that the three who found against him and his co-defendants were all over 70 years of age, while Lords Mustill and Slynn were both under 55 years of age.137 For Jaggard the

majority decision was motivated by archaic ideas about the proper role of the state that is the

product of individual bias on the part of the various judges. Jaggard refers to Lord Lane, who

decided the initial appeals case, as a ‘prehistoric dinosaur’.138 For Steve Hedley, the criminal justice system is historically ‘barbaric’ and the Lords of the majority in Brown were seeking

‘continuity with a brutal past’ in their decision.139 According to John Wadham, Director of

Liberty, the civil rights organisation that funded the Brown appellants’ appeal to the ECHR, and counsel for the appellants at Strasbourg, Brown is so out of touch with modern society, ‘that when the issue is raised, television discussion programs are apparently hard-pressed to find anyone to put the anti-libertarian view’.140 For Wadham, and for Liberty, Brown is matter of

modern freedoms and libertarianism.

134 Richard Mullender, ‘Sado-Masochism, Criminal law and Adjudicative Method’, 384. 135 Ian Freckleton, ‘Masochism, Self-mutilation and the Limits of Consent’, 68. 136 Ibid, 69. I focus on the arguments of Lord Mustill because they are most commonly discussed in academia and by my students. With regard to Lord Slynn, I would only note that this ‘good guy’ was on the dubious side over Pinochet and argued for immunity from extradition in 1998. 137 Roland Jaggard, ‘Operation Spanner’. 138 Ibid. 139 Steve Hedley, ‘Sado-Masochism, Human Rights and the House of Lords’ (1993) Cambridge Law Journal, Vol 52, Issue 2, July, 194. 140 John Wadham, ‘Consent to Assault’ (1996) New Law Journal, Vol 146, No 6772, 1814.

The battle of Brown between the old and the new, or liberalism and paternalism, echoes similar debates of the last 150 years. In the late 1950s and 1960s Queen’s Bench Justice, Lord Devlin took the role of the old patriarch and argued for the state’s right to legislate ‘morality’, as long as it reflects the moral views of the ‘man on the Clapham omnibus’.141 Professor HLA Hart

responded with the ‘new’ view that morality is a choice of individuals, not to be dictated by the

state.142 The debates mimicked those of John Stuart Mill and Sir James Fitzjames Stephen of the

1860s and 1870s, in which Mill championed the freedom of the individual and Stephen insisted

that society was entitled to enforce its code of morals ‘whether or not the immorality punished

caused any identifiable harm or suffering’.143 The battle of Brown has been played out over and over.

While Lord Mustill might be thought to represent the latest protagonist on the side of modern freedom, his arguments for the role of the new state appear to come from some surprising quarters. It is not the Wolfenden Report, or the permissive Sexual Offences Act 1967, on which

Lord Mustill primarily relies to advocate freedom. Lord Mustill relies on the Victorian

patriarchs of the Queen’s Bench, including the judgment of James Fitzjames Stephen. The

ideals of the liberal state are complicated and trans-historical.

The new state: the usual stories and the usual suspects

Richard Mullender identifies the ‘proper scope’ of the criminal law as principles of self-

determination and privacy – modern ideals that might be thought to be characteristic of the

‘new’ state.144 In this first section of the thesis I explore the new ideals of the permissive state to

141 Patrick Devlin, The Enforcement of Morals (London: Oxford University Press, 1965), preface. 142 HLA Hart, Law, Liberty and Morality (London: Oxford University Press, 1963) 143 HLA Hart, The Morality of the Criminal Law, two lectures (Jerusalem: Magnes Press, 1965), 33. 144 Richard Mullender, ‘Sado-Masochism, Criminal Law and Adjudicative Method: R v Brown in the House of Lords’, 380-389.

unravel their genesis and their object. In the second section of the thesis I examine the Victorian state to discern what are the values and ideals of the old state in regard to sex, and to ask: are these ideals so very different from the new approach?

First I explore the new state, as indicated by the permissive reforms of the 1960s, to ascertain whether this is in fact an accurate understanding of the ‘proper scope’ of the state. Did Brown signify a failure to honour the new, ‘proper scope’ of the state? Is the new state concerned with ideals of the individual’s freedom to choose, to self-determine and to act freely in private? I focus on the permissive reforms of the 1960s because they provide the most radical and overt mandate for change of the new state, signified succinctly in the modern mantra of the Wolfenden

Report, ‘consenting adults in private’. In this section I explore, what it means for the state to claim to uphold the rights of ‘consenting adults in private’. I focus particularly on the Wolfenden

Report because it constitutes the primary artefact of the permissive state.

The conventional story of the genesis of the permissive state is that of a shift in focus from state regulation to individual personal regulation of so-called concerns of morality. This shift aimed to ‘get the balance right’ between the interests of the individual and the state. Jeffrey Weeks tells the conventional story:

The so-called “permissive reforms” of the law on abortion, homosexuality, divorce, censorship and birth control, far from being a licence to do whatever you want, were actually about finding the right balance between private pleasures and public policy, between freedom and regulation….The debate is about the legitimate limits of choice, not about the legitimacy of choice itself.145

This shift is usually understood in terms of a response to demands made by the triumphant

modern individual championed by Eric Hobsbawm.146 Implicit in the arguments of Hobsbawm

and Weeks that privilege the individual and capitalism is a story of the individuation of society,

driven by the machinations of a socially dominating economy that promoted the widespread

145Jeffrey Weeks, ‘An Unfinished Revolution: Sexuality in the Twentieth Century’, 169.

acceptance of consumerism and choice. As a response to the democratising, individuating and self-regarding mechanism of the capitalist economy, the state retreated and abdicated control in the face of a losing battle with consumerism and materialism that privileged individual choice in consumption. Put simply, due to the pervasive success of a capitalism that began to boom in the

1950s, when Harold MacMillan lectured, ‘you’ve never had it so good’, individuals who were directed to value choice in their economic/consumer lives came to demand choice in their personal and moral lives.147 The state gave in; it relinquished control in order to allow

individuals to make rational choices about their own personal lives. That is the conventional

story: the state gave up regulation.

However, in this thesis I contest this story of demand, control and choice, to argue that the

reforms of the permissive state constituted a re-configuration of control – not an abdication. I

am guided in part by observations such as that of Frank Mort that the outcome (and intention) of

the Wolfenden Report was the increased regulation of sexuality.148 Starkly overlooked in the usual stories of the permissive state is the simple fact that Wolfenden marks the 20th century state’s meticulous cataloguing and covert controlling of sexual behaviours.

The story of the permissive state is incomplete without reference to the foil of the repressive

Victorian Regime that I explore in Section Two of the thesis. The supposed ‘battle’ of Brown concerns modern tolerance of individual freedoms versus old-fashioned ideas about the ‘health’ of the nation and obligations to the state. The ‘battle’ supposedly mimics battles of the 1950s to have the consent of adults acting in private acknowledged and respected, and men’s homosexual

146 Eric Hobsbawm, Age of Extremes, 334. 147 In other predominant analyses that do not focus on the individual, a materialist invocation of modernity and its inevitable progress is apparent. For example, for libertarian academic Christie Davies, ‘permissive reforms’ came about in the modern 1960s because society had come to be dominated by considerations of cause and effect, and of technical rationality (Davies: 1975:39). 148 Frank Mort, ‘Cityscapes: Consumption, Masculinities and the Mapping of London’ (1998) Urban Studies May, 35, Nos 5-6, 891.

sex thereby decriminalised.149 It is the great battle for sexual freedom of the 20th century. The

story of this ‘battle’, which is built on the conventional stories of the permissive evolution is, I

argue, erroneous. The ‘battle’ in Brown involves two sides of the same Victorian coin. This

observation leads me to conclude that the current relationship of the state to sex is very much in

the model of the Victorian approach. Described either as a ‘revolution’ (disjunction) of the

permissive state, or as a gradual, smooth evolution of the permissive state, the ‘permissive’ shift

of the 1960s has been exaggerated.

I see in the 1960s state re-configuration a consistency, rather than a dramatic or revolutionary

break with the past. Hence, my introductory remarks that my analysis of the 1880s and the

1960s reveals an unanticipated consistency. My focus and my conclusions concern not only a

surprising, repressive nature of the 1960s reforms. My focus and conclusions concern the

misunderstood nature of the Victorian state’s interest in sex, from which we barely have

travelled. I identify in the Wolfenden Report the late stages of the Victorian project of

classifying and creating the modern sexual subject. This subject was not created with a view to

freedom, but was created in order to become the object of control.

This first section consists of five chapters. In chapter One I introduce the permissive state. I

sketch a brief outline of the new state that is often characterised by the ‘legislation of consent’:

legislation affecting the individual such as the Homicide Act 1957, the Suicide Act 1961, Sexual

Offences Act 1967 and the Abortion Act 1967. In this brief chapter I want to present the broader

political climate in which sex law reform was enacted. In Chapter Two I focus on the Wolfenden

Committee and argue that it was not motivated by ideals of freedom, rather by a vision for

149 For example, Chris Tame Director of Libertarian Alliance, sees ‘no difference in the moral status of sado-masochistic sexuality (whether homo or heterosexual) and homosexuality. It has taken time and a great deal of intellectual and Parliamentary endeavour to expel the law from the private lives of homosexuals…Most people now accept that homosexuality cannot be repressed by legal measures, that homosexuals are not demonic monsters whose presence will lead to the end of civilisation, and that people are entitled to have different sexual orientations. It is bizarre that the judges in the Spanner case,

control. In Chapter Three I examine the widespread myth of a public panic over men’s homosexual sex in the 1950s to show how this myth has been manipulated by the state for the purpose its own agenda of control. In Chapter Four I examine the myths about another 1950s panic, over women’s street prostitution to show, again, how the state has used this myth to implement its own agenda. In Chapter Five I explain the passage of the Sexual Offences Act

1967 to illustrate that the Act was not a response to public demand and was not aimed at the

liberation or enfranchisement of the individual homosexual man.

the appeal, and the House of Lords ruling….should all be so set upon criminalising sadomasochism’(1994).

Chapter One: Myths of the Permissive State

Sexual intercourse began In nineteen sixty-three (Which was rather late for me) Between the end of the Chatterley ban And the Beatles' first LP.

(Philip Larkin, 'Annus Mirabilis' 1967)150

Philip Larkin’s twee history is not accurate: Lady Chatterley was out of the courts and on sale in

1960 and the Beatles’ first LP Please Please Me was released in 1961.151 However, 1963 was the year of the Profumo affair, bringing tales of debauchery involving the upper echelons of

British political society into family homes via the tabloid press. The Profumo scandals involved call-girls, espionage, organised orgies, whipping parties, sex parties for MPs who had ‘popped out of the House of Commons’, and a dinner party where a man wearing only a mask ‘waited on table like a slave’.152 And the Secretary for War was implicated. On 22 March 1963 Jack

Profumo was questioned in parliament about his association with Christine Keeler. He denied

their ‘acquaintance’ was of a sexual nature, and claimed that ‘there was no impropriety

whatsoever’.153 However Profumo resigned on 5 June 1963 with the admission that he had committed a ‘grave misdemeanour’, in that he had misled parliament.154 And thus was born one of the enduring images of the permissive society, Christine Keeler.

150 Philip Larkin, ‘Annus Mirabilis’, in Anthony Thwaite (ed), Philip Larkin Collected Poems (London: The Marvel Press, 1988), 167. Despite Larkin’s canonisation for ‘Annus Mirabilis’ in the mythology of the care-free permissive society, his own life was peppered with despair, conservatism and reactionary racism. Larkin died an alcoholic in 1985. Since his death, audio tapes have been recovered that reveal the poet's racist and alcoholic leanings. One features Larkin and his girlfriend Monica Jones ‘singing lines he had earlier scrawled in one of his notebooks. It includes the verse "Prison for strikers / Bring back the cat / Kick out the niggers / What about that?" sung to the tune of Lilliburlero’. Larkin's father Sydney was a ‘well-known Nazi sympathiser who visited Germany regularly in the 1930s, attending several Nuremberg rallies. A statuette of Hitler was given pride of place on the mantelpiece at the home where Larkin says he "unspent" his childhood’ (Walsh: 2003). The archetypes of the permissive society are complicated and deceptive. 151 R v Penguin Books Ltd [1960] Crim LR 176. 152 Phillip Knightley and Caroline Kennedy, An Affair of the State: The Profumo Case and the Framing of Stephen Ward (London: Jonathan Cape, 1987), 8. The identity of the masked man is still sought. 153 ‘Mr Profumo Ignorant of Witness’s Whereabouts’, The Times, 23 March 1963, 8.

Along with scandal and heightened ‘promiscuity’, the decade of the 1960s is sometimes described in terms of a permissiveness that was directed by the state and its legislative reforms, stemming particularly from the 1961 Suicide Act. As early as 1971 John Selwyn Gummer speculated about the very existence of the permissive state. Gummer criticised a belief in the

‘inexorable march’ of permissiveness as the misguided ‘pious belief of all elitist establishments’.155 Jeffrey Weeks appears to write in thrall to such a belief: at the end of the 20th century Weeks wrote of the history of the regulation of sex in terms of progress and an

‘unfinished revolution’ that had reached its ‘apogee’ in the legislation of the 1960s.156

In this chapter I examine fundamental mythologies of the new state that supposedly were not

honoured in Brown. To ascertain whether Brown is anomalous in regard to the goals of the new state, I first need to get to the bottom of those goals. Here I focus on the myths of the permissive state in general, beyond the scope of sex. Before I delve more deeply into the Wolfenden Report and its legislative outcomes, I want to present the broader political climate in which sex law reform was enacted. There is a tenacious folklore about the state of the 1960s. It is a mythological era, starring Profumo, the Cold War, the sexual revolution. Here I want to briefly investigate the permissive state to determine the actual character of the state.

I begin this chapter with a description of the usual stories of the permissive state and the status quo: stories of progress and linear distance away from oppression, toward more freedom and

less involvement of the state in matters of so-called individual choice or morality. I examine the

common theme of these stories: that the permissive state was a response to the demands of a

permissive society. I want to determine if this idea bears scrutiny. I look at the ‘legislation of

consent’ of this period, for example, around the question of capital punishment. I illustrate how,

regardless of what society might have been demanding, its demands were not the spur to the

154 ‘Mr Profumo Resigns: I Misled the House’, The Times, 6 June 1963, 12. 155 John Selwyn Gummer, The Permissive Society: Fact or Fiction? (Cassell: London, 1971), 11. 156 Jeffrey Weeks, ‘An Unfinished Revolution: Sexuality in the Twentieth Century’, 171.

state’s legislative actions during this period. Here I do not attempt a detailed political analysis of capital punishment or suicide legislation. In this brief introductory chapter I merely set the scene for my following discussion of the Wolfenden Report, the Street Offences Act 1959 and the Sexual Offences Act 1967. My conclusion is that in determining the nature of the new state, we must transcend the prevalent mythologies that would depict the state as responding to the

demands of the public. There is one simple point to be made in this chapter: the permissive state

was not overly concerned with public demand.

Mythologies of progress: the usual stories of the 20th century

The 20th century, spurred and fortified by the Edwardian ‘break’ with Victorianism, is commonly understood in terms of an end of sexual reservation, a shift from sexual repression to one of perceived freedom and self-expression, the freedom to act upon one’s sexual desires.157

The orthodox story, even when told by a self-defined sexual outlaw like Jeffrey Weeks, tells us that the ‘unfinished revolution’ of civilised tolerance, spurred by Freud and then by Wolfenden, exploded in the 1960s and progressed toward the end of the 20th century. However, this progress was sorely tested in the 1980s, amid panic over HIV/AIDs, paedophilia and child pornography.158 Parallel to the orthodox story of the Victorian era as repressive runs a conservative idealisation of the 19th century that laments the ‘impact of permissiveness’ and evokes in contrast, lost ‘Victorian values’.159

The 1980s in Britain in particular have been described in terms of a resurgence in conservative

nostalgia for an embellished and romanticised Victoria. Margaret Thatcher is often cited in her

157 Lucy Bland and Frank Mort, ‘Thinking Sex Historically’, 17. Original Emphasis. 158 See Pat Califia, ‘The Age of Consent: The Great Kiddy Porn Panic of ‘77’ and ‘The Aftermath of the Great Kiddy Porn Panic of ‘77’ in Califia Public Sex: The Culture of Public Sex (Pittsburg: Cleiss Press, 1994) 29-70, and Antony Grey, ‘How Moral is the Backlash?’ in Grey Speaking Out: Writings on Sex, Law, Politics and Society 1954-1995 (London: Cassell, 1997), 151-163. 159 Jeffrey Weeks, ‘An Unfinished Revolution: Sexuality in the Twentieth Century’, 173.

lament for lost ‘Victorian values’,160 which implies a sense of ‘a golden age of economic liberty

and moral responsibility that has been lost but could yet be regained’.161 In this climate, the

orthodox story tells us, state permissiveness and tolerance began to be dismantled; attempts

were made to coerce us ‘back into a conservative morality’.162 Today we live amid the complicated and contradictory milieu of this legacy. For Beverly Brown,

today there is a sense of an all too evocative repetition of the late 19th century in the return of the imagery of disease. The sense of an inherently dangerous, unpredictable, latent and punitive sexuality, a degenerate sexuality capable of extinguishing future generations – the very image supposedly rejected by modern juries as incomprehensible antiquated Victoriana - has returned in the spectre that is made of AIDS.163

Dramatically, in the case of Brown, the unfinished revolution is taken to have hit the wall. The

complex landscape of the ‘battle’ between Victoria and the permissive state, including the main

agents of sex and morality, is succinctly and precisely captured in the judgments at the House of

Lords. One might argue that the unfinished revolution must continue to expand to accept sexual

difference such as group SM. Or, one could argue that the revolution need not go so far as to

incorporate and legitimise group SM: this is its natural limit. My point is that the assumption

underpinning both arguments is that of a linear progression of a more (or not) flexible state. I

see this as a spurious assumption from which to understand the status quo. Lord Mustill in

arguing for the legality of SM in Brown invoked the arguments of the Victorian patriarchs of the

Queen’s Bench to make his case for sexual privacy and the supremacy of consent.

Universal values: understanding the new and old states

In discerning the nature of the new state, Jeffrey Weeks does problematise the contrasting

invocation of Victorian values as being historically ‘shaky’.164 However, his criticism is based

160 For example see Jeffrey Weeks, ‘Sexual Values Revisited’, 43 and Martin Durham, ‘Conservative Agendas and Government Policy’ in Lynne Segal (ed) New Sexual Agendas, 92 161 Martin Durham, ‘Conservative Agendas and Government Policy’, 92. 162 Ian Freckleton, ‘Masochism, Self-mutilation and the Limits of Consent’, 72. My emphasis. 163 Beverly Brown, ‘Troubled Vision: Legal Understandings of Obscenity’, 40. 164 Jeffrey Weeks, ‘Sexual Values Revisited’, 43.

on what he identifies as simplistic assumptions made about the homogeneity of such ‘values’ (if they existed in any universal form at all). Weeks writes that it is his intention

to warn against that facile history which looks back to a “golden age” when somehow everything was better, more fixed and certain, than it is today. It wasn’t and we are not going to be able to deal with the challenges of the close of the 20th century if we seek to return to the largely mythical, supposedly wholesome values of the last [century].165

Weeks criticises the story of universal Victorian values, but he does not critique the notion of

our progress and distance from the era. He also invokes the idea of progress as having been

stilted, and having returned from whence it came in the conservative moments of the 1980s.166

The conservative return of the 1980s to the model of the 1880s is a hiccough in a steady progress. The analysis of Weeks would suggest that although Victorian values were dispersed and manifested differently between classes and individuals, the Victorian state can appropriately be characterised by the outlawing of sexual practices and the denial of sexual identities. That is, as repressive and overtly concerned with sex.

Weeks is optimistic, however, that despite the espousal by the modern state of Victorian values, and a certain ‘closing of space around a number of key issues’, the liberalisation of attitudes toward sex spawned in the 1960s ‘continued to grow, perhaps even increase during the Thatcher years, and has continued during the 1990s’.167 Therefore, in this picture, it is the state that is out

of tune in its returns to Victoria. Just as Eric Hobsbawm sees the permissive state responding to

the shifts in mores of individuals,168 Weeks writes (gratefully) of the state in term of impotence, even in its relapse into Victorian oppression:

There seems to be a long-term [liberal, progressive] shift both in beliefs and behaviours taking places which governments have only a limited power to affect. They can toughen laws, pursue errant fathers, condemn the “promotion of

165 Jeffrey Weeks, ‘An Unfinished Revolution: Sexuality in the Twentieth Century’, 166. 166 Ibid. In the usual stories, the apogee of the conservative 1980s is embodied in Clause 28 of the Local Government Act 1988, which outlawed the ‘promotion of homosexuality’ by education authorities. It was repealed with effect from 18 November 2003 by Section 122 of the Local Government Act 2003. 167 Ibid, 169-70. 168 Eric Hobsbawm, Age of Extremes, 334.

homosexuality” and the like. They can contribute to the sum total of human misery. But they cannot force people to behave in ways that they don’t want to.

This is, in part, at least, recognised in the new legal framework that reached its apogee in the liberal reforms of the 1960s, but which still, if inadequately, shapes legal responses.169

The characterisation by Weeks of pursuing errant fathers as similar politically to condemning the promotion of homosexuality is telling. It reveals a broader tendency in the sociology of deviancy to blithely link together all so-called ‘deviants’ in their oppressed states. A simple feminist analysis would show that pursuing errant fathers need not contribute to the sum total of human misery. Rather, errant fathers often contribute to this misery, particularly of women and children. The ‘oppression’ by the state of homosexuals and ‘errant fathers’ is not necessarily related in the sense implied by Weeks. Rather, it is a commitment to the sociology of deviancy that insists on disregarding power differences and gender differences between ‘deviants’ that underpins this misleading conclusion.

The political model of characterising all ‘deviants’ as similarly politically interested and invested has allowed, in academic and historical discourse, for the continued linking of gay men and prostituted women as being similarly situated. This linkage was spurred by the Wolfenden

Committee’s definition of each category as similarly immoral and promiscuous. However, the economic position of prostituted women makes their concerns politically very different from those of men who wish to be free to practise their sexuality.170 The myths of the Wolfenden

Committee about deviance and sexuality have not died, but have transformed themselves within academic discourse.

Despite his laudable concerns about the sum total of human misery, Jeffrey Weeks seems to suggest that mores and attitudes are not shaped by the state. In my view, the state teaches and

169 Ibid, 171. 170 Sheila Jeffreys identifies the limitations of a male biased sociology of deviance that contains ‘no exploration of the role of power in the designation of (1997: 61).

demarcates values, especially those concerning how we understand sex. It is not impotent, and it does not merely fall into line with, or respond to, public demands. The state is creative. This can be illustrated in the simple fact that the Wolfenden Report is a product of the 1950s, arguably well before the supposed permissive shift in society.171

The legislation of consent: typifying the 1960s

To assess the orthodox stories of progress and evolution, it is important to identify what it is the state is supposed to have been doing, to have caused such a dramatic shift, or revolution,

throughout the 20th century. For Jeffrey Weeks, the relationship of the individual to the state underwent a dramatic change in the 20th century, and in his analysis, it would appear to have

been the heroic rise of the individual that directed this shift. However, I suspect that the state

itself might be implicated in the change in values and ideals that Weeks champions. With this

suspicion in mind, I now briefly examine some of the fundamental legislative shifts of the state

in this period. I want to identify how we might characterise the 1960s state. Before I address the

Wolfenden Report in detail I first briefly sketch the broader political context of the permissive

state and its legislation of consent.

In 1977 the National Deviancy Conference aimed to address questions of ‘permissiveness and

control’, and to identify ‘whatever happened to the sixties legislation?’.172 Stuart Hall responded

to the conference by exploring what he identifies as the ‘legislation of consent’ that typified the

171 In this regard, my argument involves an important break with the sexual liberal theories of Weeks and others, illustrated in my concluding observations about what the myths of the state mean, what state myths do in practice, especially for women and their experiences of sexual harm. 172 National Deviancy Conference (ed) Permissiveness and Control: The Fate of the Sixties Legislation (London: MacMillan Press Ltd, 1980), vi. The National Deviancy Conference involved a ‘growing body of sociologists and individuals involved in social action in the United Kingdom’ (Roberts). The conference ‘explicitly sought to question the pathologising of crime, the reliance on positivist method and to draw attention to the intrinsically ideological dimension of criminological thought (Muncer, Campbell & Gillen: 1996: 1-2)

period and fuelled the notion of ‘permissive Britain’. He points to legislation such the Obscene

Publications Act 1964 and the Sexual Offences Act 1967, which affected the ‘spheres of sexual and social conduct and freedom of expression’.173 Again, the emphasis on these themes

illustrates the hegemonic success of the Wolfenden Report in designating the objects of the

legislation of consent as deviants with fundamental common interests.174 Instead of asking

‘whatever happened to the sixties legislation?’, here I ask, what was the object of the legislation?

The 1960s have been viewed as involving a shift towards a self-regulating model for the individual within some spheres of the criminal law. The shift in emphasis is away from man’s temporal and physical obligations as a citizen to his Empire, toward his rights as an individual, tucked away in the ‘Englishman’s Castle’, beyond the probing eye of the state (within the demarcated zone of the ‘private’).175 Perhaps today it could be assumed that this shift was inevitable and timely, if not overdue, in a modern and liberal Britain. But in fact, it is far from resolved what political role this new direction played. Stuart Hall notes a raft of legislation apparently instigated by Conservative Home Secretary Rab Butler, appointed in 1957 (described by Helen Self as ‘likely to go down in history as one of the most progressive, thoughtful and dedicated of Tories’).176 Yet, Hall notes, such legislation was implemented consistently at the direction of both Conservative and Labour cabinets.177

Hall fails to credit the particular zeal of the Labour MP Leo Abse, responsible for private members bills such as the Family Planning Act 1967, the Divorce Reform Act 1969 and the

173 Stuart Hall, ‘Reformism and the Legislation of Consent’, in (ed) Permissiveness and Control: The Fate of the Sixties Legislation (London: MacMillan Press Ltd, 1980), 1-43. Stuart Hall is a cultural theorist academic from the UK, especially interested in race theory, reception theory and the role of hegemony. 174 For Lucy Bland and Frank Mort, the sentiment of the National Deviancy Conference is a prime example of the 1960s /1970s revival of interest in the contrast between the 1960s and Victorianism. See ‘Thinking Sex Historically’, 17. 175 In 1965 Lord Devlin assured readers that despite his arguments for the legislation of morality ‘the English man’s home is still his castle’, in ‘Morals and the Criminal Law’ in Patrick Devlin (ed) The Enforcement of Morals, 18. 176 Helen J Self, Prostitution, Women and the Misuse of the Law: The Fallen Daughters of Eve (London: Frank Cass, 2003), 164.

Sexual Offences Act 1967, all of which Abse envisaged as implementing his own sophisticated and civilised vision for the state. The eccentric MP, famous for the psychedelic shirts he liked to

wear on budget day,178 lamented in 1973 that ‘not all my colleagues were perhaps aware of the

basic assumption of Marx, Hobhouse, Durkheim and Weber that man was crucially

distinguishable from other animal species by his purposive moral nature’.179 But Abse himself

was and is well aware. Abse describes the world in Freudian terms (or torrents of

‘psychobabble’180), and seems to believe he knows better than most people, and certainly better

than most members of the House of Commons, their real repressed needs and desires. The

1960s reform agenda of Abse might well have been one that John Selwyn Gummer could

consider typical of the ‘pious belief of all elitist establishments’.181 In Chapter Five I discuss the personal role of Leo Abse, particularly in homosexual law reform.

Suicide and the death penalty: the beginnings of the permissive state

I would identify the Suicide Act 1961 as a milestone of the novel way in which the state was presented to its citizens throughout this period. The Act decriminalised the common law felony of suicide and the misdemeanour of attempted suicide. HLA Hart described the Act in 1963 as

‘something of a landmark’ in legal history.182 This was despite his opinion that the legislation

was likely to touch few people directly. The Suicide Act affected most directly those found

guilty of attempted suicide, prosecutions for which occurred up until 1960. In 1960 460 people

were convicted of the crime and 21 served sentences.183

177 Stuart Hall, ‘Reformism and the Legislation of Consent’, 3. 178 When Labour leader Jim Callaghan first saw Leo Abse's ‘gaudy Budget Day finery’ he told the flamboyant Welsh MP he was ‘finished in politics’ (Dunn: 2003: 17-18). 179 Leo Abse, Private Member (London: MacDonald and Company, 1973), 162. 180 Michael Vestey, ‘Lifting the Gloom’ (2004) Spectator, 8 May, Vol 295, 59. 181 John Selwyn Gummer, The Permissive Society: Fact or Fiction? (London: Cassell, 1971), 11. 182 HLA Hart, Law, Liberty and Morality (London: Oxford University Press, 1963), preface. 183 HLA Hart, The Morality of the Criminal Law, 43. The last person convicted of attempted suicide in England was a prisoner, Griffiths, who had tried to commit suicide in his cell and received a further sentence for his troubles (Retterstøl: 2000:3).

Hart wrote that the Suicide Act was ‘the first act of parliament for at least a century to remove altogether the penalties of the criminal law from a practice both clearly condemned by conventional Christian morality and punishable by law’.184 Under the rule of the old state, suicide was not considered a private choice of individuals at all, but rather, a crime against the

Crown. For Blackstone, self-murder, the ‘real cowardice’ of the Stoics, was a felony of the highest order because it was a double offence.185 It was a spiritual offence for its ‘invading of

the prerogative of the Almighty, and rushing into his immediate presence uncalled for’;186 it was a temporal offence against the King who ‘hath an interest in the preservation of all his subjects’.187 In the spirit of Blackstone, citizens’ bodies historically have been understood as obliged to the state or the Crown. As Lord Denning explained in 1954 when chastising Mr

Bravery for having a vasectomy the ‘classic instance’ of the state prescribing its claim on the individual citizen’s body is

a case recorded by Lord Coke, tried at Leicester in 1604 when a ‘young, strong and lustie rogue, to make himself impotent’ got his companion to cut off his left hand so that he might avoid work and be better able to beg. Both were found guilty on indictment of a criminal offence. A later instance can be given from early Victorian days when soldiers, as part of their drill, had to bite cartridges. A soldier got a dentist to pull out his front teeth to avoid the drill….both were guilty of a criminal offence.188

Decriminalising suicide appears as a bold move on the part of the conservative MacMillan government in 1961. However in 1957 rumblings had already begun of a state shift in its relationship to the body, with the Homicide Act that limited capital punishment. The Labour

Party had long opposed the ‘hanging lobby’189 but during the Second World War the capital punishment debate was muted. The return of a Labour government in 1945 led to speculation

184 HLA Hart, Law, Liberty and Morality, preface. 185 Blackstone's Commentaries on the Laws of England, Book IV: Chapter 14: of Homicide (London: Dawsons of Pall Mall, 1966), 189. 186Ibid. 187 Ibid. 188Bravery v Bravery [1954] 3 AII ER 59 at 67 per Lord Denning. The other judges in the case felt bound to dissociate themselves from Lord Denning’s dissenting remarks. 189 Stuart Hall, ‘Reformism and the Legislation of Consent’, 7.

that abolition of capital punishment would ‘naturally follow’.190 But it did not. Peter Richards

argues that ‘major obstacles’ blocked reform directly after the war. No private member’s bill for

abolition was put forward because Cabinet, committed to implementing a complex program of

social and economic reform, allowed no time for backbench initiatives.191 Richards also notes that senior members of Cabinet became hostile to the abolitionist cause.192

Capital punishment in crisis: Ellis, Bentley and Evans, and John Christie

On 13 July 1955 Ruth Ellis was hanged at Holloway Prison for murdering her lover, racing driver David Blakeley, after he had assaulted her and caused her to have a miscarriage.193 On

the day of her execution a crowd of 500 people massed outside the prison's gates, singing and

chanting for Ellis. Thousands more demanded that the death penalty be revoked for her,

including 35 members of London County Council who delivered their petitions to the House of

Commons.194 The controversy over Ellis’s execution led to the suspension of hangings in

Britain for almost two years.195 In the same period two other capital cases caused public

controversy. In 1949 24 year old Timothy Evans had been hanged for killing his wife and baby

daughter. However, during the investigation he retracted his confession and accused John

Christie of the crimes.196 Christie lived in the same house as Evans at 10 Rillington Place in

Notting Hill (or ‘Christieland’ as the area came to be known).197 In 1953 six women’s bodies,

including that of Christie’s wife, were discovered in the grounds of the building. Christie

confessed to all the murders, including that of Mrs Evans (although not the baby). Christie was

executed and the Home Secretary held an investigation into the conviction of Evans. The much

derided Scott Henderson Report concluded that the conviction was justified. In 1966 a second

190 Ibid. 191 Peter G Richards, Parliament and Conscience (London: George Allen & Unwin 1970), 39. 192 Ibid, 40. 193 Ibid, 44. 194 BBC News, ‘1955: Woman Hanged for Killing Lover’, On This Day, BBC website, sourced at http://news.bbc.co.uk/onthisday/hi/dates/stories/july/13/newsid_2745000/2745023.stm. 195 Ibid. 196 Peter G Richards, Parliament and Conscience, 44. 197 Elise Segrave, ‘A Far From Deserted Village’ (2001) Spectator, 26 May, 6.

inquiry found that Evans was not guilty, and he was pardoned posthumously. Frank McLynn writes that the case ‘revolutionised attitudes toward the death penalty’.198

The case of Derek Bentley also commanded support for abolition in this period. In 1953 Bentley

and Christopher Craig, respectively aged 19 and 16, broke into a warehouse. Attempting to

escape, Craig shot and killed a police officer. At the time of the shooting, Bentley was in police

custody. Both were convicted of murder, Bentley because of the doctrine of constructive malice

which requires that anyone who has a ‘common purpose’ with someone else must assume

common responsibility for ‘whatever happens in the pursuit of the common aim’.199 Bentley

was executed, despite the jury’s recommendation of mercy. Craig was spared as he was not yet

18. For Ludovic Kennedy, Bentley’s death was the due to ‘two of the most disgusting office

holders of our time’: Lord Chief Justice ‘sadistic’ Lord Goddard, and the Home Secretary Sir

David Maxwell Fyfe.200 Thus as Peter Richards notes, in 1953 state embarrassment led to a shift in policy on arguably the most serious of civilian offences.201 Derek Bentley was pardoned

posthumously on 30 July 1998.202

In 1957 the Homicide Act restricted capital punishment to six types of homicides, and introduced the plea of ‘diminished responsibility’, which could commute to manslaughter a charge of murder. In a classic Foucauldian display of display of state order and control, the Act catalogues and dictates the state’s interest in capital transgressions. Yet it is not a rational

198 Frank McLynn, ‘The Rough Drafts of Official History’ (2000) New Statesman, 10 January, 44. 199 Peter G Richards, Parliament and Conscience, 43. 200 Kennedy recalls that during Fyfe’s tenure as Home Secretary there was a popular jingle at the Bar: ‘the nearest thing to death in life is David Patrick Maxwell Fyfe’ (2002: 62). Sir Ludovic Kennedy started the campaign to free Bentley and Evans with a book proclaiming their innocence. For the BBC in 2003, Kennedy has ‘gone on to occupy a particular niche in British broadcasting - he is the father of that brand of journalism which pursues investigations into miscarriages of justice until someone takes notice’. The author of six books on the subject, he has come to the opinion that British justice is itself at fault and that Britain should abandon the adversarial system and should introduce a system closer to the French inquisitorial system instead (BBC: ‘Hard talk with Sir Ludovic Kennedy’). 201 Peter G Richards, Parliament and Conscience, 44. 202 ‘Bentley Trial Unfair Through Flawed Summing-Up’, The Times, 31 July 1998.

ordering. In 1964 Harold Wilson, then Leader of the Labour Opposition, explained to the

Society of Labour Lawyers the Party’s view of the Homicide Act:

It is generally agreed that the Act has neither a rational nor moral basis, and few can be found to defend the present law. We feel that, as this is an issue on which people have strong views and is to some an issue of conscience, it should be left to a free vote of the House, and we are prepared to find Government time for it. On this sort of issue the House of Commons is at its best when each member is expressing his own individual view.203

Wilson’s intentions were carried out when Labour won the 1964 election. The Murder

(Abolition) Act 1965 was enacted to repeal capital punishment for the civilian population. The

repeal could be seen as a protracted response to community demands for the rescue of Ruth

Ellis ten years earlier. However, it is not apparent why it took the case of Ellis in particular and

then a further decade for this demand to be fully effective, other than the fact that Ellis, being a

woman, added enormously to the public interest.204

The causalist (utilitarian) explanation

In 1975 libertarian academic Christie Davies published Permissive Britain, in which he identified the various parliaments of the 1960s as not motivated by a ‘lust for permissiveness or even a love of freedom’.205 Instead, Davies sees the parliaments as having a causalist agenda, as

opposed to a moralist agenda:

Parliament argues today about the consequences of legalising an activity compared with the consequences of not doing so. If it turns out that more harm is done by forbidding an activity than by allowing it, then Parliament will permit it, even if most of the members consider the activity to be wrong or immoral.206

203 Peter G Richards, Parliament and Conscience, 52. 204 Ibid, 45. 205 Christie Davies, Permissive Britain: Social Change in the Sixties and Seventies (London: Pitman Publishing, 1975), 3. Professor Christie Davies, libertarian academic of the 1970s and now of the Social Affairs Unit think-tank in Britain, is most famous lately for his crusading for the ‘right to joke’. Davies fears that ‘political correctness’ is making many joke-tellers hesitant about sharing their humour: ‘as he once observed in communist eastern Europe, having seen one half of the world going crazy, I don't want our half going crazy’ (BBC, ‘Academic fights for un-PC humour’). 206 Christie Davies, Permissive Britain, 3.

For Davies, causalists are utilitarians who look to the consequences and the practical considerations of legislation. Their agenda came to prevail in the 1960s in particular, because in

‘other important sectors of society – in industry, in the economic ministries, in social welfare – men’s thinking had come to be dominated by considerations of cause and effect, of technical rationality’.207 Davies argues that a causalist parliament, ‘freed homosexuals from prosecution,

legalized abortion, made it easier to get a divorce or to lay a bet and liberalised the law on

censorship’,208 simply because it came to realise that the state’s regulation of these actions and

institutions created more trouble than it prevented. The causalist parliament was not motivated

by ideals of freedom, except in terms of preventing the pointless suffering of the targets of the

original sanctions, such as homosexual men.209

However, this explanation does not explain how the causalist parliament came to discern which criminal offences were to be re-assessed in terms of their practical regulation and effect. Why did parliament choose to re-assess ‘moral’ concerns such as sex, in particular? It was not simply the widespread nature of activities such as homosexual sex and abortion that prompted the state’s retreat: for example, parliament did not repeal criminal sanctions for property crime during this period, despite its prevalence. Parliament made judgements about the nature of those acts it retreated from punishing (such as private homosexual sex) that it did not make about crime in general and concluded that the crime or the threat of ‘moral concerns’ was not so important as to continue to warrant punishment. Punishment in these areas was identified as

beyond the agenda of the state.

Blood and toil and sweat and tears: the threat of homosexuality to the empire

Today it might be thought that the state simply repealed ‘victimless crimes’ during this period.

However, this term was rarely heard in the 1950s when, for example, homosexual law reform

207 Ibid, 39. 208 Ibid, 3. 209 Ibid.

was initiated: homosexuality was frequently discussed in parliament and the press in terms of its pernicious threat to the nation and the Empire, as Davies himself acknowledges.210 As late as

1965 Queen’s Bench Justice Lord Devlin expressed sentiments of Imperial anxiety when he

noted in regard to homosexual law reform that ‘a nation of debauchees would not have

responded satisfactorily to Winston Churchill’s call to blood and toil and sweat and tears’.211

Lord Devlin interpreted the threat of vice so profoundly that he saw little difference in its need for sanction from treason or sedition. Devlin wrote, ‘there are no theoretical limits to the power of the state to legislate against treason and sedition, and likewise I think there can be no theoretical limits to legislation against immorality’.212 Devlin’s ideas on morality and the criminal law were interpreted at the time as popular and predominant, even by his critics;213 the ideals of the ‘old’ state were credible in 1965. I discuss Lord Devlin’s debates with HLA Hart over morality in Chapter Two.

The apparent shift in value judgements about so-called moral concerns compared to say, property crime, is the important missing piece of Davies’s puzzle, which he does not address: why would the state appear to relinquish ‘morality’? Davies unwittingly sheds some light on the problem in his discussion of capital punishment reform. Davies describes the Homicide Act

1957 as based ‘entirely on causalist arguments’ in its prescribing of the death penalty for only certain categories of murder, ‘not because they were the most heinous but because it was postulated that murderers of this kind were most likely to be deterred from killing by the threat of execution’.214 For Davies, the Homicide Act was a practical attempt at deterrence. This was

despite the identification above by Harold Wilson of the Act as possessing neither a rational nor

moral basis. The types of murders demarcated as ‘rational murders’ that might be deterred by

fear of capital punishment were: killing in the course of theft, the killing of policemen and

210 Davies has a chapter entitled ‘Buggery and the Decline of the British Empire’ (1975: 93-139). 211 Patrick Devlin, ‘Mill on Liberty in Morals’ The Enforcement of Morals, 111. 212 Ibid, 14. 213 HLA Hart, Law, Liberty and Morality, 17. 214 Christie Davies, Permissive Britain, 30.

prison officers, killing by shooting or an explosion, and the committing of more than one murder, on separate occasions.215 Davies observes that so-called crimes of passion, or in his terms, ‘impulsive murders’ that mainly occurred in ‘family contexts’ did not carry the death penalty under the Act. For Davies, this is simply because ‘impulsive murders’ were understood to be unaffected or undeterred by rationally evaluated consequences, such as the death penalty.

Just husbands killing their wives: the state’s view of homicide

However, there is another explanation for the hierarchy of murder as assessed by the state.

Uncovering this explanation simply involves observing which murders the state values.

Maintaining murder by shooting a police officer as a capital crime, although not a husband’s

‘impulsive’ beating to death of his wife is not surprising, given the little value typically ascribed by the state to ‘domestic violence’, even lethal.216 Despite limited protests over the execution of

Ruth Ellis, the state initially chose to maintain punishment of those murders it valued. It might

have appeared to have responded to community demands in 1955, but in fact, Ellis’s crime

would have attracted the death penalty under the 1957 Act, because she had used a gun to kill

David Blakeley. Such a murder was deemed to warrant the death penalty until 1965, when the

Wilson Labour government finally curtailed the ‘hanging lobby’. The Homicide Act illustrates

value judgements unrelated to pure practicality or utilitarianism, in the development of the

legislation of consent. The state’s motivation during the permissive period was more complex

than simply one of utility or ‘causality’. In particular, motivating factors of state crisis, fragility

and embarrassment in the face of error, as in the wrongful executions of Bentley and Evans, are

important. In the case of capital punishment, the state reconfigured its control over the death

penalty in 1957 with a display of power by way of assessing, cataloguing and ordering the

punishment in fresh legislation. In 1965 the Labour Party further displayed its power to end

capital punishment, unrelated to the ‘demands’ of the public.

215 Ibid.

An apparent relinquishing the body: the role of the state in the 1960s

The Homicide Act, The Suicide Act, The Abortion Act 1967, and divorce legislation in 1969, could be interpreted as the state relinquishing its claim on the individual citizen’s body. In the case of divorce, this involved a lesser claim on where that body chose to spend the night

(effectively, in whose castle the English woman chose to make her bed, for it was women overwhelmingly who took advantage of divorce reforms). The Obscene Publications Acts of

1959, 1964 and 1968 could be interpreted as lightening the state’s hold on an individual’s

morality, in terms of the limited right to view ‘obscenity’ deemed to possess artistic merit. The

outcomes of the Wolfenden Report are in a similar vein. Although targeting street-walking

prostitutes, the Street Offences Act 1959 confirms the traditional legal position that prostitution

is not a crime, but rather, a choice of adults to be made in private (away from the streets). Along

with the Street Offences Act 1959, the Sexual Offences Act 1967 appears to emphasise that the

state is not concerned with the private sexual choices of adults. In fact, the Sexual Offences Act

is so dependent on privacy, it actually defines privacy for its purposes: there being no third party

present to observe, participate or even able to see acts of sex between two men.

The abundance of the legislation enacted in this short period is undoubtedly impressive. Hall

also notes the Family Planning Act 1967 and legislation governing theatre censorship and

Sunday entertainment in 1968. However, the legislation does not speak for itself. As Hall notes,

the tired cliché of the ‘permissive society’ provides little insight into who was directing the shift

in the way the role of the state was presented and viewed. Was society permissive? Or was the

state simply relinquishing some of its reach and responsibility in line with an ethos of capitalist

laissez faire? Perhaps the state was implementing an ideological agenda in some form of the

Millian liberal ideal. In addressing the legislative reforms noted above, Hall notes that

216 The now infamous quotation from Commander Hatherill of Scotland Yard in 1954 sums up the contemporary position of the state well: ‘There are only about twenty murders a year in London and not all of them are serious – some are just husbands killing their wives’ (Higgins: 1996: 267).

descriptively, we may agree that the tendency of the legislation was to shift things in the general direction of a less rigid, looser, more “permissive” moral code. But the term has a stronger connotative value. Did the legislation also express a society where moral standards and values were being eroded? Did it perhaps, even promote such a trend? Here we are no longer in the realm of pure description, but have entered that terrain where the term “permissiveness” performs the role of a powerful ideological counter.217

Public demands? A comforting myth of the permissive state

In hindsight, it is appealing to assume that the post-war general public or ‘society’ simply

demanded permissive reforms. It could be thought that the newly affluent, post-war

constituency had made demands on its political and legal representatives to satisfy its own

civilised and libertarian vision of modern justice. However, Lord Arran observed in the House

of Lords in 1965 that the death penalty was abolished despite opinion polls indicating that the

general public was ‘two to one against’ abolition.218 Although it is suggested by Frank McLynn and others that the cases of Bentley and Evans revolutionised attitudes toward the death penalty,219 it would appear that this was not a general revolution. The polls prompted Lord

Lloyd Colton to ask in the House of Lords in 1965: ‘how can parliament and this House dare to pass this measure and at the same time seek to argue it is in any way a democratic reflection of the wishes of our people?’.220 In fact, aside from limited protests over Ruth Ellis’s execution,

‘society’ appears not to have been particularly vocal in making any liberal or libertine demands during Philip Larkin’s naughty permissive period. Indeed, protests were directed against

Christine Keeler and Mandy Rice-Davies when they appeared to testify in court after the

Profumo scandal broke in 1963.221 Importantly, members of the public do not seem to have been

perceived by the state as making demands for themselves. And yet, it was these very individual

selves who constituted the focus of what was being addressed by the ‘legislation of consent’.

217 Stuart Hall, ‘Reformism and the Legislation of Consent’, 2. Original emphasis. 218 Lord Arran, House of Lords, Hansard, 28 October 1965, 684. 219 Frank McLynn, ‘The Rough Drafts of Official History’, 44. 220 Cited by Lord Arran, House of Lords, Hansard, 28 October 1965, 682-83. 221 Christine Keeler with Douglas Thompson, The Truth at Last: My Story (London: Sidgwick & Jackson, 2001), 217.

In the year following the decriminalisation of suicide, few people were aware the law had changed.222 The demand for abortion was perceived by the state to be so low in 1967, and as emanating from only ‘marginal categories’ of women, that no provisions were made in the

National Health Service to deal with the extra influx of abortion patients after its legalisation.223

And although the Wolfenden Committee recommended the partial decriminalisation of men’s homosexual sex in 1957, its recommendations were shelved for a decade on their release, with the excuse that clearly they were ‘ahead of public opinion’.224 The role of ‘demand’ in

implementing the Sexual Offences Act is unclear. Jeffrey Weeks downplays the impact of

individual reformers, crusaders and lobby groups on 1960s homosexual law reform. Weeks’s

apparent Marxist analysis (teleology included), is that the capitalist economy and general

atmosphere of affluent post-war Britain could no longer contain the contradictions inherent to

overt sex discrimination. On this analysis, equality seeped into sex law. For Weeks,

law reform came about because it was finally seen that the contradictions in the social position of male homosexuals were absurd. These contradictions exploded not so much through the work of ardent reformers, but because of their own inherent instability in the more relaxed social climate of post-war affluent Britain. Law reform was a product of the long post-war boom in capitalist society.225

However, it is unclear within the analysis of Weeks where the contradictions fit regarding the increased discrimination against female prostitutes, at the gain of their legally untouchable male

clients, which was embodied in the Street Offences Act 1959. And yet, the Street Offences Act

supposedly was of the same ethos and motivation as the Sexual Offences Act. Weeks does not

address women’s prostitution in the same manner as men’s homosexual sex, so it remains

unclear why certain contradictions rose inevitably to ‘explode’ in his opinion, while others were

institutionalised and made more orthodox.

222 Nigel Walker and Michael Argyle, ‘Does the Law affect Moral Judgments?’ (1963-64) British Journal of Criminology, Vol 4, 572. 223 Victoria Greenwood and Jock Young, ‘Ghettos of Freedom, an Examination of Permissiveness’ in Permissiveness and Control: The Fate of the Sixties Legislation, 170. The NHS was caught unprepared for the demand. In 1967, before the Act, there were 9700 abortions notified in the NHS (Brookes: 1988: 13). During the first year of the Act, 37736 abortions were notified in the NHS, increasing at a rate of 170 each month (Chief Medical Officer of the Department of Health and Social Security: 1969: 83).

Homosexual Law Reform and Permissiveness.

Antony Grey was Secretary of the Homosexual Law Reform Society (HLRS) from 1962-1970.

The Society had been formed in March 1958, encouraged by the release of the Wolfenden

Report to press for reform and after a recurrence of ‘old-style “chain” prosecutions’ of

homosexual men in the Spring of 1958.226 In contrast to Weeks, Grey identifies the work of the

HLRS in raising public awareness through public letters and meetings and in lobbying

parliament for law reform, as important factors in the securing the passage of the Sexual

Offences Act. However, Grey identifies the ‘objectionable and discriminatory’ clauses of the

Act as not the work of the HLRS, but of the Act’s parliamentary sponsors who, in order to have

the behaviour of consenting adults decriminalised, even in a limited way, at times ‘bent over too

far backwards’ to appease their opponents.227 In Grey’s analysis, the HLRS, a sympathetic minority and a few key Parliamentarians were responsible for the permissive shift of the Sexual

Offences Act 1967.228 Grey in no sense suggests a mass demand for change, either by the

general public or by the HLRS, which confined itself to lobbying a few key politicians.229 In

Chapter Five I provide a detailed analysis of the passage of the Sexual Offences Act to illustrate that it was not the outcome of widespread or popular demand.

Rather than any general public demand for reform, Grey suggests a general ambivalence of society towards homosexuality in the 1960s. In 1965 he wrote that a recent pilot survey conducted for the Albany Trust had revealed among the respondents ‘a tentative picture of

224 ‘Move To Amend Prostitution Law Likely - Marking Time On Other Issues’, The Times, 8 November 1957, 4. 225 Jeffrey Weeks, Coming Out, 156. 226 Antony Grey, ‘Homosexual Law Reform’, in Grey Speaking Out, 30. 227 Antony Grey, Quest for Justice, 106. 228 Antony Grey, ‘Homosexual Law Reform’, 29. 229 Ibid, 34.

widespread confusion, uncertainty, outright misunderstandings, and contradictory ideas’.230

Apparently many people did not realise that the law addressed homosexual men differently from lesbians. When told, they considered this to be unfair.231 A considerable proportion of the

sample thought that homosexual behaviour was legal between adults: ‘even people who do not

know what the law is tend to accept the ideas of the Wolfenden Committee on the subject as

being more in accord with common sense’.232 But they were not marching in the streets for

change. They were largely indifferent to the troubles of homosexual men.

The modern individual: another comforting myth of the permissive state

Eric Hobsbawm downplays the role of the state in directing social change generally in the

1960s, yet unlike Grey he posits the individual citizen as instrumental in affecting change. For

Hobsbawm, the ‘cultural revolution’ of the 1960s was about individuals triumphing over society

and the state responding to catch up to their progress:233

though permissive laws undoubtedly made hitherto forbidden acts easier, and gave far more publicity to these matters, the law recognised rather than created the new climate of sexual relaxation….things now became permissible….not only by law and religion, but also by customary morality, convention and neighbourhood opinion.234

But it is not clear why, in Hobsbawm’s analysis, the values of the individuals changed so

dramatically during the decade: what or who directed the value shift (other than an implied

capitalism and consumerism, which I would argue is not sufficient without accompanying

230 Antony Grey, ‘Attitudes to Homosexuality’, in Grey Speaking Out, 78. The Albany Trust is the pioneer national counselling agency for homosexuals and other ‘minority’ sexualities, which today still operates out of London. See http://www.albanytrust.org.uk 231 Antony Grey, ‘Attitudes to Homosexuality’, 78. 232 Ibid, 78-79. 233 Eric Hobsbawm, Age of Extremes, 323. My emphasis. Eric Hobsbawm was the leading theoretician of the British Communist Party until he left in 1956 to protest the Soviet invasion of Hungary. He edited Marxism Today throughout the 1980s. Hobsbawm believes that ‘whatever the limitations of the 18th century Enlightenment, it was the only principle on which it is possible to demand improvements of rights for every human being’ (Hunt: 2002). Hobsbawm, along with Jeffrey Weeks, might seem to also be a major ‘target’ of my arguments in this thesis. Again, this ‘targeting’ was unanticipated on my part, when I commenced my research. Is not intentional, or to suggest that his works should in any way be dismissed. Hobsbawm, in his prolific historical work, has provided profound artefacts of a particular, important academic tradition, informed at its genesis by Marxist analysis.

acknowledgment of the state’s active role). The pertinence of Hobsbawm’s distinction between society and the individual is also not entirely clear. Focus on the individual in discussing the

‘permissive cultural revolution’ is common, and often seems to owe much to an implied

‘liberalism’, though for Hobsbawm, capitalism seems to be the agent of individuation rather

than the liberal state. I discuss this conceptual problem in greater detail in Chapter Two.

While the Homicide Act is symbolic and important to this period, the protests for Ruth Ellis

were of a different concern than the object(s) of the legislation of consent. Stuart Hall is careful

to remind us that ‘the abolition of the death penalty and the legislation on homosexuality had

profoundly different roots – different histories, belonging to different historical durees’.235 The protests for Ellis were less about the rights of adults to consent, than they were about humane treatment of the non-consenting. We should also not overlook possible religious motivation and interest in protesting Ellis’s execution, for those who believed it was the role of God to make such decisions. Hall notes that the role of religious opinion and religious organisation in creating a climate ‘favourable to reform’ is often neglected in discussions of this period.236

However, having said that, I would also note that any demands for a secular retreat from deciding God’s work that might have been made in regard to capital punishment, did not come from the top. In 1957 the Archbishop of Canterbury clarified in the House of Lords that in the opinion of the Church, the state

has a right in the name of God and of society to impose the death penalty, whether as an act of justice, or for the protection of its own citizens from violence….there is no immorality in it at all. It may be wise or unwise, expedient or inexpedient but it is not against the law of God or the doctrines of the Christian Church.237

Conclusions: the ruse of the demands of the permissive society

234 Eric Hobsbawm, Age of Extremes, 323, 334. 235 Stuart Hall, ‘Reformism and the Legislation of Consent’, 7. 236 Ibid, 4. 237 In Christie Davies, Permissive Britain, 33.

The state was not acting for the Church in repealing capital punishment. And it appears that, at least in some spheres, the state’s ideological retreat from legislating questions of ‘consent’ was not driven overtly by its perception of public demand either. Separating the undemanding masses from the riotous crowds of 1968 appear to be a host of legal reforms that explicitly directed society’s expectations for the state. And yet, Hall warns, in examining the legislative trend of the 1950s and 1960s, that ‘no single, uncontradictory tendency is to be discovered.

Even where, in retrospect, we may identify a general pattern to this reformism, we must attend fully to the variety of specific circumstances operating in each particular example. Their unity is necessarily a complex one’.238

While the origins and object of the permissive state certainly are complex, and cannot be

reduced to a single theme, the role of state crisis, fragility and embarrassment in the face of

error in the case of capital punishment and scandal in the case of men’s homosexuality should

be examined at length, and in context with each other. What remains comprehensively

unanswered is the question, what was the state doing, in what Eric Hobsbawn calls the

‘freewheeling sixties’?239 To address this question, I now turn to the Wolfenden Report to provide an in-depth analysis of the primary artefact of the permissive state. The permissive mythology would tell us that the permissive state was concerned with progress away from our repressive Victorian past, democratically spurred by the successful demands of the permissive society, and permissive individuals. But the brief outline I have provided here of the state of the

1950s and 1960s does not support the mythology.

238 Stuart Hall, ‘Reformism and the Legislation of Consent’, 7. 239 Eric Hobsbawn, Age of Extremes: A History of the World 1914-1991, 321.

Chapter two: Starting with sex, The Wolfenden Report

By breaking the law, the offender has touched the very person of the prince; and it is the prince – or at least those to whom he has delegated his force – who seizes upon the body of the condemned man and displays it marked, beaten, broken. (Michel Foucault 1977)240

A good place to respond to my question is sex, which today is one of the more sacred rights of

privacy and non-interference: how did we come to realise this sacred right, and did the state

direct its realisation? The relationship of men’s homosexual sex to the state arguably underwent

the most dramatic change of all the ‘permissive legislation’ moves in the 1960s.241 As Peter

Richards asks, ‘how did an aspect of human conduct, traditionally regarded as unspeakable and horrific, come to be legally permissible after a campaign which succeeded in the remarkably short time of fifteen years?’.242 I return now to Wolfenden to determine the object of this

apparently dramatic shift of the permissive state.

In this chapter I examine the Wolfenden Report, as an artefact of the new, ‘permissive’ state. I

explain the motivation of the state in initiating the ‘investigation’ of the Wolfenden Committee,

and highlight the punitive intentions of the state for women who work as prostitutes and how,

ironically, the Wolfenden Report has come to be interpreted as concerned with the freedom of

individuals. Along with what the Wolfenden Report means for the state, I also note the ways in

which its mythology concerning freedom has been integrated into academic and common

discourse on the nature of prostitution and privacy.

240 Michel Foucault, Discipline and Punish: the Birth of the Prison, 48-49. 241 The Abortion Act 1967 could be argued to have even more profoundly affected heterosexual women’s lives than the Sexual Offences Act affected gay men’s lives. However, the legal status of abortion had a long history of dispute in the Courts, stemming from 1939 when gynaecologist Alec Bourne was acquitted of procuring an abortion for a 14 year old victim of rape. The Abortion Act was the result of protracted antagonism. The Sexual Offences Act was the dramatic first legislative step to repeal homosexual sex crimes. For a history of abortion law see Sally Sheldon, Beyond Control: Medical Power and Abortion Law (London: Pluto Press, 1997). 242 Peter G Richards, Parliament and Conscience, 79.

I argue that the object of Wolfenden was not the liberation of sex. It was aimed at the control

of recalcitrant bodies in the form of women’s prostitution and men’s homosexual sex. This

object is not far removed from that of the majority decision in Brown, criticised as

paternalistic, illiberal and archaic in its goal of the control of bodies. I note that Brown

involves a search for the sexual subject in law, a search that was also the project of

Wolfenden, each a stage in the greater Victorian project of the creation of sexual identities.

And yet, due largely to the success of the mythologies of the 1960s state, Wolfenden today is

commonly celebrated as the genesis of permissiveness.

In this chapter I also investigate the common claim that the Wolfenden Report may be

understood as part of a program of reform motivated by ideals of the ideology of liberalism. It is

very common for Wolfenden, and in particular the Sexual Offences Act, to be described in

terms of ‘liberalism’ or a liberal ideology. In my experience, the tag of liberalism has been

applied with little thought or justification to the reforms of the 1960s. Here I want to investigate

this claim, and illustrate the holes in the simplistic theory that would posit 1960s sex law reform

as purely, or simply, related to ‘liberalism’.

Sir David Maxwell Fyfe: the man who made sodomy legal

The Wolfenden Committee was appointed in August 1954 to address the Churchill

government’s concerns over street walking prostitutes in London, and to examine men’s

homosexual offences. John Wolfenden, Vice-Chancellor of Reading University, was chair and

the 15 Committee members included MPs, doctors, lawyers, academics, representatives of

different churches. And three women. The Committee met for 62 days to interview witnesses

and to consider the ‘extent to which homosexual behaviour and female prostitution should come

under the condemnation of the criminal law’.243

243 Wolfenden Report, 9.

The Wolfenden Committee was instigated by the Home Secretary Sir David Maxwell Fyfe who was embarrassed by attention in the press given to women soliciting. Fyfe noted that demands had been made in ‘parliament, in the press and from leaders of the Churches for more effective measures to check these evils and, more recently, for the appointment of a Royal Commission to enquire into certain aspects of this problem and to review the existing law’.244 Prosecutions of women had increased substantially from 1938 to 1952.245

Carol Smart supports the usual explanation for Wolfenden, that a ‘moral panic’ accompanied the Coronation over the number of tourists visiting London and the ‘shameful reputation’ the capital was acquiring as ‘vice centre of the Western World’.246 For Smart, this reputation ‘was

not welcomed at a time when a new young Queen had acceded to the throne and it was also felt

that undesirable, mafia-type figures would be attracted to Britain’.247 However, in this analysis it is unclear exactly who is supposed to have been panicking – the general public or the state? And it is unclear (aside from mafia figures) with which aspects of prostitution was the general

concern: was the shame over the behaviour of men, women or the police?

Maxwell Fyfe was unsure as to whether the increased arrests of women reflected increased

prostitution or ‘more persistent and aggressive solicitation on the part of women, which is met

by increased activity on the part of the police’.248 But he was not interested in finding out.

Although Fyfe observed that an inquiry as a Royal Commission had been ‘demanded’ of the state, his personal interest was to remove women from the streets, not to determine the reasons for their prostitution or their increasing arrests. Fyfe wanted to amend the law that he viewed as

244 David Maxwell Fyfe, ‘Sexual Offences’, Cabinet Office Record, 17 February 1954, PRO: CAB 129/66. 245 Ibid. 246 Carol Smart, ‘Law and the Control of Women’s Sexuality: The Case of the 1950s’, in Bridget Hutter & Gillian Williams (eds), Controlling Women: The Normal and the Deviant (London: Croom Helm, 1981), 49-50. 247 Ibid. 248 David Maxwell Fyfe, ‘Sexual Offences’, Cabinet Office Record, 17 February 1954, PRO: CAB 129/66.

‘unworkable’, to make it easier to arrest women and to increase penalties on their arrest. He had in mind a model for the law based on his observations of the USA where soliciting was illegal.

A Committee was favoured by the government, over a Royal Commission in order to avoid compliance with the tradition of publishing of evidence.249 The Wolfenden Committee was formed as a public relations exercise, for Fyfe feared that his punitive assault on women would be controversial. He wrote in his Cabinet memorandum:

Such an amendment of the law would, however, be highly controversial and would strongly be opposed by the women’s organizations. I believe, therefore, that legislation on these lines could not be introduced without the support of a strong independent commission or committee.250

With no apparent sense of irony or corruption, the Home Secretary advocated an ‘independent’ committee that would deliver his recommendations.

As well as the embarrassment of women’s street prostitution in London, Fyfe acknowledged

that there had recently been a ‘serious increase’ in homosexual offences, and that this ‘problem’

should also be addressed by the Committee.251 Fyfe noted that

There is a considerable body of opinion which regards the existing law as antiquated and out of harmony with modern knowledge and ideas, and, in particular, represents that unnatural relations between consenting adults, which are not criminal except in Great Britain and the United States, should no longer be criminal in this country, and that the criminal law, in dealing with unnatural, and with normal sexual relations should confine itself to the protection of the young and the preservation of public order and decency.252

Fyfe was not interested in altering the laws that criminalised men’s homosexual sex, but he speculated, if an inquiry were held into prostitution there would be ‘strong criticism’ if no comparable investigation were made into homosexual offences.253 Fyfe pre-empted the contrary

recommendations of the Wolfenden Committee, warning in 1954 that an inquiry ‘might lead to

249 Leslie J Moran, The Homosexual(ity) of Law, 50. 250 David Maxwell Fyfe, ‘Sexual Offences’, Cabinet Office Record, 17 February 1954, PRO: CAB 129/66. The women’s organizations included the National Council of Women and the Association for Moral and Social Hygiene. 251 Ibid. 252 Ibid.

a belief that the Government thought that the law ought to be changed, and would later expose us to the danger of receiving embarrassing recommendations for altering the law’.254 Helen Self

notes that once the ‘embarrassing recommendations’ were delivered in 1957, Fyfe became so

strongly opposed to homosexual law reform that he refused to sit at the Cabinet table when the

subject was being discussed, and in his capacity as Lord Kilmuir in the House of Lords, Fyfe

issued ‘dire warnings’ of the consequences of reform during the second reading of the Sexual

Offences Bill in 1965.255 To the end of the passage of legislation Fyfe campaigned in the House of Lords for maintaining sodomy as an offence, arguing for the repeal of gross indecency provisions.256

John Wolfenden and freedom

The Wolfenden Report is written in terms of an inquiry: conducted, canvassed and consulted.

The terms of reference given by Fyfe to John Wolfenden are not publicly known. Wolfenden

writes unrevealingly of a chance meeting on a train with the Home Secretary where they

discussed his chairing the Committee, ‘side by side’ on Fyfe’s sleeping berth.257 However the intentions of Fyfe are clear in Cabinet documents: to have a committee reach an independent conclusion that matched his own ‘personal obsession with the dilemma’ of street prostitution.258

For Helen Self, what was required of the ‘independent’ committee was ‘not so much a recommendation for ways of speeding up the “merry-go-round” of arrest, conviction, fine and return to the streets, but something more subtle: a law that would effectively banish women from the streets altogether’.259 For Self, Fyfe ‘seems to have had no great awareness of the

253 Ibid. 254 Ibid. 255 Helen Self, Prostitution, Women and the Misuse of the Law, 173-74. 256 The Earl of Kilmuir, House of Lords, 21 June 1965, Hansard, 303-305. As Lord Kilmuir, Fyfe is quoted as having said ‘I am not going down in history as the man who made sodomy legal’ (Stewart: 2000). 257 John Wolfenden, Turning Points, 129. 258 Helen Self, Prostitution, Women and the Misuse of the Law, 77. 259 Ibid.

possible consequences of this policy’, such as the institutionalisation of pimps and call-girl systems and the distancing of women from the reach of social workers and assistance.260

The Committee presents its terms of reference as the express problem of determining the

‘essential elements of a criminal offence’:261 what is it about prostitution and homosexual sex that should be criminal (if anything at all)? In the Report, from the outset ‘problems’ of sexuality and sexual practice are designated problems of morality rather than criminal harm.

Care was taken by the Committee not to intrude into the designated realm of the moral, for this was determined to be beyond the jurisdiction of the criminal law. According to the Committee,

‘we clearly recognise that the laws of any society must be acceptable to the general moral sense of the community if they are to be respected and enforced. But we are not charged to enter into matters of private moral conduct except in so far as they directly affect the public good’.262

Rather than dictate morality as was the practice in the old days, the task of the Committee was to determine to what extent prostitution and homosexual behaviour affected the ‘public good’.

In regard to prostitution however, the inquiry was limited. With homosexuality a ‘process of intellectual inquiry and exploration’ took place but with prostitution, ‘no such journey was thought to be necessary and it was not required within the terms of reference’.263 The

ambivalence toward investigating prostitution reflects an orthodox acceptance of prostitution as

inevitable if not natural, as reflected in an historical reluctance to criminalise commercial

heterosexual sex. Investigating why men use women as prostitutes for sex was deemed by the

Committee to be ‘impractical’.264 In contrast, homosexuality was understood by Fyfe as

unnatural, an aberration that warranted an inquiry to ‘throw light on why there has been such a

260 Ibid. 261 Wolfenden Report, 9. 262 Ibid. 263 Helen Self, Prostitution, Women and the Misuse of the Law, 89. 264 Ibid.

large increase in this class of crime’.265 I argue that the light being thrown on homosexuality

was aimed to constitute a hitherto legally invisible homosexual subject whose interests might be

dictated and whose behaviour might be controlled by the state. The need to constitute the

subject in the case of homosexuality meant that ‘the imbalance between the amount of attention

paid to homosexuality and that paid to prostitution, as separate legal concerns, was extended to

the quantity and quality of attention given to the constituent elements of the problem of

prostitution’.266 It has also meant that the overwhelming media and academic focus on

Wolfenden has been men’s homosexuality. This, despite the impetus for the Committee being the prostitution of women.

John Wolfenden and his Committee reached different conclusions from the Home Secretary concerning homosexual sex and the law.267 Therefore we might accept that Wolfenden was not

acting entirely tendentiously on behalf of the state in drafting his Report, despite the dictated

outcomes concerning prostitution. We might accept that John Wolfenden is ‘speaking the truth’,

or at least ‘his truth’ about the Report, at least in regard to homosexuality. So what does

Wolfenden say about the object of what Weeks calls the blueprint for the 1960s permissive

legislation?268 Wolfenden is explicit that ‘freedom within the law’ was the ‘watch-word’ for the

Committee.269 He explains that the Report was concerned with establishing principles for the law’s relationship to morality. In addressing the ‘problems’ of men’s homosexuality and women’s ostentatious street prostitution, there was a fundamental dilemma perceived by the

Committee and others, about the role of the law with regard to morality:

There were those who maintained, in their memoranda to us, that the two were, or ought to be, identical; the law’s function, we were told, was to assert, defend,

265 David Maxwell Fyfe, ‘Sexual Offences’, Cabinet Office Record, 17 February 1954, PRO: CAB 129/66. 266 Helen Self, Prostitution, Women and the Misuse of the Law, 89. 267 Committee member James Adair dissociated himself from the findings and recommendations of the Report concerning homosexuality and decriminalisation (and some recommendations about the ancillary aspects of prostitution such as those concerning ‘middlemen’ and premises): Wolfenden Report, 117-123. 268 Jeffrey Weeks, Sex, Politics and Society: The Regulation of Sexuality Since 1800, 2nd Edition, (London: Longman Group Ltd, 1989), 242. 269 John Wolfenden, Turning Points, 130. My emphasis.

enforce morality – that is what the law is for. Oppositely, it was argued that in matters of personal morality the law should have no place at all unless and until immoral behaviour endangered society at large.270

Again the tensions between the old and the new vision for the state are evident. For John

Wolfenden, the latter argument prevailed and ‘personal morality’ was used to excuse the new state’s apparent retreat from scrutinising and regulating sex. Wolfenden clearly understood his recommendations in terms of progress. He discussed law reform as ‘civilised tolerance’,271 and

made reference to a trajectory of enlightenment he perceived to be operating within society.

Observing in 1976 that ten years had lapsed between the Report’s release and the Sexual

Offences Act, Wolfenden surmised,

certainly public opinion, as reflected in Parliament changed very considerably over those ten years. When I originally presented the report to ministers, I was told, “Extremely interesting: but, you know, you are way out in front of public opinion”. By the end of ten years it had caught up.272

However, as I discuss in Chapter Five, it is not clear that in 1967 parliament was acting on

behalf of public opinion.

Getting liberal with ‘liberalism’: another myth of the modern state

The Wolfenden Report is often understood in terms of freedom. For Eric Hobsbawm, the Sexual

Offences Act 1967 reflected the triumph of the individual to be free to pursue his own

individual desires:

The major significance of these changes was that, implicitly or explicitly, they rejected the long-established and historical ordering of human relations in society, which the social conventions and the prohibitions expressed, sanctioned and symbolised.

What is even more significant is that this rejection was not in the name of some other pattern of ordering society, though the new libertarianism was given ideological justification by those who felt it needed such labels, but in the name of the unlimited autonomy of individual desire. It assumed a world of self-regarding individualism pushed to its limits. Paradoxically the rebels against the conventions

270 Ibid, 135. 271 In Eustace Chesser, Live and Let Live: The Moral of the Wolfenden Report, 7. 272 John Wolfenden, Turning Points, 143-45. My emphasis.

and restrictions shared the assumptions on which mass consumer society was built, or at least the psychological motivations which those who sold consumers good and services found most effective in selling them.273

For Hobsbawm, the 1960s were about the ‘spontaneous, unorganised, anti-authoritarian and

libertarian’ actions of the protagonists of the ‘cultural revolution’.274 Hobsbawm downplays or

disregards the role of the state in directing cultural values. His focus in assessing this historical

period which, like Weeks before him, he calls the Golden Age, is the ‘student rebels’ of 1968 to whom I alluded earlier, and whom I identify at least in part, as products of the earlier legislative shift by the state.275

For Hobsbawm, the story of the permissive state is the story of the permissive society being

successful in demands for more freedom: the rebels made libertarian demands, although guided

ostensibly by Marxism, and the state eventually responded. The rebels were the categorical

Marxist individuals individuated by capitalism (which suited consumerism). Thus the ‘cultural

revolution can best be understood as the triumph of the individual over society, or rather, the

breaking of the threads which in the past had woven human beings into textures’.276 The binary

categorisation Hobsbawm makes of individual versus society, relates to the tensions evident in

the change in the way suicide is addressed by the state. The old view was: citizens obliged to

the Crown. The new view is: individuals obliged only to themselves.

Hobsbawm privileges capitalism and consumerism in his analysis of the 1960s to explain the

dramatic individuation of society. However, for many other authors, the sexual ‘freedom’ of the

1960s state is related to an interpretation of liberalism. For example, US law Professor Martha

Chamallas has argued that the hallmark of the Wolfenden Report is the ‘importance it attaches

273 Eric Hobsbawm, Age of Extremes, 333-334. As noted, Hobsbawm’s primary outlook and analysis is Marxist. 274 Ibid. 275 Jeffrey Weeks, Coming Out, 173, Eric Hobsbawm, Age of Extremes, 334. 276 Eric Hobsbawm, Age of Extremes, 334.

to individual freedom of choice’.277 In her analysis, the object of freedom is linked to a liberal agenda. For Chamallas, the Wolfenden Report ‘epitomised the ideology of the era’,278 an ideology she identifies as liberalism.279 Chamallas describes the most salient feature of the

‘liberal’ view of sex as epitomised in the Wolfenden Report and the ‘distinction it draws

between morality and legality. Under this view sexual conduct is quintessentially private

conduct with which the law should not interfere’.280

In discussions of Wolfenden, the concept of liberalism is often invoked uncontroversially, with

the distinction between morality and harm and the Report’s emphasis on personal choice

accepted as predicates of the ideology. Sometimes a concept of utility as a predicate of

liberalism is also invoked to describe the Report, such as in the work of Stuart Hall and Jeffrey

Weeks. However, utility would seem to contradict the supposed emphasis of the Report given to

‘choice’ and freedom. In this section of this chapter I want to briefly discuss the idea that the

Wolfenden Report is a ‘liberal’ document. In my observations, this idea is so common that it is

routinely accepted with little question or justification. I take issue with this simplistic and rarely

explained invocation of liberalism, as if the heterogenous monolith is easily, clearly and

commonly understood.

Here I do not provide an in-depth discussion of liberalism and its manifestations. I am concerned

with the Wolfenden Report and the ways in which it has been represented. At the outset I

explained that I was interested in determining ‘what was the state doing’ in the 1960s. To make

this determination, it is important to unravel the popular mythology and token rationales

surrounding the Wolfenden Report. Was it a liberal document? If so, what was the intention of

its liberal agenda: freedom, or expedient utility? For whom was the freedom intended? These are

277 Ibid, 5. 278 Martha Chamallas, ‘Consent, Equality and the Legal Control of Sexual Conduct’ (1988) Southern California Law Review, May, 61, 582. 279 Ibid. 280 Ibid, 580.

essential questions to my quest. As noted, the Home Secretary who instigated the Committee had no intention of decriminalising men’s homosexual sex. The Wolfenden Committee reached this pragmatic conclusion after deliberating over evidence of the practice of arrest and the futility of gaoling homosexual men.281 Along with limited decriminalisation, the Wolfenden Report recommends the implementation of research into the aetiology of homosexuality, so that it might be treated, medically or otherwise.282 Wolfenden did not aim to enfranchise homosexual men in the modern discourses of equality and rights. So from where do the ideas about Wolfenden and liberalism arise?

In Sex, Politics and Society, Jeffrey Weeks describes the Wolfenden Report in terms of ‘sexual liberalism’.283 Weeks appears to imply a connection to the ideology of liberalism itself, and continues to describe the Report as the ‘period’s most influential liberal statement’.284 I do not contest the influence of the Report, but its connection to liberalism is not self-evident. Finally, a few pages later, Weeks explains the connection he infers:

The basic principle behind this was a selective re-interpretation of legal utilitarianism. Jeremy Bentham a century and a half earlier had classed homosexuality as an “imaginary offence”, dependent on changing concepts of taste and morality, and the utilitarian tradition, best expressed in John Stuart Mill’s On Liberty, had generally argued that the only justification for legal intervention in private life was to prevent harm to others.

The Wolfenden Report, following on from this, argued that the purpose of the criminal law was to preserve public order and decency, and to protect the weak from exploitation. It was not to impose a particular pattern of moral behaviour on the individual. It followed that there were areas of life which were no concern of the criminal law, even though they might be of moral concern to individuals and society. What they proposed therefore was a partial retreat of the law from the regulation of individual behaviour…..The Report recognised the argument that homosexuality might be a threat to the family, but so, it was suggested were adultery and divorce, and these were not illegal.285

281 Leo Abse referred to imprisonment for homosexual offences as ‘therapeutically as useless as incarcerating a sex maniac in a harem’ (in Grey: 1992: 113). 282 Wolfenden Report, 77. 283 Jeffrey Weeks, Sex, Politics and Society, The Regulation of Sexuality since 1800 2nd Edition, 239. 284 Ibid. 285 Ibid, 242-43.

The theories of Weeks have been influential. In 1989 he refers to the Report as the blueprint for the permissive legislation of the 1960s.286 In 1997 Australian political scientist and gay sexual liberal, Barbara Sullivan credits Weeks for her understanding of the Report as a blueprint for liberal reform in its focus on individual rights and respect for citizens’ privacy.287 Although

Sullivan does not expand explicitly on its ‘liberal’ nature, it would appear to relate for her to its establishment of a new separation of law and morality:

From the late 1950s onwards the idea that the law should protect and defend a public morality was increasingly displaced by the idea that individual consent should be a central consideration in determining the nature of law which governed sexual practice – and if that practice was conducted in private - then, increasingly it was not deemed appropriate for the criminal law to intervene.288

For Sullivan, ‘liberalism’ seems to relate to emphasis placed on the individual’s right to make private sexual choices. Frank Mort writes of 1960s homosexual law reform as ‘liberal reforms’, but does not elaborate on liberalism.289 Stuart Hall is more precise, and identifies in Wolfenden

‘a selective resurrection of legal utilitarianism’, that he connects to a broader ‘astonishing

revival of legal laissez faire’.290 Jeffrey Weeks provides one of the rare explanations for why he considers the Report to be related to liberalism, so it is to Weeks I now return.

Liberalism and homosexuality

The description by Weeks of liberalism confuses a number of factors. First he refers to Jeremy

Bentham’s inspired defences of homosexuality in the 18th and 19th centuries, which he connects

to Bentham’s perhaps more famous defence of utilitarianism. Bentham’s arguments for the

decriminalisation of homosexual sex are far more radical than those of Wolfenden almost 150

years later. Bentham is credited with having authored the earliest scholarly essay on

286 Ibid, 242. 287 Barbara Sullivan, The Politics of Sex: Prostitution and Pornography in Australia Since 1945 (Cambridge: Cambridge University Press, 1997), 98. Sullivan writes with a particular interest in prostitution from the sexual liberal tradition, and pays deference to Jeffrey Weeks in her work. 288 Ibid, 101-102. 289 Frank Mort, ‘Sexuality: Regulation and Contestation’, 40. 290 Stuart Hall, ‘Reformism and the Legislation of Consent’, 14.

homosexuality in the English language, around 1785.291 He left about 300 manuscript pages on

homosexuality and the law, arguing that homosexuality is a matter of ‘taste’, an ‘imaginary

offence’ that reflects the antipathy of law makers to pleasure.292 Bentham noted that for most moralists and religionists, ‘pleasures that are allowed of, are never allowed for their own sake but for the sake of something else which though termed an advantage or a good presents not to any one so obviously and to them perhaps not at all, the idea of pleasure’.293 The consummate pleasure of homosexuality poses the threat, according to Jeremy Bentham.

Despite Bentham’s interest in homosexuality, John Stuart Mill is more commonly invoked in descriptions of Wolfenden. Weeks identifies Mill as a utilitarian, and interprets On Liberty as

indicative of this perspective. The adjective ‘utilitarian’ seems to be used almost as loosely as is

‘liberal’. Mill’s relationship to utilitarianism is complex.294 Mill’s greater concern was freedom, as evidenced not least of all in On Liberty, which Weeks seems not to note. For Mill,

the moral rules which forbid mankind to hurt one another (in which we must never forget to include wrongful interference with each other’s freedom) are more vital to human well-being than any maxims, however important which only point out the best mode of managing some department of human affairs.295

For Weeks, the Millian character of Wolfenden’s retreat from punishing the homosexual ‘threat to the family’, lies in the acknowledgment that despite this threat, the role of the law is not to impose a ‘particular pattern of moral behaviour on the individual’.296 Weeks appears to link this

argument to Mill’s harm principle: one may only legitimately act to curtail the freedom of a

person to curtail harm to others. However, Weeks confuses the principles of freedom and utility,

apparently both within Mill’s work and within the state’s intentions for Wolfenden. The

291 Louis Crompton, ‘Jeremy Bentham’s Essay on “Paederasty”: an Introduction’ (1978) Journal of Homosexuality, Vol 3, No 4, Summer, 383. See Jeremy Bentham ‘Offences Against One’s Self: Paederasty’, edited by Louis Compton (1978) Journal of Homosexuality, Vol 3, No 4, Summer, 389-406. 292 Jeremy Bentham, ‘Paederasty: Part 2’ (1978) Journal of Homosexuality, Vol 4, No 1, Fall, 296. 293 Ibid. 294 Mill writes in his autobiography of his distance from his father’s and Bentham’s utilitarian philosophy as a mere reasoning machine, toward a theory and philosophy of a ‘greater cultivation of feeling’ (1971: 41-69 & 128-131). 295 John Stuart Mill, ‘Utilitarianism’ in On Liberty and Other Essays edited by John Gray (Oxford: Oxford University Press, 1991), 196.

acknowledgment by the state that it has no right to impose morality may be understood as in deference to freedom. Privileging this freedom beyond, and in contradiction of the observation that ‘immorality’ poses a threat to greater society (the family), could be in direct contradiction of the utility principle, which advocates the greatest happiness for the greatest number.

Although Bentham had argued in 1785 that homosexuality was an ‘imaginary offence’, the state of 1957 had not reached this conclusion at all, in Weeks’s own analysis. It maintained the notion of homosexuality as a moral threat, but (if we accept the interpretation of it as acting ‘liberally’), chose to privilege freedom in this instance. As noted, John Wolfenden assures us that ‘freedom within the law’ was the ‘watchword’ for the Committee - not maximum happiness, nor utilitarianism. And yet, the absolute freedom of Wolfenden appears difficult to locate. Along with decriminalising strictly private homosexual sex for men, the Wolfenden Committee advocated the heightened punishment of women who solicit sex in the streets for money. I suppose, for John Wolfenden, freedom is embodied in the implicit ruling that prostitution in so- called private is not prohibited, and thus the implicit subject status of the male client in law is honoured. Similarly, the maintained (and in practice heightened) punishment for men soliciting homosexual sex in public might be understood in terms of a balance being struck between freedom and utility. Jeffrey Weeks has his own idiosyncratic description: the absolutist versus the utilitarian views of the law.

The protestations of John Wolfenden aside, the argument for freedom is not convincing to me.

The legitimisation of men’s homosexuality, or the enfranchisement of homosexual men, was not the object of the Wolfenden Report, which states, ‘it is important that the limited modification of

the law which we propose should not be interpreted as an indication that the law can be

indifferent to other forms of homosexual behaviour or as a general licence to adult homosexuals

296 Jeffrey Weeks, Sex, Politics and Society, The Regulation of Sexuality since 1800 2nd Edition, 242-43.

to behave as they please’.297 Freedom for John Wolfenden might relate to a subject other than the homosexual man or the prostituted woman: Was it the freedom of the heterosexual man to continue to solicit prostituted sex unencumbered? Was it the freedom of the state to be free from regulating sex through the law?

Most members of the Wolfenden Committee were medical, religious or bureaucratic professionals who appeared to possess a pragmatic sense of what we might term today ‘harm minimisation’, or indeed, social utility. It is far from clear that any Committee members were motivated particularly by a grand sense of a Millian liberal ideology that advocates freedom.

However, freedom is the term with which John Wolfenden describes the Committee’s agenda.

Wolfenden himself does not speak of liberalism. So from where do liberal connotations first arise? It is possible that Hart and Devlin bear responsibility here.

Hart and Devlin: the 20th century debate of the old and the new states

The idea that the Wolfenden Report is related to liberalism and JS Mill can be traced to the debates between Hart and Devlin of the late 1950s and early 1960s. At the request of Lord

Goddard, Lord Devlin gave evidence to the Wolfenden Committee in his capacity as a judge of the Queen’s Bench. Devlin was in favour of law reform as advocated by Wolfenden. Although he identified homosexuality as ‘usually a miserable way of life’ from which it is the duty of society to protect its youth, Devlin believed there is no good ‘the law can do that outweighs the misery that exposure and imprisonment causes to addicts who cannot find satisfaction in any other way of life’.298 Devlin noted the futility of the English criminal justice system in

combating homosexual ‘vice’:

Punishment will not cure and because it is haphazard in its incidence I doubt if it deters. Those who are detected and prosecuted are unlucky; and the full offence is frequently proved only because one or the other in his weakness confesses. I do not

297 Wolfenden Report, 87. 298 Patrick Devlin, ‘Morals and the Criminal Law’, 6.

think that any judge now imposes a severe sentence in such cases. I cannot myself recollect ever having passed a sentence of imprisonment at all.299

Lord Devlin recommended to the Committee that the ‘full offence’ of buggery should be

maintained but that the offence of gross indecency should be repealed, unless involving a

minor: thus there would be no suggestion that buggery should be tolerated.300 Devlin was in

agreement with what he identified as the fundamental premise of Wolfenden, that there is a

realm of ‘private morality’ which is not the law’s business, and that there is a fundamental

distinction between crime and sin.301 However in the course of study of the subject Devlin

persuaded himself that he was wrong.302 Devlin’s revised views became public in 1958 after he delivered the second Maccabaean Lecture in Jurisprudence for the British Academy: he presented the lecture as ‘confirmation of the place of the law in the imposition of morality’.303

Lord Devlin argued that the Maccabaean lecture generated ‘an interest greater than it deserved’, because delivered by a judge.304 The lecture was almost immediately denounced in ‘rather

strong language’ by Professor HLA Hart, who argued for the separation of the moral sphere

from the law.305 For Devlin, the public debates between himself and Hart ‘came at a time when

the conflict between old and new moralities was being given a sharper edge’,306 when the

tensions between the ‘old’ and the ‘new’ view of the state were stark.

Lord Devlin observed that the principle of Wolfenden - that there is a realm of morality that is

not the business of the law - ‘derived its force’ from the teachings of Bentham and Mill.307

299 Ibid. 300 In 1965 Lord Devlin conceded that the Committee was correct in rejecting his proposal, in The Enforcement of Morals, preface. And in fact in 1965 Lord Devlin had come to support the decriminalisation in the Wolfenden model of men’s homosexual sex, and was one of 8 signatories to a letter to The Times supporting law reform on homosexual offences (The Times: 13 November 1965: 11). 301 Ibid. 302 Ibid. 303 Helen Self, Prostitution, Women and the Misuse of the Law, 190. 304 Patrick Devlin, The Enforcement of Morals, preface. 305 Ibid. 306 Ibid. 307 Patrick Devlin, ‘Morals and the Criminal Law’, 6.

Professor Hart was in agreement that the Wolfenden Committee had reached its conclusions

based on principles very similar to Bentham and Mill.308 Yet as Lord Devlin argued, Mill in fact

is not honoured in Wolfenden, nor was Mill honoured in any of the contemporary arguments for

decriminalisation. As I note, Jeremy Bentham argued that homosexuality was an ‘imaginary

offence’. This was not the argument of John Wolfenden and it might not be relevant to the

arguments of Mill. Mill’s arguments for allowing the equal and free expression of that with which we do not agree are not evident in the marginalisation of Wolfenden.

Lord Devlin pre-empted the 1967 arguments for pity that were invoked in parliament to secure homosexual law reform, as failing to honour Mill.309 Devlin wrote, ‘what Mill demands is that

we must tolerate what we know to be evil and what no-one asserts to be good. He does not ask

that in particular cases we should extend tolerance out of pity: he demands that we should cede

it forever as a right’.310 The Wolfenden Report does not honour Mill; it does not even honour the individual, as Hobsbawm, Weeks and others claim; in the final analysis it privileges society and the family and protection from ‘offence’, especially the offence of women.

Devlin argued against the supposed ‘liberalism’ of Wolfenden and is usually understood in the context of his debates with Hart as the protagonist of the ‘old state’, a paternal and anti-liberal patriarch.311 Devlin unwittingly reproduced the arguments of Sir James Fitzjames Stephen’s

1860s debate with John Stuart Mill over the role of morality and the law that I discuss in Section

Two of this thesis. Devlin had not read Stephen’s book Liberty, Equality, Fraternity, nor ‘even heard of it’.312 And yet his arguments were very similar: that state and society have a right (and

308 HLA Hart, ‘The Enforcement of Morality’ in HLA Hart, The Morality of the Criminal Law: Two Lectures, 33. 309 In Chapter Five I explain the use of pity in the passage of the Sexual Offences Act 1967. 310 Patrick Devlin, ‘Mill on Liberty in Morals’, in Devlin, The Enforcement of Morals, 121. 311 For a discussion of why Lord Devlin’s ‘paternalism’ is ‘wrong’ see Russell Blackford, ‘Liberty and paternalism: a reply to Tom Frame’ (2004) Quadrant, June, Vol 8, Issue 6, 40-7. 312 HLA Hart, ‘The Enforcement of Morality’, 35.

responsibility) to prohibit immorality.313 Devlin compared state interest in morality to its interest in treason, with the justification that ‘the reason why a man may not consent to the commission of an offence against himself beforehand or forgive it afterwards is because it is an offence against society’. This was exactly the argument that was to prevail in Brown some 40 years later.314

Hart saw Devlin’s replication of Stephen’s morality as indicative of a contemporary revival of

‘legal moralism’.315 That is, a return to the views of the old. Just as the patriarchs of the House of

Lords in 1993 in Brown have been seen as archaic, illiberal and wrongheaded in their ‘legal moralism’,316 Lord Devlin was characterised by Hart as illustrating the non-progressive, unevolved and old view of the criminal law. On reading Devlin’s lecture, Hart was ‘astonished to find how little the thoughts of English judges had changed on this aspect of the relation between law and morals during the 100 years that separates Lord Devlin’s criticisms of the Wolfenden

Report from Stephen’s attack on Mill’.317

But again the distinction between the old and the new, the liberal and the patriarch, is not straightforward, for it was Lord Devlin who argued with the truth of Mill in his sights. Although he appeared to argue against Mill in his claim that the state has a right to legislate morality (and is criticised by Richard Green and others as ‘attacking’ Mill),318 Lord Devlin noted the purity of

Mill’s thesis, which is not honoured in Wolfenden or by the Sexual Offences Act:

This is the kernel of Mill’s freedom. This is why we must not suppress vice. It is not because it is not evil; Mill thought that it was. It is not because legal suppression would be futile; this argument, favoured by some of Mill’s followers, is not one that he advanced. Nor because Mill thought that in the battle between virtue and vice, virtue would be bound to triumph without the aid of the law.

313 Lord Devlin took as a compliment Hart’s comparison of his work to that of Stephen, in The Enforcement of Morals, vii. 314 Patrick Devlin, ‘Morals and the Criminal Law’ in Devlin, The Enforcement of Morals, 6. 315 HLA Hart, Law, Liberty and Morality (London: Oxford University Press, 1963), 6. 316 David Feldman, ‘The Developing Scope of Article 8 of the European Convention on Human Rights’ (1997) European Human Rights Law Review, Vol 3, 272. 317 HLA Hart, Law, Liberty and Morality, 6 My Emphasis. 318 Richard Green, (Serious) Sadomasochism: A Protected Right of Privacy?, 544.

In some cogent passages he refuted the argument that in spite of persecution truth would always prevail against error; and if truth can be suppressed, so can error and so can vice. When all this is stripped away, the kernel of Mill is just this – that he beseeches us to think it possible that we may be mistaken. Because of this possibility, Mill demanded almost absolute freedom for the individual to go his own way, the only function of society being to provide for him in an ordered framework within which he might experiment in thought and in action secure him from harm.319

This is not the spirit of Wolfenden, and as I illustrate in Chapter Five, neither is it the spirit of the

Sexual Offences Act, which was promoted and mandated through pity. And, lastly, this is not the defence of Mill’s vision for liberty that one might come to expect from the simple caricature of the ‘illiberal patriarch’ that has been sustained into critiques of Brown.320 Unravelling the myths of the main protagonists of the modern state is complex, and is hindered greatly by token references to concepts like ‘liberalism’ that have come to dominate much work on the Wolfenden

Report, and indeed, much work on the relationship of the state to sex in general.

Embarrassment: the mother of invention and the motivation for Wolfenden

Leaving aside the debates over liberalism, I now want to suggest another possible motivation and ideal of the Wolfenden Report. If not liberalism, or freedom, then by what object was the state motivated in ‘examining’ men’s homosexual sex and women’s prostitution in the 1950s?

What is the interest of new ‘state’ in sex? In 1980 Frank Mort identified a radical story of the agenda of Wolfenden and the Sexual Offences Act 1967 that departs from the orthodox tales of progress and permissiveness. Mort warned that the ‘real significance of the legislation has been the precise way in which it changed the law, and more widely, the implications this has had for the political strategies developed by the gay movement, and for the ways gayness is constructed as a category’.321

319 Patrick Devlin, ‘Mill on Liberty in Morals’, 121. 320 Discussing Brown, Ian Freckleton criticises Lord Devlin in contrast to Mill (1994: 69). 321 Frank Mort, ‘Sexuality: Regulation and Contestation’, 39. Original emphasis.

Mort notes the ways in which the Report and subsequent legislation ‘introduce a new relation between what is legally defined as public, and what is private and to be left to self-

regulation….It is a relation which has had real effects on defining the space in which we are

able to operate – politically, culturally and sexually’.322 Again, I would broaden Mort’s analysis

as pertinent to all understandings and experiences of sex – gay or otherwise. Mort argues that

the Report does not envisage

the total abandonment of strategies of regulation. Power is no longer to be exercised through the direct operation of the law, but rather through the mobilisation of a variety of non-legal practices. Henceforward, medicine, “therapy”, psychology and forms of applied sociology are all envisaged as forming new principles of regulation.323

Along with the important ascension of medicine and psychotherapy, I would identify the

defining feature of the ‘Wolfenden strategy’ as the further construction and fortification of

privacy. Indeed, that very Victorian value of privacy. Privacy was upheld and fortified as an

excuse for the state’s apparent lack of action, and as a tool of exclusion in its cloistering of

prostituted women and homosexual men. I argue the motivation for this cloistering was

embarrassment.

In a manner similar to the policy shift addressing capital punishment, the Wolfenden Report

signifies a reconfiguration of state control in the face of embarrassment. The Wolfenden

Committee as the ‘heir’ to the Victorians324 performed a part in ‘the great Victorian project of

sexual classification, demarcation and regulation, prompted by embarrassment and wounded

pride. Both Carol Smart and Frank Mort point to the 1953 Coronation and international civic

scrutiny and embarrassment over ‘vice’ as instrumental in the formation of the Wolfenden

Committee.325 The vulnerability of the British state in general in this period must also be taken

322 Ibid. 323 Ibid, 43-44. 324 Frank Mort, ‘Mapping Sexual London’ (1999) New Formations: Sexual Geographies, No 37, Spring, 113. 325 Carol Smart, ‘Law and the Control of Women’s Sexuality: The Case of the 1950s’, 49-50. Frank Mort, ‘Cityscapes: Consumption, Masculinities, and the Mapping of London’, 889.

into account. In 1949 India was lost. The 1956 Suez crisis shook the Tory party to ‘its foundations’.326 Richard Davenport-Hines links greater Imperial anxieties directly to the fear of

homosexuality. He writes that in 1951,

Britain lost its political control over Iran and Egypt, leading to a crisis of Imperial self-confidence comparable with that of the 1890s….In the ensuing decade, as the British Empire disintegrated in Malaysia, Africa, and Cyprus, fears about military loss of control were over and over again identified with sexual lack of control: the disintegration of heterosexuality, it was reiterated, had been a feature of the disintegration of the Roman Empire, as it would be for the British Empire.327

The parallels with Victoria are stark. Not since Oscar Wilde had the state been so embarrassed

about ‘vice’ and not since Queen Victoria had the British State had such an opportunity for

display as in the Coronation. The state responded to the embarrassment in a similar manner as it

had in the face of child prostitution and white slavery scandals in the 1880s – with a display of

power.328

However, rather than further enforce the law (after all, arrests were the cause of the

embarrassment in the first place) in the 20th century the state tried a new tactic, what Foucault identifies as a politico-judicial spectacle. The public spectacle of the three year tenure of the

Wolfenden Committee – the hearings, the canvassing of experts, the ritual – acts in a way like

Foucault’s ‘public execution’. Foucault notes the ceremony by which a

momentarily-injured sovereignty is reconstituted. It restores the sovereignty by manifesting it at its most spectacular….it deploys before all eyes an invincible force. Its aim is not so much to re-establish a balance as to bring into play, as its extreme point, the dissymmetry between the subject who has dared to violate the law, and the sovereign who displays his strength….

And this superiority is not simply that of right but that of physical strength of the sovereign beating down upon the body of his adversary and mastering it: by breaking the law, the offender has touched the very person of the prince; and it is the prince – or at least those to whom he has delegated his force – who seizes upon

326 Helen Self, Prostitution, Women and the Misuse of the Law, 205 327 Richard Davenport-Hines, Death and Punishment: Attitudes to Sex and Sexuality in Britain Since the Renaissance (London: Collins, 1990), 300. 328 In Chapter 8 I discuss the Criminal Law Amendment Act 1885 and the white slave scandals of the 1880s.

the body of the condemned man and displays it marked, beaten, broken. The ceremony of punishment, then, is an exercise of “terror”.329

Foucault’s observations on the nature of the public execution capture the nature of Wolfenden

and my argument that the permissive state performed a re-configuration of itself, rather than an

abdication of control. In the 1950s the momentarily injured sovereign re-established control by

way of a public display of a grand bureaucratic ‘investigation’, an investigation as a show trial

that had its primary outcome pre-determined. In Foucault’s analysis the ‘public execution did

not re-establish justice; it reactivated power’.330 In the case of Wolfenden, the state reacted with

a ‘classic piece of British government machinery’ that was designed to disempower and

neutralise scandal and controversy331 in a display of authority, hierarchy and order. The reactivation of power centred on the creation and solidification of the sexual subject as an object of control. As the fate of women as prostitutes was directed and sealed by the Home Office, the

Committee was left to its own devices concerning homosexuality and produced the homosexual subject in law, the ‘body of the condemned man’ who is displayed publicly as ‘marked, beaten, broken’.

Recalcitrant bodies: controlling the sexual subject in Wolfenden

Sir David Maxwell Fyfe wanted to conceal women’s prostitution from the public view by punishing women. His crackdown on women resulted in the apparent anomalous ‘liberation’ of men’s private homosexual sex from the criminal law, as the juggernaut of the Wolfenden

Committee and the ‘sensational’ press332 pushed towards an ‘equality’ approach to regulating

public sex. Fyfe provides one clear example of when the state was not acting for

permissiveness, and yet in the twists and turns of state mythology its outcomes have come to be

interpreted and justified in this way. The partial decriminalisation of men’s homosexual sex is

329 Michel Foucault, Discipline and Punish, 48-49. 330 Ibid, 49. 331 Frank Mort, ‘Mapping Sexual London’, 96.

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in fact not anomalous with the persecution of women, for I argue that homosexual men were not aimed to be liberated by decriminalisation. Rather, as Antony Grey observed in 1969, the homosexual man was constituted as a sexual subject to be the object of control similar to the

common prostitute.333

In one sense, the decriminalisation of men’s homosexual sex may be understood as an accident, or at least as contrary to the initial intentions of the state. And yet, I argue, the irony is that the motivation and object of this accident is not so far removed from the antipathetic ideals of

Maxwell Fyfe, in that it was aimed at control. Unravelling in detail how this accident occurred is the puzzle of Wolfenden. That this accident has been downplayed, or passes unnoted in histories of the period, is a puzzle of the myth making power of the state. The ‘freedom’ of the

Wolfenden Report is difficult to locate, despite the testimony of the Committee Chairperson.

The Report was motivated at the highest level by punitive intentions.

I do not detect a modern permissive freeing of sex as the object of the Report. Rather, the

Committee’s perspective involved the regulation of sex by way of what Bert Archer identifies as the very Victorian fascination with ‘collecting, cataloguing, categorising, naming’,334 that brought sexual practices ‘into greater visibility; by producing an extended discourse on the problems’.335 Rather than freeing sex, the Wolfenden Report constituted the creation (or in the case of prostitution, the solidification) of the sexual subject who could be targeted and regulated by the state as an object of control. The sexual subject was born out of a process of ‘labelling and exclusion’ that was ‘continually at work during the presentations of evidence and deliberations of the Committee’.336 The homosexual subject was catalogued to be controlled in

the sense that Foucault identifies as the goal of modern disciplinary regimes which understand

332 David Maxwell Fyfe, ‘Sexual Offences’, Cabinet Office Record, 17 February 1954, PRO: CAB 129/66. 333 Antony Grey, ‘Privacy and the Outsider’, in Speaking Out, 22. 334 Bert Archer, The End of Gay (and the Death of Heterosexuality) (London: Fusion Press, 2002), 64. 335 Frank Mort, ‘Cityscapes: Consumption, Masculinities and the Mapping of London’, 891.

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the importance of the ‘docile body’: that ‘the body that is manipulated, shaped trained’ is the body that ‘obeys, responds, becomes skilful and increases its forces’.337

The Wolfenden Report confirms the subject (and the docile body) of the archaic ‘common prostitute’ in modern rhetoric and law, despite contemporary feminist protest against this move.338 ‘Common prostitute’ is a very vague legal category used to harass women for over a

century under the guise of vagrancy legislation.339 Helen Self criticises the Committee for

persecuting women by making both loitering and soliciting criminal offences that only a female

‘common prostitute’ can commit, ‘making it impossible for her to step outside her home

without risking the possibility of arrest’.340 She identifies the Wolfenden recommendations as having been used tendentiously in the Street Offences Act 1959 to

strengthen the impact of a law which incorporated the “common prostitute” as a member of a legally defined group of women and placed a judicial stamp of approval on her social stigmatisation….

This enabled legislators to formulate normally unacceptable measures (including a presupposition of guilt, arrest without warrant on police evidence alone and the prostitutes’ caution) in order to ensure prosecution.341

Along with embedding the psychoanalytical slander of the ‘common prostitute’ into modern

legislation, the Wolfenden Committee is responsible for the creation of the male homosexual as

a legal entity to be regulated, targeted and controlled. Prior to the Sexual Offences Act 1967 acts

of men’s ‘homosexuality’ did not exist in law. Crimes of men having sex together fell under

those of ‘sodomy’, ‘buggery’ or ‘gross indecency’. Traditionally the sodomite was not

understood as a homosexual man; the danger of the sodomite was not his object choice, but ‘that

336 Helen Self, Prostitution, Women and the Misuse of the Law, 110. 337 Michel Foucault, Discipline and Punish: the Birth of the Prison, 136. 338 In Chapter Four I address in detail the contemporary feminist objections to the use of the phrase ‘common prostitute’ in legislation. 339 Judith R Walkowitz, Prostitution and Victorian Society: Women, Class and the State (London: Cambridge University Press, 1980), 14. 340 Helen Self, Prostitution, Women and the Misuse of the Law, 205. 341 Ibid, 9.

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his desires had no focus’.342 As Cynthia Herrup argues, sodomy represented ‘desire unfettered, appetite ruling the mind rather than ruled by it. Sodomy was less about desiring men than about desiring everything’.343 Following on from the rise of the homosexual identity in the 19th century

that Foucault identifies as the product of medical labelling and identification,344 the Wolfenden

Report, in its own obsession with labelling and classifying, introduced the language of ‘acts of homosexuality’ into statute. While Foucault contends the homosexual was born in medical discourse in 1870, he first appears as a target of the criminal law in 1967 – a target to be scrutinised, surveyed, regulated and punished in his transgressions at the direct advice of the

‘freedom’ inspired Wolfenden Committee.345

In the 20th century, the Sexual Offences Act 1956 consolidated the 1861 Act and the

Labouchere Amendment and maintained the Victorian penalties for ‘buggery’ and ‘gross indecency’, as well as inventing the crime of persistent male importuning for an ‘immoral purpose’.346 ‘Homosexuality’ was not labelled in law and the Victorian crimes of no

homosexual ‘identity’ remained in statute until the Wolfenden Report was acted on in 1967 and

the homosexual subject was targeted, thus born in law.347

342 Cynthia B Herrup, A House in Gross Disorder: Sex, Law and the 2nd Earl of Castlehaven (New York: Oxford University Press, 1999), 33. 343 Ibid. 344 Michel Foucault, The History of Sexuality Volume One: An Introduction, 42-43. 345 For Foucault the homosexual of the 19th century identity was classified into existence in medical discourse (1976: 42-43). David Halperin has identified Foucault’s Victorian shift in the nature of sexual prohibitions as involving forms of self-regulation, ‘not by legislating standards of behaviour and punishing deviations from them but rather by constructing new species of individuals, discovering and “implanting” perversions, and thereby elaborating more subtle and insidious means of control’ (in Phillips & Reay: 2002: 47). The agent of control in the 19th century was medicine. In 1893 in Psychopathia Sexualis Krafft-Ebing deployed the term ‘homosexual’ as a ‘way of imagining the genital body as a very specific body: as a congenital state’ (Moran: 1996: 7). In 1897 in Sexual Inversion, English physician Henry Havelock Ellis distinguished the ‘pervert’ from the ‘invert’. Jeffrey Weeks credits the 19th century sexologists, particularly Ellis, as instrumental in the creation of an individual homosexual identity in the 19th Century that has persisted in one form or another until today (1986: 33). 346 Leslie Moran, ‘The Homosexualisation of English Law’ in Carl Stychin and Didi Herman, Legal Inversions: Lesbians, Gay Men and the Politics of Law (Philadelphia: Temple University Press, 1995), 12. 347 Ibid,19. Despite the medical homosexual identity gaining ground in the 19th century, the homosexual man did not appear in law. His crimes were not his; they were crimes of indecency and abomination, but they were not understood in terms of his legal (or personal) identity. The ‘detestable and abominable vice of buggery committed with mankind or beast’ had been made a criminal (no longer Ecclesiastical) offence in 1533 (Hyde: 1970: preface). It was punishable by death until its maximum sentence was

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Speaking of the 20th century homosexual subject: creating the homosexual subject in law

The Wolfenden Committee was operating amid the legacy of the Victorian medical birth of the homosexual and his 20th century fortification.348 In 1948 Alfred Kinsey solidified the popular understanding of the ‘homosexual’ with Sexual Behaviour in the Human Male.349 It was the

thesis of both Freud and Kinsey that ‘everyone is bisexual’, therefore potentially homosexual.

Freud rejected the view of the sexologists who demarcated the homosexual as a ‘special category

of person’, claiming that every person is capable of making a homosexual object choice.350

Freud has been interpreted as understanding homosexuality as a symptom of ‘arrested

development’, narcissism, to which we all are vulnerable.351 For Kinsey, we all exist somewhere,

variously, on a six-point scale between heterosexual and homosexual exclusivity. Yet ironically

both authors have been co-opted (perhaps misunderstood) in the quest for the solidified identity

of the discrete, innate homosexual individual. Chris Waters observes how the theories of the

sexologists and the psychoanalysts were muddled, confused and appropriated throughout the

commuted to life imprisonment under the Offences Against the Person Act 1861. In 1885 The Labouchere Amendment was added to an Act dealing with the age of consent for heterosexual girls and anti-brothel provisions to criminalise an undefined ‘gross indecency’ between men. Oscar Wilde’s trials in 1895 are conventionally depicted as a turning point in the history of the homosexual identity. For example, Weeks credits the public process of the trials and the prosecuting legislation with creative power (Weeks: 1989: 103). The more detailed identification and persecution of homosexual activity by the law and the courts expedited the emergence of the homosexual identity by the end of the 19th century. And yet, the Labouchere Amendment did not define the illegal act as a homosexual offence, but as an act that is ‘an outrage on decency’ (Moran in Stychin and Herman: 1995: 12). The law was silent on homosexuality. Wilde did not argue in terms of homosexuality; Wilde defended the love of an elder for a younger man, as ‘the noblest form of affection’ (Dowling: 1994: 1). Importantly for my analysis, the law did not address Wilde in terms of homosexuality, for the love ‘that dare not speak its name’ was silent beyond Shakespeare. Homosexual men were invisible and historically, buggery itself was unutterable in law. Coke decreed in the early 17th century that if buggery is to appear in the law then it must be described by the words ‘not to be named amongst Christians’ (inter christianos non nominandum)’ (Moran: 1996: 31). Not only was the homosexual invisible in law, his crimes were unutterable. 348 Sigmund Freud publicised both the concepts of homosexuality and heterosexuality in Three Essays on Sexuality, published in 1905 (1991). In the essays heterosexual and homosexual appeared in public as Siamese twins, the first good, the second bad, ‘bound together in life in unalterable antagonistic symbiosis’ (Katz: 1995: 65). By the 1950s psychoanalytical accounts of the aetiology of homosexuality had come to dominate much official thought on the subject; Freudian arguments were made by advocates of law reform and advocates of repressive ‘treatment’ alike (Waters in Doan & Bland: 1998: 165). 349 Alfred C Kinsey et al., Sexual Behaviour in the Human Male. 350 Chris Waters, ‘Havelock Ellis, Sigmund Freud and the State’, in Becky Conekin, Frank Mort & Chris Waters (eds), Moments of Modernity, Reconstructing Britain 1945-1964 (London: Rivers Oram Press, 1999), 168. 351 Ibid.

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first half of the 20th century, despite their beliefs about homosexuality being very different in

profound respects.352

Within this confused legacy the Wolfenden Committee produced the homosexual subject of the

law, to be identified and targeted once and for all by the Sexual Offences Act. The Wolfenden

Committee orchestrated a shift by the state in addressing buggery to addressing crimes of the

homosexual subject. ‘Buggery’ did not express the contemporary mores and needs of a modern

social and legal order depicted in terms of ‘public order, public protection, public safety, justice

and equity’.353 Although the word ‘buggery’ appears in the Sexual Offence Act 1967, it is parenthetical, a predicate of homosexuality. The Act states:

(1) notwithstanding any statutory or common law provision, but subject to the provisions of the next following section, a homosexual act in private shall not be an offence provided that the parties consent thereto and have attained the age of twenty-one years.

It clarifies:

(7) For the purposes of this section a man shall be treated as doing a homosexual act if, and only if, he commits buggery with another man or commits an act of gross indecency with another man or is party to the commission by a man of such an act.

The Wolfenden Committee sought to ‘constitute (and strictly regulate) a coherently defined homosexual’.354 In the 20th century the Wolfenden Committee performed a function similar to

Foucault’s productive medical gaze of the mid 19th century. Wolfenden fortified and enhanced the classification and hence the production of the individual homosexual identity in law. For

Leslie Moran, the Committee’s examination of testimony, evidence and expert advice constituted a ‘complex apparatus that brings together technologies for observing, questioning,

352 Ibid, 166-169. 353 Leslie Moran, The Homosexual(ity) of Law, 21. 354 Carl Stychin and Didi Herman, Legal Inversions, xii.

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listening, formulating and recording’.355 For Foucault, the control of recalcitrant bodies

necessitates an

uninterrupted, constant coercion, supervising the processes of activity rather than its results and it is exercised according to codification that partitions as closely as possible time space, movement. These methods, which made possible the meticulous control of the operations of the body, which assured the constant subjection of its forces and imposed upon them a relation of docility-utility, might be called “disciplines”.356

In order to secure the docile response of the recalcitrant homosexual the discipline of

Wolfenden performed a meticulous investigation aimed at producing a list of ‘homosexual offences’ in an attempt to install a new ‘configuration of the law’.357 Once having identified sexual practices, the Committee analysed their association with ‘homosexuality’ as an identity, to produce the docile body of the homosexual in its own terms.

Consistently the state has been careful not to legislate explicitly against homosexuality as an identity (or any identity per se).358 However for Paul Baker the identification of acts of homosexuality with the identity itself is intrinsically linked – particularly since the era of

Wolfenden. Baker notes how the modern concept of identity emerged in sociological literature

in the 1950s, made popular by Erik Erikson.359 In this model, an identity can be ‘acquired’ in that it is a conscious or internalised adoption of socially imposed, or socially constructed roles’.360 The law performs such an imposition and for a homosexual man to be comprehended he must rely on ‘many of the same linguistic devices for framing homosexuality’ as the state.361

And so,

one trait unites all gay men together – perhaps it is the only trait that they can all be said to share - and that is attraction (physical and romantic) to other men. How this

355 Leslie Moran, ‘The Homosexualisation of English Law’ 15-16. 356 Michel Foucault, Discipline and Punish, 137. 357 Carl Stychin and Didi Herman, Legal Inversions, 5-6 & 14. 358 Paul Baker, “Unnatural Acts”: Discourses of Homosexuality with the House of Lords Debates on Gay Male Law Reform’ (2004) Journal of Sociolinguistics, Vol 8, No 1, 103. 359 Ibid, 102. 360 Ibid. 361 Frank Mort in reference to the testimony of Peter Wildeblood to the Wolfenden Committee (1999: 109).

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attraction manifests itself can vary across individuals. Not all gay men have anal sex (not all men who have anal sex identify as gay). However, despite this, anal sex has become one of the main signifiers of homosexuality, particularly in homophobic discourse.362

The (covert) targeting by the state of the homosexual identity in precedence of simply

‘homosexual acts’ has meant that ‘in practice, the criminal status of homosexual acts has often

been extended towards anyone who owned or was suspected of owning a homosexual identity,

regardless of whether or not they had sexual relationships’.363 It has also meant that in common understandings, popular and academic, the law’s interest in sex has been understood in terms of its interest in identities. Frank Mort writes that the Wolfenden Committee is ‘best remembered as the body which recommended the partial decriminalisation of male homosexuality’.364 Mort’s

remarks illustrate the widespread acceptance of the productive outcomes of Wolfenden: its

production of the homosexual subject and of ‘homosexuality’ as a discourse predicated by acts

and behaviours.

The ‘fact finding’ mission of Wolfenden was concerned with ‘establishing the fact of the

offence, then the sexual desire and thereby the sexual identity’.365 Once the offences of

homosexuality were listed and identified, the Committee then relegated them and their actors to

legitimacy only in the strictly demarcated zone of the private. Subject status was aimed at

facilitating control of the object, for the homosexual ‘as an embodied object of law is implicated

in the production of the homosexual as an embodied subject of law’.366

Conclusions: the facts of Wolfenden

After Wolfenden, sex was not increasingly more tolerated. It was hidden. Following the Street

Offences Act 1959 penalties for women soliciting increased dramatically. And after the Sexual

362 Paul Baker, ‘“Unnatural Acts”: Discourses of Homosexuality with the House of Lords Debates on Gay Male Law Reform’, 103. 363 Ibid. 364 Frank Mort, ‘Cityscapes’, 889. My emphasis. 365 Leslie Moran, ‘The Homosexualisation of English Law’, 19.

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Offences Act 1967 arrests and convictions for homosexual offences increased, and sentences were longer for those men who dared to transgress the new laws that separated the public

English man from the private homosexual.367 Leslie Moran goes as far as to argue that the

Wolfenden Committee aimed to eradicate the homosexual man. By recommending that certain homosexual offences should be decriminalised when they occur in private, the Committee

‘hoped that homosexual acts might disappear into a space beyond the law’,368 and thus beyond subject status. Moreover, the Committee’s detailed recommendations for treatment of homosexual men for their newly legal acts was hoped to lead to heterosexuality or at least abstinence.369 At the very least, the homosexual man is not welcome in public.

The Wolfenden Report was not motivated by permissiveness or freedom (except in terms of the longstanding freedom in law of men to purchase the sex of women). Wolfenden was aimed at control and it involved the latest stage of the Victorian project of the constitution of the sexual subject, implicitly in the heterosexual male whom might continue to access prostituted sex, and explicitly in the common prostitute and the homosexual man as objects of control. The

‘unfinished revolution’ that is written of by Weeks is in fact the unfinished revolution of

Foucault’s Victorian production of the subject. The triumphant individual of the 1960s ‘cultural revolution’ whom Eric Hobsbawm celebrates was not successful in demands; he was created in the law.

366 Ibid, 13. 367 Jeffrey Weeks, Coming Out, 176. Antony Grey, ‘Privacy and the Outsider: Address to the Parliamentary Civil Liberties Group’ in Antony Grey, Speaking Out, 22. 368 Leslie Moran, The Homosexualisation of English Law’, 21-22. 369 Ibid.

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Chapter Three: Myths of Wolfenden, Our Moral Panics

In a queer sort of way I’m rather looking forward to it. (John Wolfenden 1954)370

There are two important myths about the Wolfenden Report: that it was aimed at liberating sex and morality from the state, and that it was motivated by a reactionary moral panic over sex.

Ironically, aside from the ‘permissive society’, the other phrase employed to describe the social climate in which Wolfenden operated is that of a ‘moral panic’ as used for example, by Carol

Smart.371 According to Barbara Sullivan’s simple analysis, the report was formulated ‘as a

direct response to rising public concerns about the incidence of homosexuality and prostitution

in the mid-1950s’.372 The panic might prove as nebulous as that of the ‘permissive society’, and

the two terms are clearly contradictory. Perhaps the panic of the 1950s was allayed to provide

for the liberation of the permissive society? The two myths of permissiveness and panic, despite

being at apparent odds in terms of their characterisation of the times, share a common thread

that is imperative to the overall mythology of the 1960s state. That is, the great myth that with

regard to Wolfenden and sex, the permissive state gave us what we wanted.

In this chapter I explore one basic myth about Wolfenden: that it was spurred by a general

public moral panic. In Chapter One I argued that the legislation of consent and the Wolfenden

Report were not aimed at responding to public demands. In Chapter Two I argued that the

agenda of Wolfenden was not a permissive freeing of sex. In this chapter I note how the wishes

of the public have been manipulated and used to excuse the actions of the state, particularly in

its assault on women as prostitutes. I note how the myths of Wolfenden concerning a moral

panic over sex have infiltrated academic discourse to the detriment of women. The myth of the

permissive state is that in the 1960s we got what we wanted. I have already argued that any

370 John Wolfenden cited in Leslie J Moran, The Homosexual(ity) of Law, 1. 371 Carol Smart, ‘Law and the Control of Women’s Sexuality’, 49-51. 372 Barbara Sullivan, The Politics of Sex, 98.

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demands that might have made by members of the general public, were not seriously considered

by the state. Here I question whether, despite the mythology of the 1950s cold war paranoia, we

ever really did panic over sex in the ways it has been suggested by the state. The point of this

chapter is not to determine the ‘truth’ of the 1950s moral panic. This is beyond the scope of my

research. Rather, I want to illustrate that the fears and wishes of the public were not the

motivation for the state in homosexual law reform. The general public might or might not, have

been panicking. However, the agenda of the state was not seriously informed by its perception

of public consensus. Does the permissive state, and especially the Wolfenden Report, have

anything to do with the fears and interests of the general public? Or have our so-called fears

been expediently and politically used and manipulated in the mythologies of the modern state?

In this chapter in particular, I might seem to go over old ground. The story of 1950s homosexual

London, the panic, the McCarthy witch-hunt and the police purge has been told over and

over.373 However the story of a general moral panic that is accepted so routinely, as by Barbara

Sullivan above, appears to me incorrect, especially in my observations of the manipulative use of public opinion by the then Home Secretary Sir David Maxwell Fyfe.

Moral panics: defining the 1950s

Stuart Hall maintains the existence of a 1950s moral panic over sex, but claims it was probably misguided and its proponents misled in their concerns over an increase in troubling sexual behaviours.374 Misguided or otherwise, the phenomenon of the heightened and homogeneous

fears and panic of the general public over ‘unnatural’ homosexual sex and ‘all too natural’

prostituted women, routinely goes unexamined in descriptions of the Wolfenden Report and its

373 H Montgomery Hyde, The Other Love (London: Heinemann, 1970), Peter Wildeblood, Against the Law, The Classic Account of a Homosexual in 1950s Britain (1955) (London: Phoenix, 2000), Jeffrey Weeks, Coming Out, Richard Davenport-Hines, Sex, Death and Punishment: Attitudes to Sex and Sexuality in Britain Since the Renaissance, Stephen Jeffery-Poulter, Peers, Queers & Commons: The Struggle for Gay Law Reform from 1950 to the Present (London: Routledge, 1991) 374 Stuart Hall, ‘Reformism and the Legislation of Consent’, 8.

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political environment. Michael S Foldy emphasises the role of Oscar Wilde’s trials in 1895 in the creation and intensification of homophobic panic among the British public. He writes,

I believe the true importance of the trials has to be seen on both real and symbolic levels. Symbolically, they were significant for raising the spectre of ‘homophobia’, and for rousing in the public a (very real) fear of the ‘new’ image of the ‘homosexual’ that emerged from them, an image which effectively fused into an identifiable and recognisable constellation the concepts of male effeminacy, immorality, same-sex passion, decadence, degeneration, criminality, and aestheticism.375

Foldy goes as far as to claim that the effect of the ‘moral panic’ that ‘gripped the nation in 1895 was to cause the heterosexist structures of repression and mechanisms of restraint to be drawn tighter in British society – where they would remain tightly drawn until 1967’.376 Foldy seems

to suggest that the public ‘moral panic’ of 1895 itself was sustained until the late 1960s. If this

is the case, it is in contradiction to notions of the ‘permissive society’, for a permissive society

is hardly one to panic over public sex. The state’s role in directing that cultural shift (rather than

reflecting it) is important and should not be overlooked in favour of a simple analysis focusing

on demand-led public policy. As I have emphasised, the Wolfenden Committee was formed in

1954, with its recommendations made public in 1957. The Suicide Act and the Homicide Act

similarly are products of the 1950s, apparently ahead of any supposed permissive shift in

society. The irony remains: if a general moral panic did drive the Wolfenden Committee, then

the panic was hardly to be allayed by recommendations for decriminalisation.

The perception by the state of public opinion appears to have been contradictory. The basic

recommendations of the Wolfenden Report concerning homosexuality, which today seem

compromised by ‘moralism’ and even homophobia, went unimplemented for a decade with the

excuse that they were ‘ahead of public opinion’.377 This excuse implies that ‘society’ is on a

slowly evolving path toward the more sophisticated and modern, medical-science inspired

375 Michael S Foldy, The Trials of Oscar Wilde: Deviance, Morality, and Late-Victorian Society (London: Yale University Press, 1997), 92-93. 376 Ibid, 70.

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views of the Committee. Its recommendations were not simply acknowledged as different from, or non-reflective of, the views of the public. Rather, they were decreed ahead of the public’s understanding. And yet, as I have noted, in 1954 the Home Secretary was pushed to include men’s homosexual sex in the Committee’s terms of inquiry by the pressure he felt to bring

England into line with those continental nations where ‘unnatural sexual relations’ were not illegal, and where the ‘criminal law is confined to dealing the protection of the young and the preservation of public order and decency’.378 Fyfe presented public pressure not as a moral panic but as sympathy for decriminalisation. But when given the opportunity to decriminalise, the government used the excuse of the general public to deflect this recommendation. Public

opinion was not seriously considered by Fyfe.

I argue that the excuse of a moral panic among the public has been used to justify the state’s

assault on women, by way of the Street Offences Act. Prostitution was always the primary

concern of the Wolfenden Report. The only recommendations of the Wolfenden Report viewed

as warranting express legislation were those concerning street prostitutes. Only the punitive recommendations that focus on women were deemed to be in tune with ‘society’, and were relatively swiftly enforced in the form of the Street Offences Act 1959, an act that was

‘bulldozed’ through parliament in the lead up to a general election when ‘cleaning up the streets’, like most law and order issues, had popular appeal.379

The negative or passive consequences of the Committee for prostitution law (that the act of prostituted sex was not criminalised) were not discussed in parliament or within the media as to their place among popular opinion. With regard to prostitution, the Wolfenden Report was associated with harsher penalties for women who engage in street walking, and possibly for the

377 ‘Move To Amend Prostitution Law Likely - Marking Time On Other Issues’, The Times 8 November 1957, 4. 378 David Maxwell Fyfe, ‘Sexual Offences’, Cabinet Office Record, 17 February 1954, PRO: CAB 129/66. 379 Helen Self, Prostitution, Women and the Misuse of the Law, 205.

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‘wretched’ pimps who profit on them. Harsher penalties to deter street prostitution were argued to be in line with the wishes of the general public. But the fundamental recommendations, that so-called ‘private’ prostitution not be criminalised, and that the harm of prostitution be defined in statute simply as the ‘offence’ of women to uninvolved third parties, were not presented in light of their place in the general consensus. The emphasis in parliament and in the media was squarely that of punishing street walkers, so much so that the release of the Report was reported in the press to have ‘fallen like a “bombshell” on the West End’, with ‘many of the girls [sic] thinking it was now the law’.380 The punitive focus of the report was accepted to the point that

its recommendations were feared to have been implemented immediately into police practice.

While the public supposedly was not sophisticated enough for ‘liberal’ or modern views on

homosexuality, it was perceived to have been sated with sex-specific and selectively punitive

attacks on women.

Stuart Hall notes the contradictions that arise from the various myths of Wolfenden. While

arguing that there was indeed a moral panic, Hall warns that a sentimental gloss of libertarian

motivation has since been cast over this period in history. He laments that recent commentators

appear to have neglected the fact that the Wolfenden Committee was formed in direct response

not to a climate ‘favourable to gaiety, tolerance and beauty’, but to a growing moral panic about

the rise of prostitution and street-walking and the spread of homosexuality.381 Hall is right to note the myth of permissiveness. Rarely is it noted, for example, that John Wolfenden lobbied consistently until the end of his tenure that anal sex between consenting adult men in private remain a crime.382 Together with the Archbishop of Canterbury among others, Wolfenden

argued that there was ‘good reason’ to maintain the criminalisation of the ‘extreme offence’,383 the offence apparently that dare not speak its name. The recommendations of the Report were

380 Patrick Higgins, Heterosexual Dictatorship, 121. 381 Stuart Hall, ‘Reformism and the Legislation of Consent’, 8. 382 Patrick Higgins, Heterosexual Dictatorship, 63. 383 Lord Archbishop of Canterbury, House of Lords, Hansard, 4 December 1957, 757.

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ahead not only of the opinion of the supposedly permissive yet unevolved constituency, but also of that of the enlightened Chair of the Committee.

Derek McGhee cites the report’s recommendations that have gone largely ‘overlooked’ by academics and commentators as evidence of the Committee’s lack of acceptance of homosexuality. McGhee points to the unimplemented recommendations for ‘the development of alternative rehabilitation programmes for homosexual offenders (as opposed to prison

sentences)’ as evidence of a sustained fear of homosexuality.384 Most telling for McGhee is the recommendation that the age of consent for men’s homosexual sex acts be set at 21, which was implemented in the Sexual Offences Act 1967. For McGhee this was intended to

act as a mechanism for involving as many young men as possible who had been apprehended in indulging in homosexual offences with the intention of “treating” their aberrant sexual activities…As a result this legislation is exposed as a particular heteronormative project of protection, that is, the protection of heterosexuals from the threat of homosexuality.385

The analysis of McGhee supports my earlier argument that the object of the Committee was the control of the homosexual man. Perhaps in a desperate bid to identify political champions, John

Wolfenden has since been immortalised as a liberatory modern hero for many gay men.386 The myths of Wolfenden are tenacious.

The Wolfenden Committee was not motivated by ideals of freedom or permissiveness. The distaste of John Wolfenden and his fellow Committee members for homosexual sex and homosexual men has been well documented.387 However the distaste of the representatives of

the state for men’s homosexuality is not evidence of a general moral panic among the public. As

I have shown in Chapter One, in the 1960s at least (before decriminalisation), the public might

384 Derek McGhee, ‘Wolfenden and the Fear of “Homosexual Spread” (2000) Studies in Law, Politics and Society, Vol 21, 66. 385 Ibid, 65-66. 386 In 1997 John Wolfenden was listed as number 45 in the top 500 lesbian and gay heroes in The Pink Paper (The Knitting Circle, Wolfenden). 387 Patrick Higgins, Heterosexual Dictatorship.

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have been largely ambivalent to homosexuality. But at any rate, the perception by the state of the opinion of the general public seems not to have been important in its legislative decisions concerning men’s homosexuality. The public interest in decriminalisation that Fyfe discerned in

1954 was turned on its head and the public’s antipathy for reform was used to excuse inaction from 1957 to 1967. And the public’s supposed panic over women soliciting was used to justify the Street Offences Act in an election year.

Behind the myths that continue to work against women

Understanding the object and the impact of the Wolfenden Report is complex. It is difficult to identify the motivation for the Committee’s inception and the intentions of its parliamentary designers. There is surely more to the story than Fyfe’s one-page 1954 Cabinet Memorandum.

Some Cabinet documents concerning the Committee have been restricted until 2008.388

Moreover, the typical reception on announcement of a parliamentary committee is that a committee is sure-fire indicator of a desire to avoid action. According to Earl Winterton in the

House of Lords, there is

no better method of putting off legislation than by appointing a Committee. It usually does not report for a year or so – sometimes two years, and not until the next Parliament. And whenever the government in power are faced with anything which looks like political dynamite they appoint a Committee.389

Earl Winterton apparently was onto something in his self-professed ‘cynicism’. In the case of

Wolfenden, the Committee took three years to report to a then different Prime Minister after

two Committee members had resigned mid-stream, and it was a decade after publication before

the recommendations on homosexuality were enacted, under a newly elected Labour

government, via a Private Member’s Bill.

Assessing the public’s view of the Report is not straightforward either. That view can hardly be

expected to be homogeneous, or even equally informed or concerned. Patrick Higgins cites an

388 Ibid, 10.

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opinion poll published by the Daily Mirror in 1957 as evidence that the readers

‘overwhelmingly accepted Wolfenden’s recommendations on prostitution’.390 While London residents might have disliked ostentatious street prostitution in their neighbourhoods, their opinions on the men who solicited sex from women and more importantly, their opinions on the actual harm or nature of prostitution are not apparent within the Report’s recommendations, or from any existing opinion polls.

The orthodox histories of Wolfenden are unhelpful in their unwitting replication of the prejudices of the Committee itself. I have already emphasised the legacy of Wolfenden that has informed academic discourse on deviancy, where homosexual men and prostituted women are depicted as having similar or related political interests. Another legacy has been the emphasis on men’s homosexuality in histories and political analyses of this period, to the detriment of women, both within and outside of prostitution. For example, Stuart Hall writes in reference to most of the changes in ‘legislation of consent’ of the 1960s, that lobby groups influential in this climate were ‘particularly narrowly constituted’. For Hall, the interests of the ‘lobbies’ should not be interpreted as reflecting the interests of the general public:

the “lobbies” were pressure groups of a very specific and familiar kind. They were not the outcome of a wide, popular agitation; they were not involved in mobilising their relevant constituencies to stand up and take action for themselves; they did not engage in the kinds of politics designed to create a popular thrust towards reform to which Parliament was obliged to respond.391

Hall gives little credit or even recognition to the work of the various broadly constituted national women’s organizations that protested to John Wolfenden over his treatment of prostitution in the Report. As I argue in Chapter Four, the ‘women’s groups’ were feared by

Wolfenden who wanted to ‘steer his committee away from controversy’ a position he clearly identified with feminism.392 The absence of the ‘women’s groups’ from the usual histories of

389 Earl Winterton, House of Lords, Hansard, 19 May 1954, 740-41. 390 Patrick Higgins, Heterosexual Dictatorship, 117. 391 Stuart Hall, ‘Reformism and the Legislation of Consent’, 4. 392 Frank Mort, ‘Mapping Sexual London’, 98.

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the period again illustrates the myth making power of the state. John Wolfenden dismissed the

‘women’s groups’, thus they are invisible.393

The excited press, the DPP and the purge

Nonetheless Hall is right to note that it is difficult to isolate the interests, concerns and influence of the general public during this period, particularly amid the tabloid of select, crime-focused information with which they were presented, mostly regarding the crimes of men’s homosexual sex but also concerning heterosexual street prostitution. What is apparent is that in the early

1950s the press was having a field-day with the liberalising guidelines set by editors for what could be printed. Journalists did seem to enjoy exploiting this liberalisation through the detailed reporting of police operations, stings and trials of those men found exhibiting themselves in underground urinals, who constituted the focus of press interest. Frank Mort notes the particular passions of Hugh Cudlipp, editor of the Daily Mail and the Sunday Pictorial, as ‘alarmingly provocative’ in his commodification of sexuality in the 1950s.394 For a few years from 1953 vice reports appeared repeatedly in Britain’s mainstream press. The general public might (or might not) have been panicking, but the press was in overdrive.395 Motivated by the new

competition of television to secure ‘increased advertising revenue’,396 journalists were intent on the contrived ‘discovery’ of homosexuality that positioned them as ‘heroic investigators’.397

In the six months from October 1953 more space was devoted to homosexuality in the British press than since Oscar Wilde’s trials in 1895.398 Women’s street prostitution was also

highlighted, with particular emphasis given to London’s perceived seedy character, relative to

other European capitals. The perceived degrading effect of women’s prostitution on London’s

393 Helen Self provides a rare analysis of the impact of the women’s groups on Wolfenden (2003: 165- 213). 394 Frank Mort, ‘Mapping Sexual London’, 96. 395 Patrick Higgins, Heterosexual Dictatorship, 3. 396 Frank Mort, ‘Mapping Sexual London’, 96. 397 Chris Waters, ‘Disorders of the Mind, Disorders of the Body Social: Peter Wildeblood and the Making of the Modern Homosexual’ in Moments of Modernity, Reconstructing Britain 1945-1964, 139.

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tourism and investment industries was also highlighted. The media had shifted their outlook in general since the war. Jeffrey Weeks identifies in the 1950s

a characteristic tendency to emphasise the polarity of the sexes in sociology, psychology, films, advertising, clothes, cosmetics and work situations [along with] a countervailing tendency, and this was to be found in the increased emphasis on sexuality and sexual pleasure which became apparent during this period. The media presentation of woman emphasised her physical characteristics; cosmetics and costume clothed her in glamour and sexual allure.399

The newly cultivated journalistic passion for sex trials, combined with the specific agenda of the government and in particular a few key parliamentarians and bureaucrats paved the way for the Wolfenden Committee’s report. It is very difficult to isolate the general public’s opinion of such matters; even correspondence, such as letters to the editor, at this stage was dominated by high profile organised groups, such as welfare, church or political groups.

The press was also directed by the state’s enthusiastic assault on men and women engaging in publicly solicited sex. There was a clear agenda in the early 1950s on the part of the Home

Secretary, the DPP and the London Metropolitan police service to be seen to be ‘cracking down’ on the visible, public ‘perverts’. Montgomery Hyde’s view, repeated routinely in the usual stories of Wolfenden,400 is that increased policing followed the appointment of Sir

Theobold Mathew, a practising Catholic, as Director of Public Prosecutions in 1944, but that the

assault took off in the 1950s.401 In the usual stories, Mathew is portrayed as an evangelical bigot

of homophobic zeal. However his views on homosexuality and homosexual men were not

straightforward.

As the DPP, Mathew gave evidence to the Wolfenden Committee that he knew ‘before the war,

and now’, a number of ‘genuine homosexuals who are doing no harm to anybody. They are

398 Patrick Higgins, Heterosexual Dictatorship, 3. 399 Jeffrey Weeks, Coming Out, 157-58. I am unsure to which ‘woman’ Weeks refers. He chooses the singular. 400 For example see Jeffrey Weeks, Coming Out, Richard Davenport-Hines, Sex Death and Punishment and Stephen Jeffery-Poulter, Peers, Queers and Commons: The Struggle for Gay Law Reform from 1950 to the Present.

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living with one particular person in the same way as husband and wife might, doing no harm’.402

Mathew was asked by Committee member Gorowny Rees if ‘by living together they are acting anti-socially?’. Mathew answered ‘No. Not two people doing things to each other in private’.403

It seems Mathew’s concern was public sex. He understood a hierarchy of good and bad homosexuals, whom he perceived respectively as genuine and non-genuine. For Mathew, good/genuine homosexuals were monogamous. Bad non-genuine homosexuals were opportunistic and promiscuous, out for public/anonymous sex. Mathew might have been more progressive than John Wolfenden, who asked Mathew, whether ‘genuine’ homosexuals, ‘are not likely in your view and experience to be involved in any of the shocking and repulsive activities that we were talking about earlier?’.404 Mathew answered Wolfenden in a measured response: ‘it would be aesthetically displeasing to me in any event, but I accept that, and again instance these people who I know who have never done a harm to anybody’.405

In the period between 1938 and 1955, homosexual and prostitution offences ‘known to the police’ increased dramatically. Police figures show that, ‘unnatural offences known to the police rose from 134 in 1938 to 670 in 1952; attempts to commit unnatural offences (including indecent assaults) rose from 822 to 3087 and cases of gross indecency during this same period from 320 to 1686’.406 Offences concerning prostitution rose as well. According to evidence submitted to the Wolfenden Committee by the British Medical Association, ‘detected offences by prostitutes have increased a great deal since 1930….The annual average of 1682 cases known to the police in 1930/34 rose to 11693 in 1954, an increase of 695 per cent’.407 The

Association warned, ‘this of course, must represent only a very small proportion of all the

401Montgomery Hyde, The Other Love, 213. 402 PRO: HO 345/9. 403 Ibid. 404 Ibid. 405 Ibid. 406 Earl Winterton, House of Lords, Hansard, 19 May 1954, 738. 407 British Medical Association, Evidence Submitted to the Wolfenden Committee on Prostitution and Homosexual Offences (London: British Medical Association, 1955), 51.

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promiscuous heterosexual activity which takes place’.408 The dramatic rise in arrests and convictions usually is described now in contemporary literature as reflecting an increase in police activity more than any substantial increase in sexual activity.409

The homosexual surge: the great 1950s myth

At the time of the so-called ‘purges’ there was a theory promoted generally that a homosexual

‘surge’ was underway. This theory certainly pre-occupied some men in positions of power, such as Earl Winterton in the House of Lords. However it is unclear whether the theory can be tied to any suggestion of a public moral panic. In assessing the ‘surge’, some blamed the war, others blamed such nebulous concepts as loose morality and selfishness on the part of men. And inevitably, some blamed mothers. Sir Theobold Mathew is supposed to have believed that the lives of young men had undergone ‘complete change’ as the result of the extended duration of education and National Service, creating an unprecedented atmosphere in which homosexuality

‘can be easily acquired and become ingrained’.410 Others were kind enough to consider

homosexuality an illness or genetic infliction, as Oscar Wilde supposedly described his own

sexuality.411 However, it is not clear why the illness had taken hold in the period after the war.

In fact the Wolfenden Report is significant in its dismissal of the idea that homosexuality is an illness, a theory that had some standing in the medically optimistic era of the ascendancy of penicillin and psychotherapy in which the Committee was operating.

Frank Mort notes the role of the war in the 1950s mythologies of homosexuality and other

‘vice’. Although London had not been ‘free from immorality’ during the war, the metropolis and its population were depicted in official propaganda as ‘locked in a single-minded struggle

408 Ibid. 409 Montgomery Hyde suggested that it reflected a conscious tactic for promotion within the police service (1970: 213). 410 Richard Davenport Hines, Sex, Death and Punishment, 299. 411 Montgomery Hyde, The Other Love, 151. According to Jeffrey Weeks, Wilde ‘complained in prison that he had been led astray by “erotomania” and extravagant sex appetite, which indicated temporary mental collapse’ (1989: 105).

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with the enemy’.412 Vice was understood to be the ‘product of a society no longer engaged in

the fight for survival’.413 The cause of the problem was sought in the family and other agents of individual socialisation. The Wolfenden Committee viewed as evidence the 1939 Home Office report of the Psychological Treatment of Crime, based on ‘an investigation’ at Wormwood

Scrubs Prison, which seemed to implicate boys’ schools, the church and of course mothers, in the making of homosexual men. The 1939 report by William Norwood East and WH de B

Hubert ‘focused attention quite specifically on the homosexual inmate population for the first time’ in Britain.414 Applying a blend of sexology and psychotherapy, the team viewed

homosexual behaviour as the outcome of ‘both constitutional and acquired factors’,415 especially mothers. They wrote:

In our present civilisation encouragement has never been overt but various circumstances often have had the same effect. For example, boarding schools and social or religious movements in which close association between members of the same sex act in this direction. In certain families the attitude of parents – for example, those who, desiring a girl, bring up the boy as girlishly as possible or the widowed mother who, through her entirely feminine influence, has much the same effect – tend to produce homosexuality in their sons, not only by fostering tendencies already present perhaps, but….by increasing the chances of homosexual seduction.416

The 1939 Report advocated treatment of certain homosexual offenders to cure them. Optimism

regarding psychiatric treatment for homosexual offenders was widespread in the 1930s, even

though in that decade few of the suggestions about treatment were implemented.417 In the 1950s

the Wolfenden Committee was enthusiastic about the development of rehabilitation programs

for homosexual offenders.418 No such exegesis was entertained by the Committee for determining why men used prostituted women for sex; no treatment for ‘promiscuous’ male

412 Frank Mort, ‘Mapping Sexual London’, 93. 413 Ibid. 414 Chris Waters, ‘Havelock Ellis, Sigmund Freud and the State’, 172. East was the Chief Medical Inspector of Prisons for England and Wales, and Hubert a prison psychotherapist. 415 Ibid. 416 Norwood East and WH de B Hubert, Report on the Psychological Treatment of Crime (London: HMSO, 1939), 86. In Wolfenden Committee Evidence, PRO: HO 345/9. 417 Ibid. 418 Derek McGhee, ‘Wolfenden and the fear of the “Homosexual Spread”: Permeable Boundaries and Legal Defences’, 65.

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clients of heterosexual prostitution was considered. The use of women in prostitution was taken as a given and natural phenomenon.

The Kinsey Report

The Kinsey Report on Sexual Behaviour in the Human Male was published in 1948, solidifying the popular understanding of the modern ‘homosexual man’. Kinsey was an entomologist who despite his own professed interest in ‘pure research’, was later considered to be a ‘covert crusader’ for what he considered sexual tolerance.419 The Kinsey Report as it is known, is based on interviews with a sample of around 5300 white men in the United States about their sexual practices.420 The Report is novel and inventive in its promotion of the model of graded or gradual sexuality. Kinsey maintains that all men feature somewhere on a scale between exclusively homosexual and exclusively heterosexual, and that many are clustered somewhere in the middle.

The reception of Kinsey’s report on male behaviour has been used as ‘evidence’ of the 1950s moral panic over homosexuality, though somewhat bizarrely. According to Richard Davenport-

419 Ben Wattenberg, ‘FMC Program Segments 1930-1960. Social Science in America's Bedroom Alfred Kinsey Measures Sexual Behaviour’, First Measured Century Segment, Public Broadcasting Station, website sourced at http://www.pbs.org/fmc/segments/progseg10.htm. Sourced 29 May 2003. Kinsey’s techniques for measuring children’s sexuality through the use of paedophiles have been challenged recently as child abuse by Judith Reisman who criticised public funding for the contemporary Kinsey Institute. Her campaign largely prompted the United States Child Protection and Ethics in Education Act 1995 (Muir & Court: 1990). Paul Gebhad, Kinsey’s colleague and co-author from 1946-1956, denies the child abuse allegations vehemently (Public Broadcasting Station ‘New River Media Interview With: Paul Gebhard’ ) and Jonathan Gathorne-Hardy dismisses them as part of a ‘scurrilous and shoddy’ attack on Kinsey by the religious right of America that hates ‘all liberal development of the last fifty odd years’ (1998: 223). Kinsey’s suspect techniques were publicly unknown in the 1950s. Attention came rather with his findings. The report holds that of the sample of men, 37 percent of males had had at least one homosexual experience to the point of orgasm, and that ten percent of males were predominantly homosexual for at least three years. About four percent were said to be exclusively homosexual. The application of this sample to the wider population has since been questioned, particularly given Kinsey’s alleged over-sampling of prison populations and his inclusion of teenage incidents to represent conclusive ‘homosexuality’ in adult men. Nonetheless the report was commercially and ideologically successful, making headlines and selling around 270,000 copies in English, with another eleven translated editions, and the English language edition selling in eighty countries (Gathorne-Hardy: 1998: 270). Perhaps predictably, Kinsey’s report on Sexual Behaviour in the Human Female generated far less interest when it was published five years later (Archer: 2002: 122). 420 The Kinsey Institute, ‘Data From Alfred Kinsey’s Studies’, The Kinsey Institute Home Page, sourced at http://www.indiana.edu/~kinsey/research/ak-data.html#Scope

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Hines, the Home Office considered prosecuting the Kinsey Report for obscenity. Davenport-

Hines implies that this was because ‘Kinsey’s implication that homosexuality was present in every corner and class of Britain, and was not the deviance of a small excoriated and identifiable minority, terrified some people’.421 However the quotation supplied by Davenport-

Hines to support this ‘terror’ as the motivation for the intended obscenity charge does not support his claim. Davenport-Hines refers to correspondence from J H Walker of the Home

Office regarding Kinsey’s other major contemporary report, Sexual Behaviour in the Human

Female. Davenport-Hines quotes Walker as writing, the report ‘came fairly close to hinting that….the more a young girl allows herself to be lasciviously mauled, the better her chances of a happy marriage….this and similar passages will give great offence….and it is impossible to ensure that it will not encourage some youngsters to excess’.422

It is difficult to connect this concern of Walker with the proposed censuring of the Kinsey

Report on male behaviour, or with anything to do with homosexuality at all. In fact it appears not so ludicrous an objection on the part of Home Office, given the ‘lascivious mauling’ part.

Davenport-Hines simply maintains that the report on male behaviour was considered for obscenity charges and that ‘interest in this research was so great that a diplomat, Guy Burgess, who owned one of the first copies in England, was so frightened of it being stolen that he hid it in a place that he thought no one would look – the Foreign Secretary’s in-tray’.423 The Kinsey report on male behaviour was widely accepted. Kinsey gave evidence to the Wolfenden

Committee, which apparently adopted his ideas about a continuum of sexuality.424 The findings of the Report were cited in the House of Lords in defence of the decriminalisation of men’s homosexual sex.425 Apparently some in the House were not so terrified by Kinsey's findings,

perhaps having finally located the report in the offices of the Foreign Secretary. Predictably, no

421 Richard Davenport-Hines, Sex Death and Punishment, 300. 422 Ibid, note 21, 419. Original ellipses. 423 Ibid, 299. 424 Frank Mort, ‘Mapping Sexual London’, 106 and Trevor McGhee, ‘Wolfenden and the Fear of the “Homosexual Spread”’, 68-69.

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fuss seems to have been made over Kinsey’s findings on men’s use of prostitutes, published in the same report. Kinsey considered his own finding, that 69% of the total adult white male

population had used a woman as a prostitute for sex, as notably below average compared to other countries: ‘This means that there is nearly a third (31%) of the population that never has any sort of sexual contact with prostitutes’, the report exclaims.426

Prostitution panic

Throughout the early 1950s in London prostitution was argued by some to be booming as well

as homosexuality, despite the contrary orthodox rhetoric that prostitution was the ‘oldest

profession’. For example, the Marquess of Lothian, a member of the Wolfenden Committee,

claimed in the House of Lords in reference to prostitution that ‘we must all know that certain

areas of London are becoming a disgrace and a scandal, and foreign visitors are appalled by

what they see’.427 In November 1954, the Chair of the Association of British Travel Agents J

Maxwell painted a bleak picture for the business community. The Times quotes Maxwell as

warning that the ‘traffic in vice’ had reached ‘dangerous dimensions’ and that ‘time and time

again important visitors to London have commented to me in the most uncomplimentary terms

about this unsavoury aspect of London nightlife, which I venture to say, is without parallel in

the Western World’.428 Yet, in December 1954 the Home Secretary Major Lloyd-George conceded that ‘not many complaints have been received in the Home Office about this problem

[street prostitution] in the last few months’.429 However the Home Secretary went on to say that he was ‘well aware that it causes a good deal of public concern’.430 It is unclear from where the

Home Secretary gleaned this opinion if not from the public.

425 The Earl of Huntingdon, House of Lords, Hansard, 4 December 1957, 803. 426 Alfred C Kinsey et al., Sexual Behavior in the Human Male, 595. 427 Marquess of Lothian, House of Lords, Hansard, 4 December 1957, 807. 428 ‘Vice In London Streets Overseas Visitors' Complaints’, The Times, 25 November 1954, 5 429 ‘Vice in London’s Streets – Increasing Number of Arrests’, The Times, 10 December 1954, 9. 430 Ibid.

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The police officers who submitted evidence to the Wolfenden Committee were adamant that prostitution in London had not increased. Constable Anderson of the Metropolitan Police explained that there had been no increase over the past 20 years in ‘public nuisance in the streets’ in the West End.431 Constable Scarborough explained that the increased rates of arrest of women over the past decade were due to having ‘more police in C Division than we had in

1947’.432 For Scarborough, it was simple: more police combined with more experienced police

meant more arrests. He explained, ‘the young man who came into the job in 1947 now has more

experience and they [sic] are doing the job as they should’.433 For Constable Scarborough, an increase in arrests had done nothing to reduce soliciting by prostitutes. But solicitation had not increased in the past 20 years. John Wolfenden seemed not to like or understand these answers, and pressed for clarification of the view that prostitution was not increasing. The police officers answered that it was not.434

The perceived increase in prostitution was typically blamed on the women involved, or perhaps

on their mothers. In an attempt at the spirit of psychoanalysis, the British Medical Association

deconstructed the problem of prostitution through the ‘analysis’ of the generic prostituted woman. The Association submitted to the Wolfenden Committee its opinion that ‘important factors’ leading to prostitution include

an unsatisfactory home background or a broken home with lack of parental love and security. In many cases the girls have been subjected to too harsh a discipline or allowed too much licence. Frequently, the parents have failed to set a good example, and are often themselves dishonest and amoral. In such homes there is often a complete lack of moral or spiritual values or any sense of social responsibility.435

However, there was also resistance to the view that prostitution was booming, beyond the police

force. In the House of Lords Earl Winterton novelly contested the idea that prostitution, even

431 PRO: HO 345/12. 432 Ibid. 433 Ibid. 434 Ibid. 435 British Medical Association, Evidence Submitted to the Wolfenden Committee, 51.

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street walking, was on the increase in London. The sixth Earl Winterton is an archetype of the old state.436 Eddie, as he was known, was a persistent and influential participant in the debates over Wolfenden, and was violently opposed to homosexual law reform in the 1950s. In modern terms, Earl Winterton was an eccentric, archaic old man.437 Earl Winterton spoke the ‘truth’ of the old state, that the old state was not interested in curtailing sex or impinging on any man’s right to sex. Unnatural vice was the problem for Earl Winterton.

Earl Winterton enjoyed talking about this heyday, the early 1900s, and argued that there was

‘some exaggeration in the statement that the streets of London are worse today than they were forty years ago’.438 He believed that, ‘in regard to the number of prostitutes the streets of

London were in many respects worse in the 1900s, and certainly worse at an earlier period’.439

He also disputed the idea that London had a ‘unique reputation for horror in the number of prostitutes that can be found in the streets’, citing Paris as one city where ‘it was impossible to walk even in places like the Champs Elysees without being pestered every few yards by prostitutes’.440 Earl Winterton was not interested in curtailing prostitution. He had grave fears for the impact of the Wolfenden Report, and disguised these fears in reference to his personal and elusive understandings of justice. He warned that ‘it would be easy to pass a law which, however unpleasant and disgraceful a vice prostitution is, would be unjust and contrary to the

English conception of justice’ and pleaded, ‘I hope that her Majesty’s Government will proceed

436 Biographer Alan Houghton Brodrick described him in 1965 as a ‘surviving link between the pre-1914 era and today’, in Near to Greatness. A Life of the Sixth Earl Winterton (London: Hutchison, 1965), 252. 437 Winterton has largely been dismissed by those who write about gay law reform as a simple homophobe and a nasty bigot, a national embarrassment whom it is easy to mock as out of touch and foolish. For example, for Richard Davenport-Hines Winterton is the ‘voluble homophobe’ (1990: photographs). For Stephen Jeffery Poulter, Winterton is the reactionary peer who elevated his ‘prejudices above the weight of expert knowledge’ (1991: 35). And for Jeffrey Weeks, Winterton is simply ‘ineffable’ (1977: 164). Winterton was all that is so often satirised in the English aristocracy: Tory, fox- hunter, anti-semite, homophobe. He was the sort of man to whom Lord Alfred (Bosie) Douglas might quip ‘What a funny little man you are’, had they ever crossed paths, Bosie Douglas’s infamous, tempered response to his father the Marquis of Queensberry’s public assault on Oscar Wilde (Murray: 2001: 57). 438 Earl Winterton, House of Lords, Hansard, 4 December 1957, 795. 439 Ibid. 440 Ibid.

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with great caution’.441 Winterton was apparently worried that the Report might lead to the punishment of men who used prostitutes, though it is difficult to be certain, given his cryptic speech. If this were the case, he need not have been concerned, as the Wolfenden Committee had no interest in punishing men and in fact little interest in curtailing prostitution at all. The

Committee was more interested in solidifying in modern law the implicit subject status of the heterosexual man whose liberty informs prostitution law, at the expense of the common prostitute who is constituted as the object of control. The interests of the old state and the new state converge.

Defending the Empire: Earl Winterton

Earl Winterton’s greater concern was the ‘filthy, disgusting, unnatural vice of homosexuality’,442 and he suspended his usual cryptic tone when railing against the ‘unnatural

vice’. In 1954 Winterton cited police statistics depicting a rise in convictions for homosexual

offences and was adamant that they reflected a growth in homosexual behaviour (though not an

increase in heterosexual prostitution, despite similar increasing arrests). True to his idealisation

of the old state, Earl Winterton often presented his fears in terms of concern for the nation and

the Empire, claiming to be convinced that,

the majority of British people agree with me that few things lower the prestige, weaken the moral fibre and injure the physique of a nation more than tolerated and widespread homosexualism. I hope and believe that we have not reached that point, and never shall.

If we did, I would submit with respect – and here I think I should have the support of everyone in your Lordships’ House – we should lose our influence for good in the world, and we should go the way of other countries in the past, who were once great but became decadent through corrosive and corrupting immorality.443

441 Ibid. 442 Earl Winterton, House of Lords, Hansard, 19 May 1954, 738. 443 Ibid 744-45.

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Winterton was concerned that Britain would follow the Greek and Roman Empires, packed with

‘pansies’, into Imperial decay.444 His colleague, the Lord Bishop of Southwell, expressed similar fears for the nation. In his view, an increase in ‘unnatural offences’

always seems to be a sign of a demoralised or decadent culture. Where people cease to believe effectively in what has hitherto been the communal religion, and when there is scepticism and cynicism about the meaning and value of life itself, people get driven back upon themselves, and introversion very easily brings perversion with it. It is a warning that cannot be ignored, and it is one more bit of evidence to show that once a people lets its ultimate convictions go, then there can be no stopping half way and the whole moral bottom is in danger of falling out of society.445

Concern for the health of the nation reflects the ‘old’ view of the state that was still prevalent and

credible in 1950s Britain, and arguably is prevalent and credible today, with the European Court

of Human Rights decision in Brown explicitly worded along these themes.446 As I noted in

Chapter One, the history of bodily rights is steeped in notions of public interest and obligations

to the Crown. In the spirit of Blackstone, bodies of citizens historically have been understood as

obliged ultimately to the state or the Crown. An individual’s preferences generally have not been

considered to be the overriding or profound factor in considering the legal status of the body.

Rather, interests of the state have been understood explicitly as paramount.447 And in informing

the permissive blueprint for the 1960s state, the highly influential, modern and

psychoanalytically driven British Medical Association was in agreement with this old view of

the individual and the state. For the Association,

the proper use of sex, the primary purpose of which is creative, is related to the individual’s responsibility to himself and the nation, and the Committee believes that the weakening of personal responsibility with regard to social and national

444 ‘Pansy’ was the preferred term of the Earl by which to refer to gay men, though he did also credit himself with coining the term ‘homosexualist’ ( Hansard, 19 May 1954, 744-45). However as Lord Brabazon of Tara noted, ‘the Greeks, who had no knowledge of Sodom and Gomorrah, had a curious view on homosexuality. They almost condoned it, but no Divine hydrogen bomb fell upon them’ (Hansard, 4 December 1957, 764). 445 The Lord Bishop of Southwell, House of Lords, Hansard, 19 May 1954, 751. 446 Laskey, Jaggard and Brown v United Kingdom (21627/93) [1997] ECHR 4. 447 In the same period as Wolfenden, in a 1954 English divorce trial Lord Denning dissented to personally criminalise sterilisation performed for non-surgical reasons (Bravery v Bravery [1954] 3 AII ER 59 at 67- 68, per Lord Denning). The other two judges dissociated themselves explicitly and vigorously from Lord Denning’s remarks. However, his opinions represent the vestige of a tradition in law that understands the individual body as tied intimately and conclusively to notions of ‘public interest’ and responsibility. Similar themes featured in the debates over homosexuality and prostitution of the 1950s

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welfare in a significant proportion of the population may be one of the causes of the apparent increase in homosexual practices and in prostitution.448

Those who indulge in homosexual sex or heterosexual prostitution, are those who ‘are mainly concerned with themselves and their sensations’. The danger is that such people,

associate together and obtain from each other the physical and emotional experiences they desire. Personal discipline and unselfishness have little place in their thoughts. If this behaviour is multiplied on a national scale the problem to society is apparent, for widespread irresponsibility and selfishness can only demoralise and weaken the nation. What is needed is responsible citizenship where concern for the nation’s welfare and the needs of others takes priority over selfish needs and self-indulgence.449

However despite its concerns for the nation over the individual, the British Medical

Association viewed the law as a blunt instrument in combating promiscuity. In its opinion, what

was needed was the promotion ‘in the minds, motives and wills of the people, a desire for clean

and unselfish living’.450 There was little consideration within the Wolfenden Report and in general discussions that prostitution could be prevented or diminished or even effectively penalised, simply because it was ‘as old as civilisation’.451 Its danger to the nation was not serious enough apparently, to warrant combating its ‘inevitable’ presence. The prostitution of women was decreed a ‘natural’ immorality, unlike the ‘unnatural’ offence of men’s homosexual sex. Men’s ‘natural’ role as the implicit sexual subject, and the liberty this role necessitates, was upheld.

Policing sex in the 1950s

It is arguable that were was an increase in the incidence of men’s homosexual sex and/or heterosexual prostitution during the 1950s. Sir Hugh Lucas-Tooth, the Undersecretary to the

Home Office, pleaded ignorance in the House of Commons as to if or why homosexuality was on the rise. According to The Times, ‘he could offer the House no opinion on the reasons for

448 British Medical Association, Evidence Submitted to the Wolfenden Committee, 9. 449 Ibid, 10. 450 Ibid. 451 Eustace Chesser, Live and Let Live, 10.

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that increase [in prosecutions] and he thought the reasons were simply unknown’.452 The Times quoted him as acknowledging that,

there were no reliable means of assessing the prevalence of homosexual practices, and the only statistical information available related to the number of offences which came to the notice of the police, and the number of persons convicted. Those statistics must be to a considerable extent, misleading, but they were more reliable as a guide to what was happening than mere emotion or subjective impression.453

And The Times quoted the Bishop of London along similar lines. The Bishop addressed the

issue of the ‘vice wave that is supposed to be surging over this country’, saying,

we have had a great deal of discussion in the Press and elsewhere recently. Whether it is something new or not, it is impossible to say. It may be that the greater number of cases of conviction arise from greater vigilance on the part of the police. It may be that we are suffering from a kind of undermining of our moral fibre as a reaction of the war.454

Nonetheless, it seems that the police pursued arrests for these offences with increased vigour in the 1950s, as evidenced in the police testimonies over prostitution. Despite the simple explanation of the police, that more experienced men on the job means more arrests, the motivation for this new police assault on public sex has prompted much speculation, culminating in the ultimate theory: that of the FBI conspiracy. I address the conspiracy theory shortly, but I begin with the mundane. Frank Mort points to the Queen, not the FBI.

As I noted in Chapter Two, the Coronation was a symbolic showcase for Britain. Mort highlights the fact that in the spring of 1953 London was the venue for the ‘most extended display of official spectacle since the end of the Second World War’.455 The Coronation was the

occasion for the ‘plethora of formal and informal rituals which reinforced the role of the capital,

not only as the focus of national celebration but also as the hub of a re-formulated British

452 ‘House of Commons: Serious Increase in Offences: Reasons not Known’, The Times, 29 April 1954, 4. 453 Ibid. 454 ‘Church Inquiry Into Vice - Committee Of Experts’, The Times, 17 November 1953, 5. 455 Frank Mort, ‘Cityscapes’, 889.

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Commonwealth’.456 The Coronation placed London under pressure to live up to the capital’s

obligations to represent the empire. The city was under scrutiny and for the first time, a

televised microscope. Jeffrey Weeks refers to the mass media, particularly the press, as acting

as ‘magnifiers of deviance’.457 And Mort claims that ‘in a carefully orchestrated series of

sensationalist exposes published in the weeks before the coronation, the popular press told how

the capital was in the grip of the twin vices of homosexuality and prostitution’.458 Media attention was international, with articles on London as a ‘den of iniquity’ appearing in newspapers of the United States and throughout the Commonwealth during 1953.459

The dangers of proselytisaton: a fear of the press

Strangely, the enthusiastic and vigilant press was blamed for encouraging homosexuality,

despite its focus on the punitive and disastrous consequences for men who had sex together.

Then Prime Minister Winston Churchill was not interested in funding a Committee or Royal

Commission to address the ‘issue’ of increasing homosexual sexual offences.460 Churchill’s primary object was for the publicity surrounding the issue to die down. Churchill raised in

Cabinet his interest in introducing a bill to ‘restrict press reports for trials of homosexuality’.461

According to Davenport-Hines, ‘this resurrection of the idea of Halsbury’s Publication of

Indecent Evidence Bill of 1896 had support from other Cabinet ministers, who liked to think that male desire for other men would not exist without publicity’.462 In March 1954, David

Maxwell Fyfe reluctantly rejected the plan to suppress press reports, explaining that it would be

‘difficult to justify a distinction between homosexual offences and other sexual offences’ and because ‘it is in the public interest that cases of this kind, however unpleasant, should be reported, so that everyone may know that conduct of this kind is an offence against criminal law

456 Ibid. 457 Jeffrey Weeks, Coming Out, 162 458 Frank Mort, ‘Cityscapes’, 890. 459 Patrick Higgins, Heterosexual Dictatorship, 256. 460 Ibid. 461 Richard Davenport-Hines, Sex, Death and Punishment, 313. 462 Ibid.

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and may realise what is the punishment for committing that crime’.463 Prostitution was not

understood in terms of proselytisation by the government because prostitution was understood

as a natural occurrence, a right of men. Prostitution was not thought of as a choice.

The Archbishop of Canterbury also expressed concern over the influence of the newspapers. He

appealed to the press to cease its coverage of sex crimes in general, and particularly the

‘shameful vice of homosexual indulgence’. The Times quoted the Archbishop as having written

in his Diocesan Notes,

there has for some time been growing alarm at the large number of crimes of violence, and especially of such crimes directed against women and children. The news of them rouses universal distress and indignation, but I am not sure that the extensive publicity which they receive is wise. It is at least arguable that it serves to excite unbalanced people, already inclined to such perversions, to imitate what they read of.

But there is now a mounting dismay at the realisation that what Lord Samuel referred to in the House of Lords as the ‘vices of Sodom and Gomorrah, of the cities of the plain’, appear also to be rife among us….There is a grave cause of alarm now abroad. At long last it is being openly stated that certain newspapers and periodicals, by their unwholesome exploitation of sex, are corrupting the moral sense of the nation.464

The Archbishop appealed to the contemporary sense of obligation to the nation and to the

Christian God, imploring, ‘do not the Coronation last summer, and Christmas now, combine to

reinforce the call to every citizen in his reading, and every journalist in his writing, to purge our

national life by the pure light of God’s love for man and of his moral law?’465 The theories of

Davenport-Hines aside, it is likely that the desire for press restrictions on homosexual sex trials on behalf of the government was more complex than reflecting simply a fear of the proselytising effects of publicity. Controversy was mounting in the press and in parliament over the tactics and policies of the police used to secure convictions for homosexual offences. Also, a

463 David Maxwell Fyfe, ‘Restrictions on Reporting of Proceedings for Homosexual Offences’, Cabinet Office Record, 31 March 1954, PRO: CAB 129/67. 464 ‘Exploitation Of Sex: Dr Fisher's Plea For Change In Press, Homosexual Net of Corruption’, The Times, 25 November 1953, 4. 465 Ibid.

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number of trials involving political and church representatives had appeared before the courts during this period. Vicars, Lords and MPs were being tried for molesting children, and molesting each other.

The myth of the witch hunt

Around the time of the Coronation a new Metropolitan Police Commissioner was appointed in

London, whom Davenport-Hines refers to as ‘a bigot’.466 Within Sir John Nott-Bower’s first years as Commissioner, convictions for male importuning rose to an average of about 40 per month in the West End of London.467 According to Montgomery Hyde, Nott-Bower promised to

‘rip the cover off all London’s filth spots’.468 However the jurisdiction of Nott-Bower was in

fact limited and did not include the City of London, which has its own police force.469

Richard Davenport-Hines is an enthusiastic exponent of the myths of Wolfenden concerning

panic, witch-hunt and purge. Davenport-Hines characterises the Home Secretary, the Police

Commissioner, the Chief Magistrate and the Director of Public Prosecutions as bigots.470 He

claims that their homophobic fears ‘fed on one another’, and ‘as a result many men found

themselves suddenly ensnared in the cruel machinery of accusation, defence, punishment – the

whole rigmarole invented by society to quell those insufficiently inconspicuous’.471 Certainly it

appears that unsavoury police tactics were encouraged in the assault on public sex across

London, notably the use of agents provocateurs. This reportedly involved the use of ‘good looking’ police officers in plain clothes to entice and entrap men into soliciting sex, generally in

466 Richard Davenport-Hines, Sex, Death and Punishment, 304. 467 Ibid. 468 Montgomery Hyde, The Other Love, 214. 469 Patrick Higgins, Heterosexual Dictatorship, 256. When he gave evidence to the Wolfenden Committee Nott-Bower’s language was ‘less inflamed with the language of moral outrage’ (Mort: 1999: 100). 470 Richard Davenport-Hines, Sex, Death and Punishment, 305. 471 Ibid.

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London’s public toilets.472 However the tactic was not new; it had been an established police practice since the 1930s.473

In the 1950s there was an increase in the number of prosecutions in which one man was

persuaded to turn Queen’s Evidence and testify against his accomplice with the promise of

immunity or a lesser charge. For Montgomery Hyde, more disturbing was the revival of the

conspiracy charge, ‘counts under this head being added to the indictment, thus making the

words and acts of each of the defendants accused jointly admissible in evidence against all

others’.474 Hyde also suggests that at this time the police adopted the habit of searching premises without search warrants in the hope of finding compromising letters or other documents which might be useful to corroborate the evidence of an accomplice who had agreed to testify for the prosecution.475 The author Rupert Croft-Cooke, who was convicted of gross indecency

committed with two sailors, wrote of how he and his secretary were arrested in the middle of the

night.476 Montgomery Hyde credits in particular this practice of ‘ransacking the premises of alleged homosexual offenders’, as having contributed ‘strongly to the public revulsion which set in against the official persecution of homosexuals and which led directly to the setting up of the

Wolfenden Report’.477

This conjecture is in contradiction to writers like Barbara Sullivan, who describe the report as a

response to community concerns over the incidence of homosexuality, or those who subscribe

to the theory of a communal moral panic over visible sexuality. It might also contradict the view

of the MacMillan government that the Committee’s recommendations to decriminalise men’s

homosexual male sex in private were ‘ahead of public opinion’ (though the public’s inferred

472 Montgomery Hyde, The Other Love, 209. 473 Frank Mort, ‘Mapping Sexual London’, 102. It continued at least until the mid 1980s when Conservative MP Keith Hampson was arrested in a gay strip club in Soho after a police agent provocateur claimed to have been groped by him. The charges against Hampson were dismissed when a jury could not agree on a verdict (Baston: 2000: 150). 474 Montgomery Hyde, The Other Love, 215. 475 Ibid, 209. 476 Croft-Cooke claimed that ‘although the police making the arrests had no search warrants, they spent several hours opening drawers, examining letters and pulling the beds to pieces’ (Hyde: 1970: 218). 477 Ibid, 217.

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different opinions on homosexual sex and/or police ‘persecution’ are not apparent from this statement). Hyde credits the general public with empathy for homosexual men, or in the very least revulsion for alleged police persecution. And he credits this empathy with prompting the investigations of the Wolfenden Committee, with the object of ceasing such persecution.

The case of Sir John Gielgud also signals a complication of the usual explanations of the

Wolfenden Report and panic. In 1953 Gielgud was convicted on a charge of importuning in a

Chelsea public toilet. He had recently been knighted and predictably, the press was excited by the high profile trial, albeit one that resulted only in a small fine. On returning to the stage shortly after the trial to appear in A Day By the Sea, Gielgud was greeted with a standing ovation from the audience that brought the play to a standstill. This public display of support for the convicted ‘unnatural offender’ incensed Earl Winterton, and seems genuinely to have bewildered him as to why anyone would offer support to a man convicted of so ‘disgusting’ a crime as Gielgud. As far as Winterton was concerned, this was more evidence of a ‘serious moral declension’ in society and of an increase in homosexuality. He argued in the House of

Lords that the theatre was never a haven for homosexual men in his day, that,

many of the great actors of the past, in the early days of this century, were friends of mine…..We were members of the same club. It is inconceivable that they would have been guilty of the disgusting offence of male importuning or that the theatrical public in those days would have treated the offence with the leniency accorded to [Gielgud].478

Apparently not everyone was panicking about men’s sexuality.

Vicars, Lords and the FBI: embarrassing arrests

In the period leading up to the announcement of the Wolfenden Committee, homosexual

offence trials involving public figures began appearing in the press. In the early 1950s, reports

of child sexual abuse trials involving headmasters and schoolboys, priests and choirboys, priests

and/or headmasters and boy-scouts were interspersed with tales of the trials of actors, authors

and MPs for crimes of gross indecency committed with other adult men, often in uniform.

478 Earl Winterton, House of Lords, Hansard, 19 May 1954, 744.

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While Sir John Gielgud and author Rupert Croft-Cooke represented the arts in these trials, the

MP William Field ensured that parliament was not overlooked in the ‘wave of vice’ rhetoric, by appealing his conviction for persistent importuning in underground urinals. Field’s unsuccessful appeal based on the definition of importuning was incomprehensible to the Chief Lord Justice, who dismissed his claims: ‘it would be idle to pretend that everybody in Court did not know that the appellant was a man in a public position’.479 The Times reported that for the Chief Lord

Justice it was ‘lamentable that the appellant, although entitled to do so, should raise this matter

again; it could serve only to remind people - who might have forgotten – of his conviction’.480

The vicars and the MP were small fish however, when compared to tales of the homosexual

spies and of the bachelor Lord heir-apparent and the boy-scouts. In 1951 two British diplomats

caused a furore that Montgomery Hyde credits as prompting the intensification of the police

‘drive against homosexuals,’481 and which led to mutterings of the FBI, prompted oddly by a

distant Sydney newspaper. Diplomats Guy Burgess and Donald McLean defected together to

the Soviet Union in 1951 amid revelations that they ‘had been spies for years’,482 and stories that McLean had been blackmailed over his homosexuality into spying while on post in the

British Embassy in Washington.483 Guy Burgess is the diplomat whom Davenport-Hines credits with stashing the Kinsey Report in the in-tray of his boss. Burgess had been working for the

Soviets since the 1930s and continued to work for them after securing a position in the British

Foreign Service; he was considered ‘the greatest traitor that Britain has ever known’ by his once best friend Goronwy Rees.484

479 ‘Queen's Bench Division Conviction Of Importuning: Appeal Fails, Field v Chapman’, The Times, 9 October 1953, 11. 480 Ibid. 481 Montgomery Hyde, The Other Love, 213. 482 Richard Davenport-Hines, Sex Death and Punishment, 300. 483 Montgomery Hyde, The Other Love, 213. 484 In Patrick Higgins, Heterosexual Dictatorship, 84.

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Goronwy Rees was a journalist, author and Principal of the University College of Wales at

Aberystwyth, who also worked for MI6.485 Rees was appointed a member of the Wolfenden

Committee, but resigned midway when his friendship with Burgess was made public after he was revealed as the author of a series of lurid anonymous articles for People. Helen Self describes Rees as ‘by far the most lateral thinker and perceptive member of the Committee’.486

The People articles promised to ‘strip bare’ Guy Burgess, and were a ‘heady mixture of gossip, sexual scandal and international espionage’.487 John Wolfenden was ‘deeply shocked’488 and embarrassed by the identification of Rees as the best friend of ‘notorious homosexual’ Burgess, and waited hopefully for his offer of resignation.489 Wolfenden wrote in 1956, ‘If it turns out – as it well may – that the Committee recommends some “liberalisation” of the laws about adult male homosexuals in private, such a recommendation will be a good deal discredited if it is signed by “Burgess’s closest friend”. We really shall be in rather a mess’.490 Wolfenden did not

have to wait long for the resignation of Rees. It was offered in April 1956.491

The myth of the homosexual witch hunt and the FBI is that at the height of 1950s cold war paranoia, the United States government was very concerned over the double incident of defection of Burgess and McLean. Leading proponent of the myth, Montgomery Hyde claims the US government made ‘representations to the British to weed out all known homosexuals from Government service as bad security risks, as was already being done in Washington’,492 and the Home Office instructed the British police to institute a ‘new drive against male vice’.493

485 Jenny Rees, Looking for Mr Nobody: The Secret Life of Goronwy Rees (London: Phoenix, 1994), 153. 486 Helen Self, Prostitution, Women and the Misuse of the Law, 154. 487 Frank Mort, ‘Mapping Sexual London’, 112. 488 Ibid. 489 John Wolfenden, Private Correspondence, 1956, PRO: HO 345/2. 490 Ibid. 491 In 1979 Goronwy Rees confessed on his deathbed that he also had been a Soviet spy, but the truth remained unconfirmed until 1999 when he was named by KGB defector Vasili Mitrokhin, who smuggled KGB archives out of Moscow. In the files, Rees is named as a ‘key element’ in the recruitment strategy of Guy Burgess at Oxford University in the late 1930s (BBC, ‘UK: Wales – Welsh Author Named as a Spy’). According to Mitrokhin, Burgess wanted Rees assassinated ‘because he knew too much’ (Andrew & Mitrokhin: 1999: 79-85 & 155). 492 Montgomery Hyde, The Other Love, 214. 493 Ibid.

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The theory of an FBI–led, McCarthy conspiracy against homosexual British men has its roots in one or two public sources. One of these is Australian. On 25 October 1953 the Sydney Murdoch

newspaper, the Sunday Telegraph, published an article by its London correspondent Donald

Horne that claimed inter alia, that Scotland yard had a plan to ‘smash homosexuality’ in

London. Horne wrote,

The plan originated after strong United States advice to Britain to weed out homosexuals – as hopeless security risks – from important Government jobs. One of the [Scotland] Yard’s top-rankers Commander EA Cole, recently spent three months in America consulting with FBI officials in putting the finishing touches to the plan.494

Patrick Higgins dismisses the ‘sensational’ article495 but it was picked up and published in part

by journalist Peter Wildeblood in his 1955 autobiographical account of his conviction and

incarceration for homosexual offences, Against the Law.496 Wildeblood believed he was a victim of the US-led conspiracy and he trusted the authority of the Sunday Telegraph, in which

his own high profile trial featured prominently. Subsequently, authors like Montgomery Hyde,

Richard Davenport-Hines and Jeffrey Weeks have accepted and cited Wildeblood’s account of

the McCarthy conspiracy. Wildeblood is the other source for the popular belief in an FBI ‘witch

hunt’ of homosexual men, and his authority appears to be the first source, the Sunday

Telegraph.

Peter Wildeblood: perhaps the first homosexual

Peter Wildeblood was convicted for homosexual offences along with his friend, Lord Edward

John Barrington Douglas-Scott-Montagu third Baron Montagu of Beaulieu, or Lord Montagu as

he was known. The Montagu trials were big news in the press, and reportedly, ‘even the staid

old BBC radio made a meal of the case. Comedians made constant jokes about watching your

494 Donald Horne, ‘Big Names Involved in London Clean-up of Male Vice’, Sunday Telegraph, 25 October 1953, 11. 495 Patrick Higgins, Heterosexual Dictatorship, 253 496 Peter Wildeblood, Against the Law, The Classic Account of a Homosexual in 1950s Britain (1955) (London: Phoenix, 2000).

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backside even on family radio shows’.497 Lord Montagu, who was 27 and planning soon to be

engaged, was in trouble for a few different reasons. First, he and his friend Kenneth Hume were

charged in August 1953 each for committing a ‘serious offence with a male young person’.498

They had invited two boy scouts to Montagu’s beach hut at Beaulieu to bathe, and it was alleged that the boys were assaulted. Montagu was acquitted of the felony of committing an unnatural offence (buggery), but the jury could not reach a verdict on the lesser charge of indecent assault of the boy.499 The charges were held over, along with the trial for Hume’s sole

charge of indecent assault. In the meantime, more scandal erupted. Within three weeks of the

original trial Lord Montagu, along with his cousin Michael Pitt-Rivers and their mutual friend,

Peter Wildeblood, was charged with conspiracy and with committing consensual homosexual

offences with adult men.

The charges relied on the testimonies of the other two participants in the various alleged sex

acts, two RAF airmen, McNally and Reynolds. Both of the airmen faced the prospect of a court

martial, dismissal from the RAF and a prison sentence if convicted. The DPP offered McNally

and Reynolds immunity to all charges if they turned Queen’s evidence and testified against the

three high profile defendants. The two RAF men agreed and the defendants were convicted of

‘unnatural offences’, and sentenced to between twelve and 18 months each. Aside from the

controversial move of having two suspects testify against their lovers for immunity, the trial

involved the charge of the three defendants with conspiracy to procure sexual partners.

According to Patrick Higgins, this was the first time the charge had been used since the trials of

Oscar Wilde in 1895.500 Peter Wildeblood saw himself as a victim of the McCarthy witch-hunt.

Wildeblood had been reading the Sunday Telegraph and viewed his trial as a political

497 Stradivarius, the website for older gay men in the UK, sourced at http//:www.keith-london.freeuk.com/Stradivarius/Ourhistory.html. 498 ‘Lord Montagu In Court: Week's Remand On Bail’, The Times, 9 November, 1953, 4. 499 Lord Montagu Not Guilty on Main Charge, Jury Disagreement on Second Count, The Times, 17 December 1953, 2. 500 Patrick Higgins, Heterosexual Dictatorship, 231.

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manoeuvre, designed to allay US government fears that men vulnerable to blackmail occupied high positions within the British state.501

Peter Wildeblood not only saw himself as a victim; he saw himself as a homosexual. I have argued that the Wolfenden Committee sought to produce the homosexual subject. Throughout the course of the Committee hearings, testimonies and examinations, one immediate production was the homosexual of Peter Wildeblood. In 1955 Wildeblood published his autobiography in which he novelly identifies himself as a homosexual.502 Wildeblood also gave evidence to the

Committee as a ‘homosexual’, thus articulating a ‘new kind of selfhood’,503 and giving rise to a

‘uniquely modern homosexual persona’.504 Wildeblood described himself with a mix of sexology (Havelock Ellis) and psychoanalytical terms (Freud), reflecting the contemporary confused milieu of medical authority in which the Committee operated. Wildeblood spoke of

an “innate condition”, of the “congenital invert”, of a “tragic disability” for which there was no cure, casting himself in terms that were ascendant until the 1930s in Britain, terms consolidated by Ellis in his classic study Sexual Inversion. But Wildeblood also spoke the language of Freud: he referred to friendships between boys which had an “unconsciously homosexual basis”; he dissected individuals who went through a homosexual stage before making “the natural transition into normality”; and he conceived of homosexuality in terms of “arrested development”.505

Chris Waters identifies Wildeblood’s self identification as a homosexual man as crucial to the modern self: ‘the project of modernity in post-war Britain cannot be fully understood without reference to the emergence of new and distinctive modes for imagining the self’.506 Wildeblood imagined himself as the homosexual subject, precisely what the Wolfenden Committee was searching for. However, self-constitution and self-identification made the Committee uneasy.

501 See Peter Wildeblood, Against the Law. 502 Ibid. 503 Chris Waters, ‘Disorders of the Mind, Disorders of the Body Social’, 136. 504 Ibid, 137. 505 Chris Waters, ‘Havelock Ellis’, 166. 506 Ibid.

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Producing the homosexual subject proved easier than acknowledging and accepting him.507 The

homosexual was not named in Wolfenden to be legitimised. He was named to be hidden508 or to be medically treated into normality.509

Conclusions: punishing women, the ruse of the gay man

The motivation for the Wolfenden Report has sparked different theories and myths but rarely do they focus on prostitution: the details of trials of Lord Montagu pushed the conservative Cabinet over the edge, or that the FBI ‘encouraged’ the British government to exorcise homosexuality in the wake of the scandal of the soviet spies. Perhaps the media coverage of the Montagu trials prompted the government to be seen to be doing something to combat the ‘wave of vice’ that the press was intent on ‘uncovering’. Montgomery Hyde and Richard Davenport-Hines both identify the unpleasant style of policing employed to secure convictions for homosexual offences in the early 1950s as having caused a fuss that the government wanted to quell, therefore being instrumental in the motivation for the Committee. They suggest that the hypocritical offer of immunity to two defendants in the Montagu trial was viewed publicly as the last straw. As I have noted, in 1954 the Home Secretary felt public pressure to decriminalise homosexual sex, but he apparently did not feel pressure to cease the legal persecution of women

in the street.

Lord Montagu was arrested in August 1953 for the offences concerning the boy scouts, and the

trials for these allegations began in November of that year.510 The second Montagu trials,

involving the controversy of the conspiracy charges and the offers of immunity did not

commence until March 1954, over three months after it was reported that Church groups had

507As Les Moran notes, ‘when the homosexual man names himself, that naming appears to become more, rather than less, problematic’ (Stychin & Herman: 1995: 20). Peter Wildeblood seems to have understood a hierarchy of good and bad homosexuals not dissimilar to the characterisation by Theobold Mathew: Wildeblood promoted himself as a good homosexual. 508 Ibid, 21-22. 509 Derek McGhee, ‘Wolfenden and the Fear of “Homosexual Spread”, 65-66. 510 ‘Lord Montagu In Court: Week's Remand On Bail’, The Times, 9 November 1953, 4.

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called for an inquiry into homosexuality, and a month before the announcement of the formation of the Wolfenden Committee. On 6 November 1953 The Times reported that a public

call had been made by the president of the Methodist Conference for a Royal Commission to

investigate ‘homosexuality and other perversions’, and to ‘take the question out of the realm of

publicity and sensation’.511 On 5 December 1953, it was reported that the Church of England

Moral Welfare Council also had ‘asked the Home Secretary to set up an inquiry into the whole subject of homosexuality’.512 On 16 February 1954 Home Secretary Maxwell Fyfe drafted the

Cabinet Memorandum that documented the Home Office’s wishes to appoint a Royal

Commission to ‘enquire into certain aspects of the problems’ of prostitutes soliciting in the

streets of London’. On 28 April 1954 Fyfe announced that a committee would be formed to

examine the problems of homosexual offences and prostitution.513 In 4 September 1957 the

Wolfenden Committee delivered back Fyfe’s personal recommendations for punishing street

prostitutes, along with its ‘embarrassing’ recommendations for decriminalising men’s

homosexual sex.

Jeffrey Weeks accepts the analysis that privileges the scandal of the Montagu trials in

identifying the motivation behind the Wolfenden Committee. He claims that,

the trial of Wildeblood and Montagu in fact proved a catalyst which revealed the inherent problems in the situations of homosexuals. Either the law had to be tightened up further, more rigorously and evenly applied, asMaxwell-Fyfe [Home Secretary] and other Tory luminaries, such as the ineffable Lord Winterton wanted; or it had to be reformed.514

Weeks is in agreement with Montgomery Hyde, about most things, but in particular that by

1954 public opinion ‘was not as monolithically hostile to reform as the popular press

imagined’.515 Peter Wildeblood he explains, was surprised by the support he received from

511 ‘Royal Commission Urged on Homosexuality’, The Times, 6 November 1953, 5. 512 ‘Homosexuality Inquiry Urged: Appeal To Home Secretary’, The Times, 5 December 1953, 3. 513 House Of Commons’, The Times, 29 April 1954, 4. 514 Jeffrey Weeks, Coming Out, 164. 515 Ibid.

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some of the people outside the court.516 For Weeks, the motivation for the Committee’s

inception is straightforward:

The [Church of England Moral Welfare] Council and the Howard League for penal reform supported by one or two members of Parliament….pressed the Home Secretary to establish a Royal Commission to investigate the law. He stubbornly resisted. But pressure came to a head during the Montagu-Wildeblood trial, and shortly afterwards he finally announced the setting up of a Home Office departmental enquiry.517

But where is women’s prostitution in this analysis? To understand the new state we need to unravel how we came to be where we are now, especially how we travelled from the period after the war to the freewheeling and swinging sixties. One myth of this distance is that we were given the legislation and ethos of the state that we had requested, because we were in a panic.

Most academic work on Wolfenden has focused on the story of the panic over homosexuality:

Burgess and McLean and friends certainly make for sensational and alluring reading. However, the myth that we were given what we wanted got does not reflect the case of prostitution, which was always the focus of the state in its intentions for the Wolfenden Committee. Next I turn to

prostitution in the 1950s to show how, much more than in the case of men’s homosexual sex,

the myth that the public got the legislation it wanted was railroaded through parliament, to the

detriment of women.

516 Ibid. 517 Ibid.

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Chapter Four: the Myth of our Wishes for Prostitution

My colleagues were looking forward with naughty expectation to my conduct of this particular interview, and were more than usually fertile in their suggestions about questions which might be asked.

(John Wolfenden 1976)518

In Chapter Two I explored the creation by Wolfenden of the homosexual subject as an object of

control. In this chapter I focus on the treatment of the ‘common prostitute’ as an object of the

state. In the preceding chapter I explored the prevailing mythologies about a general moral

panic in the 1950s over men’s homosexual sex and illustrated how these myths were

manipulated by the 1950s state to justify its agenda for homosexuality. Here I want to explore

contemporary myths about women’s prostitution that have been used, by the state and within

academia, to justify the Wolfenden Report. These myths present as uncontested, a general

public disgust and loathing for women that mandated the Committee’s agenda of invisibility for

prostitution: sweeping the streets clean of women.

Rather than accept these myths, as has been the tradition of academic attention paid Wolfenden, here I emphasise resistance to the Wolfenden recommendations for prostitution: resistance broadly by women and within the House of Lords. Just as I have emphasised the state’s manipulation of public opinion in regard to men’s homosexual sex, here I illustrate a manipulation by the state of mythology concerning public demand over women’s prostitution.

A myth of the permissive state is that it was a response to the demands of the public. But in terms of prostitution law reform in particular, I have found little evidence to support this theory.

My identification of resistance to and criticism of the Wolfenden Report would suggest that not everyone was satisfied with the Report’s treatment of prostitution. The governments of

Churchill and MacMillan did not consult with or respect prevalent public dissent from their

518 On the prospect of interviewing as witnesses women who worked as prostitutes (1976: 137-138).

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agendas in regard to prostitution. And directed by the Home Secretary, the Wolfenden

Committee, despite its self-identification as an investigatory Committee, actively dismissed such dissent.

In terms of a general freedom, or permissiveness, I have found no evidence to suggest that the

Wolfenden Report and 1950s prostitution law reform was concerned with a general freedom. In regard to women, the Wolfenden Report is especially punitive. Permissiveness or freedom

might be identified in the agenda of the Report for men, who might legally continue to access

prostituted sex at the direction of the Committee. Indeed, I argue that despite its ostensible focus

on women and homosexual men, the subject of the Wolfenden Report is in fact the heterosexual

man. In the case of prostitution, it is the male consumer. He is not a subject for control; he is not

imagined as the object. He is the subject in terms of his liberty and in his protection from

women (and from public homosexual sex). In this chapter I reveal the fears for men (their

liberty and their vulnerabilities) that inform modern prostitution law, as directed by Wolfenden.

I also delve briefly into the permissive myth of privacy. Supposedly, along with freedom and

the individual, the permissive state is novel and to be commended in its respect for privacy in

matters of sex, especially the private choices of adults to engage in prostituted sexual

behaviour.519 However, rarely is it noted that rather than merely ‘respect’ for privacy in terms of

sex, the Wolfenden Committee was normative in its construction of privacy. Along with

interrogating Wolfenden, and the mythology of the 1950s state, I also emphasise the unwitting

acceptance by contemporary authors and academics of the myths of Wolfenden, particularly

with regard to prostitution. I make less use of secondary sources than in the other chapters of

this section. This is due to my observation that academic treatment of Wolfenden’s construction

of the nature of prostitution has been sparse and largely uninsightful in its tendency to

reproduce uncritically the rhetoric and agenda of the Wolfenden Report itself. Here I note that

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the opponents of the Wolfenden recommendations for prostitution were marginalised and silenced at the time, and illustrate how this silence has been duplicated and echoed in routine histories of the period. This silence also privileges the heterosexual male as subject.

In this chapter I aim to debunk the myths of the state and academia concerning modern prostitution in order to reveal the agenda of Wolfenden: the protection of men from the state in terms of their liberty, and also in terms of themselves, from the feared and maligned prostitute.

The new state is concerned with the subject of the old: the heterosexual male. It is concerned with protecting his sexual liberty in the form of access to prostituted women, and it is concerned with protecting his public space. Brown involves the specific search for the homosexual (SM) subject and that investigation involved a (fruitless) search within Wolfenden for the parameters of his subjecthood. However, the homosexual male is only an object in Wolfenden. The true subject of the Wolfenden Report is the heterosexual male.

The myth of 1950s prostitution: repeated over and over

Historian Patrick Higgins depicts himself as the foremost unearther of the truth of Wolfenden.

Higgins explains that he is the first historian to have gained (limited) access to the Wolfenden

Committee papers that are held at the Public Records Office.520 Higgins presents his work as

‘investigatory’ in getting to the bottom of the real nature of the Wolfenden Committee, which

he identifies as homophobic or at least antipathetic to homosexual men. On the basis of his

archival and media research Higgins debunks the common myths of the involvement of an FBI

led conspiracy in the agenda of the Committee: his arguments shed new light on the standard

mythologies of Wolfenden. However in regard to Wolfenden and prostitution, Patrick Higgins

is orthodox and could almost be interpreted as speaking for the state. Discussing prostitution,

519 Barbara Sullivan, The Politics of Sex, 101-102, Martha Chamallas, ‘Consent, Equality and the Legal Control of Sexual Conduct’, 580. 520 Patrick Higgins, Heterosexual Dictatorship, 10. Higgins represents academic queer theory and is editor of A Queer Reader (London: Fourth Estate, 1993).

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Higgins draws on Sir David Maxwell Fyfe’s Cabinet memorandum of 1954 to explain in his opinion, the interest of the Home Office in targeting prostitutes:

In the summer of 1953 senior officials in the Home Office decided that it was time to “clean the streets” of the capital of the growing army of prostitutes who stationed themselves across the city selling sex to passers-by. The number of prostitutes coming before the courts in the capital had increased from 2966 in 1938 to 9756 in 1952.

There had been much adverse criticisms of this development in the popular press and many overseas visitors expressed considerable disgust at the behaviour of the women. Two residents’ associations, one in Paddington, the other in Mayfair, mounted well-organised campaigns after 1951 which increased the pressure on the Home Office to reform the laws regulating prostitution.521

Higgins seems to accept as straightforward the ‘fact’ that prostitutes were growing in number and the ‘fact’ that complaints were being made about their activities in the streets of London, by locals and by international visitors. This is despite reports that the Home Secretary had conceded in December 1954 a general lack of public complaints on this issue and the denial by the Metropolitan Police of any increase in prostitution, as I noted in Chapter Three. With all the energy and fuss devoted variously to revealing and debunking myths of witch hunts and conspiracies against homosexual men the lack of interrogation, by academics and others, of the myths of prostitution and the actual state assaults on women throughout this period is stark.

Patrick Higgins appears simply to accept the Wolfenden rhetoric that street prostitution was growing, and that the general public was ‘disgusted’ with the women and wanted them simply to go away. Just as the Wolfenden Committee directed, Higgins does not consider the idea that the concerns of the members of the public might have been more than simple visibility, that they might have had more sophisticated opinions and concerns over the nature of prostitution.

Higgins appears to accept without question the terms in which the Report framed the ‘problem’ of prostitution, that it is a matter of visible offence caused by women, and that its ‘solution’ lies in the freedom of citizens from such offence.

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The focus of Patrick Higgins in his research is homosexuality and gay men. He does not investigate the orthodox mythology of heterosexual prostitution in any way similar as he attempts to deconstruct the dominant mythologies of homosexuality in his book Heterosexual

Dictatorship. This is despite the book’s focus on the Wolfenden Report and despite the prominence he gives prostitution in his analysis of the motivation for the Report. Possibly he views heterosexual prostitution as beyond enemy lines within the Dictatorship. Higgins is not alone in this emphasis. Most literature concerning the Wolfenden Report focuses overwhelmingly on the aspect of homosexuality. This is arguably due to the fact that the Report led eventually to dramatically liberalising changes for the first time in British history for homosexual sex. But this reason tells only half the story. I think there is another reason, concerning a general lack of interest in prostitution. And I think that this lack of interest is due to the hegemonic success of the orthodox rhetoric of the inevitability of prostitution. If one is to speak in terms of an Heterosexual Dictatorship, the thesis of inevitability that has informed all law and policy on heterosexual prostitution, should be celebrated for its extraordinary success as propaganda for the regime.

The Wolfenden Report’s ‘findings’ and recommendations on prostitution have not been reported in terms of any shock, or dramatic impact. Rarely are they emphasised, and then only as mundane and ‘obvious’, if not overdue. Even Barbara Sullivan, who focuses on prostitution in regard to the Wolfenden Report in her work The Politics of Sex: Prostitution and

Pornography in Australia since 1945, simply repeats the propaganda that the Report constituted a welcome response to public concerns over the incidence of women publicly and visibly soliciting sex.522 Helen Self provides the only comprehensive analysis of the Report in terms of prostitution. Self notes at length the misogyny of prostitution law that targets women and the

521 Patrick Higgins, Heterosexual Dictatorship, 4. My emphasis. 522 Barbara Sullivan, The Politics of Sex, 98.

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contradiction of Wolfenden, which purports not to be concerned with morality, and yet targets the ‘offence’ of women in public.523

However most contemporary literature does not note that the Committee enshrined this thesis of inevitability into the modern, liberal and ‘civilised tolerance’ view of sex.524 The lack of exploration otherwise given to the government’s and the Committee’s intentions for heterosexual prostitution reflects a profound academic lack of interest in the topic. Patrick

Higgins analyses the situation thus:

The Home Office wanted to pass a new law that would tighten the penalties for women soliciting on the streets, increasing fines dramatically and including terms of imprisonment for repeat offenders. The Home Office anticipated that this would remove women from the streets into flats where they could be approached via the telephone. In this way prostitution would be hidden from view.

The problem was that the civil servants perceived difficulties about selling the legislation to Parliament and the public. They feared that moral campaigners would try to introduce legislation to make male clients liable for prosecution. This was never the intention of the Home Officials, who accepted that female prostitution was a necessary evil: they wanted a law merely to regulate public decency. They decided it would be necessary to establish a Royal Commission to investigate the problem and propose a solution.525

Higgins, like all prominent commentators on the Report, fails to note that the Committee’s

‘acceptance’ of the inevitable nature of prostitution was in fact a normative construction, not an

observation. The emphasis given to the Committee’s recommendations for homosexuality in

contemporary literature detracts from and conceals the significance of the Report for modern

understandings of heterosexual prostitution, and it supports a general, erroneous state

mythology of permissiveness. The Wolfenden Report did not reflect simply a predictable,

ultimate acceptance of the necessary and/or inevitable nature of prostitution. It confirmed a

particular understanding of prostitution and enshrined this understanding in what is now

discussed and praised in terms of ‘civilised tolerance’ and modern liberal pragmatism. This

523 Helen Self, Prostitution, Women and the Misuse of the Law. 524 This is beyond the scope of Self’s book.

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understanding privileges a masculine desire in its focus on the inevitability and necessity of prostituted women. It reflects a basic and very simple misogyny that has been largely ignored by those who write about the Wolfenden Report. And it illustrates the normalisation of the implicit subject status of men in prostitution law.

If Higgins is correct, the architect of the Report, the Churchill Cabinet, was aware that its own analysis of prostitution did not reflect all in the community. Higgins writes that ‘they feared that moral campaigners would try to introduce legislation to make male clients liable for prosecution’.526 And he claims that within Cabinet, ‘opposition grew to the idea of a Royal

Commission. Several ministers preferred that a departmental committee be appointed: such a committee was amenable to tighter control by the Home Office and its proceedings would be private’.527 This analysis does not support the bland observation of Higgins that the Committee

simply accepted the inevitable nature of prostitution. Rather, it acknowledges that the

Committee was directed by an agenda that discounted public concerns over the nature of

prostitution, dismissing these concerns with the effectively damning tag of ‘moralism’.

However such concerns were not marginal, nor were they raised exclusively by ‘moral

campaigners’, but featured prominently in the House of Lords debates concerning the Report.

‘Moral’ concerns: prominent objections to the Wolfenden Report

The standard rhetoric surrounding the Wolfenden Report has it that the recommendations on

prostitution were representative of the views of the general community, that the public was

‘satisfied’ with the Committee’s ‘findings’. This line is used to justify the Street Offences Act

1959, which implemented this ‘view’ into statute. However there is evidence to the contrary,

not least of all in the reproduction by Patrick Higgins of telling Cabinet insights above. The

Archbishop of Canterbury in the House of Lords was probably the most prolific and highly

525 Patrick Higgins, Heterosexual Dictatorship, 4-5. My emphasis. 526 Ibid. My emphasis. 527 Ibid, 6.

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profiled exponent of disagreement and disappointment with the Committee’s recommendations for prostitution. The Archbishop believed that the harm of prostitution was greater than or different from offence, and that men should be punished for their role in the commercial sex trade. He also disputed unequivocally the Wolfenden Report’s creative ruling that prostitution is a matter of ‘privacy’ and therefore harmful only in its transgression of the inferred code of the modern discourse of privacy. And yet, in the usual stories of Wolfenden, the arguments of the

Archbishop of Canterbury are overlooked.

The Archbishop opened the debate in the House of Lords in December 1957 regarding the

Wolfenden Report’s release and findings. From the outset, the Archbishop’s speech was novel in its focus on heterosexual ‘immorality’. In his opinion, ‘the threat to general public moral standards from homosexual offences done in private is far less, and far less widespread, than the damage openly done to public morality and domestic health by fornication and adultery’.528

During the three years of the Wolfenden Committee’s deliberations the Church of England

Moral Welfare Council (of which the Archbishop was primate) lobbied parliament, the

Committee and the press for the decriminalisation of men’s homosexual sex in private. To Earl

Winterton’s grave disappointment, the Council advised that all sins are not crimes and argued that,

there is ample evidence from the personal histories of those with whom we have been in touch that homosexualism is a problem and often a tragedy to those afflicted with it. As a social problem, it is not, as a rule, so far-reaching and devastating in its third-party consequences as ordinary pre-marital or extra- marital sexual relations.529

The Archbishop elaborated this emphasis on heterosexuality in his speech, identifying prostitution as an economic institution and targeting male clients as guilty. Although he accepted the principle that the acts of consenting adults in private, whether homosexual or

528 The Lord Archbishop of Canterbury, House of Lords, Hansard, 4 December 1957, 757. 529 Cited by Earl Winterton, House of Lords, Hansard, 19 May 1954, 738.

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heterosexual, should not come under the law,530 this principle bore no relevance to prostitution

in his view.531 His arguments for repeal were based not on the ideals of the legitimisation of

homosexual sex, or even of Christian tolerance. Unaffected by the prevalent virus metaphor, the

Archbishop claimed that homosexuality acted rather like a fraternity. In fact he compared it to

Freemasonry.532

For the Archbishop, the benefit of decriminalisation would be the destruction of the covert web of homosexuality. He viewed homosexuality as a club, a ‘secret society’ that was empowered by its underground nature and entrapped weak men with the romance of surreptitiousness and the threat of exposure. He spoke of pathetic British men hounded into continued homosexuality, sometimes (incredibly in his view) from as far afield as Australia by persistent and enthusiastic corrupters/suitors.533 In the Archbishop’s opinion, the decriminalisation of homosexual sex in

private might serve to weaken the proselytising hold of this perverse imitation of Freemasonry

over young men. He explained,

so long as homosexual offences between consenting adult males are criminal and punishable by law, the pressure of this kind of freemasonry will remain and will operate powerfully, for it gains strength from that fact that it must remain a secret society to avoid the law. It has all the glamour and romance of chosen and select rebels against the conventions of society and the forces of the law.534

The Archbishop wanted homosexual culture destroyed, and like the conservative, bureaucratic

establishment of the Wolfenden Committee, he understood the power of disarming and

neutralising identities through decriminalisation and enforced privacy.

530 The Lord Archbishop of Canterbury, House of Lords, Hansard, 4 December 1957, 759. 531 And in fact, despite his commitment to ‘privacy’, the Archbishop also held reservations over decriminalising anal sex between men (probably between heterosexual couples as well, although this was not apparent from these debates). In the opinion of the Archbishop, anal sex is the ‘extreme offence’ that even practising homosexuals often regard as representing a ‘degree of depravity to which they are thankful not to have fallen or in which they are especially reluctant partners’. The Archbishop advocated a repeal of the Labouchere Amendment without decriminalising ‘buggery’: a return to the situation of the early Victorian age ( Hansard, 4 December 1957, 759). 532 Ibid, 756. 533 Ibid. 534 Ibid.

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However, the Archbishop’s greater target was prostitution and the men who bought sex from women. He viewed heterosexual ‘fornication’ as a danger to society, and prostitution as

‘evil’.535 In his speech to the House of Lords he focused particularly on what he identified as the

erroneous connection in the Wolfenden Report of prostitution to privacy. And he focused also

on the inconsistencies he identified in the Report’s recommendations to further penalise women

for streetwalking while refusing to implicate men in the crime of prostitution. As far as the

Archbishop was concerned, with regard to prostitution the Wolfenden Report was nonsense. He

argued that the Report’s ‘safeguard of “in private” is quite irrelevant’, for ‘prostitution is not a

private occupation; it is a trade and nothing else, and if it is a trade then it has to be dealt with

like any other trade.’536 For the Archbishop it was straightforward: Prostitution is like drug dealing. It is ‘phoney’ to delineate one form of prostitution as private, just because it does not take place on the streets.537 A trade is commercial, not private in nature.

The Archbishop was annoyed with the implicit subject status of the male customer in the Report and the hypocrisy that throughout history the prostitute had been targeted by the criminal law, while ‘there has been little serious attempt to get at, to restrain or punish, the customer - the man’.538 For the Archbishop this reluctance to punish men reflected a fundamental lack of interest in quelling prostitution. As he understood it, ‘it is far the quickest way to restrain the trade. Very many men would be strongly restrained if there was a fear that they would find themselves the next day in the police court and their names made public’.539 He did not accept that it was ‘too difficult’ to punish men, but believed that the Crown would be able to find a way to effectively try men for soliciting sex ‘if the community said that they were to find a way’.540 He was confident that the general public would not be satisfied with the Report’s

535 Ibid, 759. 536 Ibid. 537 Ibid. 538 Lord Archbishop of Canterbury, House of Lords, Hansard, 4 December 1957, 760. 539 Ibid, 761. 540 Ibid.

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recommendations, to make prostitution simply less visible. He identified within the community a ‘public morality’ that ‘wants to curb the whole trade’.541

The Archbishop of Canterbury was not alone in his concerns in the House of Lords. Lord

Brabazon of Tara supported the Wolfenden Committee’s recommendations on homosexuality

but could find nothing ‘helpful’ in the Report concerning prostitution. He criticised the

Committee for not tackling the problem of prostitution, for merely moving it out of sight with

the tired excuse of ‘inevitability’. He responded to the Archbishop of Canterbury, saying,

what strikes me as very remarkable in these goody-goody days is that no-one wants to abolish it, and in that respect situation and the trend of thought today seems to be very much as it was in the days of the most revered Primate’s predecessor, Saint Augustine, who declared that just as the executioner, however repulsive he may be, occupies a necessary place in society so the prostitute and her like, however sordid and ugly and wicked that may be, are equally necessary.542

Although scathing of female prostitutes, Lord Brabazon also expressed contempt for

Wolfenden’s concern with the male client, stating that ‘it is an odd thing indeed that the man

who is a potent factor in the trade can do nothing wrong. He comes out of it as a sort of hero.

Frankly that is a situation that is one-sided and to which I cannot subscribe’.543 Despite such protestation Lord Brabazon reserved his nasty adjectives for the women of prostitution.

Meddling women: John Wolfenden’s dismissal of feminist dissent

Indignation was voiced at the Report’s lenient implications for male ‘curb crawlers’, beyond the

House of Lords as well. As the Home Secretary had feared, dissatisfaction was reported in the press regarding the overt discrimination entrenched in and promoted by the Report, in its plan to further penalise women while rewarding men with a largely unencumbered though potentially less visible sex trade to choose from. However the government did not value the opinions of those who dissented and dismissed them simply as members of ‘moral groups’, or more

541 Ibid ,759. 542 Lord Brabazon of Tara, House of Lords, Hansard, 4 December 1957, 761-762. 543 Ibid, 763.

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perpetually damning, as members of ‘women’s groups’. On 8 November 1957 The Times reported that while the Committee’s recommendations on homosexuality were viewed by the

MacMillan Government as ‘logical enough [but] very much ahead of public opinion’, its doctrine on prostitution was accepted as appropriate. According to the political correspondent of

The Times,

if towards the end of the session the Government wants to bring in a Bill to change the law dealing with prostitution they will frankly take the Wolfenden recommendations as their guide. They would hardly be surprised if the measure proved controversial with women’s organizations, but they take heart from the knowledge that a consensus of public opinion has clearly formed on this subject since the Wolfenden Report appeared.544

Just two months after the release of the Report the Government was confident that a public consensus had been reached over the prostitution recommendations, and that it was merely

‘women’s organisations’ that would be in disagreement with the ‘logical’ propositions of the

Committee. Helen Self observes that various ‘women’s organizations’ were viewed as acting in a conspiracy against the Committee.545 The National Council of Women had requested that the evidence to the Wolfenden Committee be presented at public hearings, rather than in private, arguing that it was doubtful ‘whether any positive good can result from secrecy’.546 The Home

Office wrote to John Wolfenden to warn that such organisations were pressing their ‘constituent elements to write to you in terms similar to the letters you have already received’.547 Home

Office official WC Conwy Roberts understood their agenda. Roberts wrote to Wolfenden:

I would not like to guarantee that these worthy ladies have in mind only their own evidence. I think it is more likely that they want the meetings in the open so that they can send observers to hear what other witnesses are saying. This would enable them to organise pressure groups in an endeavour to counteract the possible effect of evidence with which they do not agree. This is quite legitimate politics, but would not tend to help the Committee in its difficult task.548

544 ‘Move To Amend Prostitution Law Likely: Marking Time On Other Issues’, The Times, 8 November 1957, 4. 545 Helen Self, Prostitution, Women and the Misuse of the Law, 523. 546 Lady Hume JP, Correspondence to John Wolfenden, on Behalf of the National Council of Women of Great Britain, 20 October 1954, in PRO: HO 345/2. 547 WC Conwy Roberts, Correspondence to John Wolfenden, 26 October 1954, PRO: HO 345/2. 548 Ibid.

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Conwy Roberts worked very closely with John Wolfenden as his personal secretary over the course of the Committee’s tenure. Helen Self argues that Roberts was the ‘guiding force’ of the

Home Office to ‘steer the Committee towards the desired end’ of removing prostitution from visibility.549 The evidence to the Wolfenden Committee was presented in private, beyond

scrutiny.

In October 1957, perhaps ‘predictably’, the National Council of Women expressed ‘profound

dissatisfaction’ with the Wolfenden Committee’s recommendations. The Council was

particularly aggrieved by the recommendation to remove the ‘annoyance’ requirement for the

charge of soliciting. Until Wolfenden and its statutory incarnation, it was a requirement that for

a woman to be charged with soliciting, ‘annoyance’ had to be complained of by someone. The

Report recommends removing the annoyance requirement and making soliciting for the

purposes of prostitution (for money or gain, thereby not including the client) a crime of liability.

Along with harsher fines and the threat of imprisonment for repeat offenders, this was intended

to make it less feasible for women to survive on street prostitution, thus driving them into cafes

or apartments, out of sight – just as the Home Secretary had directed in 1954.

The National Council of Women and the Association for Moral and Social Hygiene submitted

evidence to the Committee about the discrimination they identified in the dismissal of the

annoyance requirement. The presumption that all prostitutes are annoying in their very presence

on the streets was contested. Mrs Elizabeth Abbott of the Association for Moral and Social

Hygiene explained,

my husband had a great contempt for the world and always looked annoyed, but he was constantly solicited because, having Swiss, French and Greek blood in him, he had a foreign appearance. Therefore, to the knowledgeable woman, he was easy prey. I said, “Are you annoyed?”. He said, “Not a bit – the poor devils!” He took off his hat, gave them a cigarette, lit it and took off his hat again before walking away. Well, if men would all behave like that, there would not be any prostitutes.550

549 Helen Self, Prostitution, Women and the Misuse of the Law, 83. 550 PRO HO: 345/13.

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In his 1958 defence of the Wolfenden Report Dr Eustace Chesser defended the recommendation to remove the annoyance requirement. Chesser was a ‘sexologist’ who submitted evidence to the Committee and who was so impressed by its findings that in 1958 he published Live and Let

Live: The Moral of the Wolfenden Report.551 Chesser criticized the annoyance requirement as

‘legal fiction’ and enquired, ‘how is it to be proved that solicitation has caused annoyance? The

supposed victim of annoyance does not appear in court. The only evidence is that of police,

which is regarded as sufficient.’552 Dr Chesser supported the repeal of the requirement because of its ‘fictitious’ nature in practice.

The National Council of Women ‘particularly deplored’ the proposition that annoyance should not be a requirement for a conviction of soliciting. The Council viewed the Committee’s recommendations as indicative of the discrimination underlying the Committee’s entire mandate and intentions in regard to prostitution. To illustrate this point, Miss Chave Collisson, Council member and secretary of the Association for Moral and Social Hygiene, relayed the following anecdote at the meeting. She described her walk down Tottenham Court Road, London late one night:

I took my hat off, my hair was a little untidy and I wore a carefree mackintosh lined with red. But at my age and with my figure, you would have thought that I would be free from wolf-calls [wolf-whistles]. Not at all. I had them all the way…. I said to a policeman at the end; “What would happen if I went over there and spoke to one of these men?”. He said, “I would arrest you for soliciting”. These wolf-whistles were allowed from men, but a prostitute could be arrested on a suggestion which nobody could prove.553

Miss Collisson’s tale of harassment was supported by the Dowager Lady Nunburnholme who

mused on the indiscriminate nature of men’s sexuality, confiding that she herself had been

551 Sheila Jeffreys, Anticlimax: A Feminist Perspective on the Sexual Revolution (London: The Women’s Press, 1990), 15. 552 Eustace Chesser, Live and Let Live, 99. 553 ‘No Penalties For Wolf-Whistles Women Criticize Vice Laws’, The Times, 24 October 1957, 6.

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whistled at after the age of 70 during the blitz. Based on her experience she concluded that, ‘I don’t think there is much difference from the man’s point of view’.554

The National Council of Women and the Association for Moral and Social Hygiene members

were concerned for the practical implications of the Wolfenden recommendations. They argued

that the proposals to make it easier to secure convictions and to increase fines for soliciting

would ‘encourage the commercial exploitation of vice’, in that it would not be financially viable

for a woman to work as a prostitute without a pimp.555 They were also outraged at the

inconsistent and sexist ideology of the Report that would not punish a man for soliciting sex,

and of the maintaining of the legal entity of the ‘common prostitute’ as a special legal target.

Chave Collison gave evidence to the Committee on behalf of the Association. She argued that

men

on any given evening….are prowling. I am not going to say that most men are offensive – there are always exceptions – but most men are extraordinarily decent except when they are seeking a particular type of woman. Surely if you are going to lay the burden upon the prostitute you must also assume that the man who is there seeking the prostitute is also to be arrested and punished. He is also seeking an immoral purpose.556

For Miss Peto, of the Association,

another reason why we want to get rid of the term “common prostitute” [is] that we want our laws to stand for equality…..if we make a law which is directed against the common prostitute, who is only one partner in an act which involves both sexes, surely that is preaching and teaching the idea that we expect the man to be frail and we excuse him, but we punish the woman who incites him. Can we expect a better standard of behaviour if we embody that in our laws?557

The Wolfenden Committee acknowledged that its desire to remove prostitutes from the streets

might lead to ‘other evils’, such as ‘an extension of the ‘call-girl’ system’, and ‘a growth in the

554 Ibid. Lady Nunburnholme gave evidence to the Wolfenden Committee on behalf of the Council about men’s accosting of women. She explained, ‘I am extremely old. During the black-out I was picked up time after time I had a technique; I used to have a torch and flash it on my face, and say: “Sold again, my lad. I am old enough to be your grandmother”’(PRO: HO 345/13). 555 Cited in ‘Proposal To Relax Law On Homosexuality Report Urges No Penalty For Consenting Adults, Stronger Action Against Street Prostitution’, The Times, 5 September 1957, 7. 556 PRO: HO 345/13.

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activities of touts’ and so on.558 This outcome was of great concern to the ‘women’s

associations’. In evidence to the Committee Miss Peto argued that if prostitution were to be

‘shifted underground….all the experience shows that if you do do that, you are increasing the

degradation of the woman terribly’.559 Committee member Goronwy Rees acknowledged ‘it

would almost certainly lead to a greater exploitation of women by men’.560 As noted, Rees

resigned from the Committee mid-term, and the Committee decided in its combined opinion

that, this result ‘would be less injurious than presence of prostitutes in the streets’.561 The

Committee’s working definition of ‘injurious’ privileged only the potentially ‘offended’ bystander as subject.

The Church of England Moral Welfare Council submitted evidence to the Wolfenden

Committee including what may be viewed as surprisingly ‘liberal’ recommendations for homosexuality in its arguments for decriminalisation. The Council was dissatisfied with the

Report’s proposals for prostitution, stating that it found it ‘remarkable that in the extensive

study which has been made of prostitution, the part played by the men who resort to prostitutes

has been largely ignored’.562 In a novel move, the Council denied that prostitution was the

product of corrupt women, claiming radically that

when all else has been said, the fact remains that prostitution exists and flourishes because there are men - some of them morally unprincipled or lascivious, others devoid or contemptuous of self-discipline, and others still apparently unaware that fornication is a sin and a double moral standard ethically indefensible - who are willing to purchase (often at an exorbitant price) a momentary sexual entertainment and relief indiscriminately.563

557 Ibid. 558 Wolfenden Report, 96. 559 Ibid. 560 Ibid. 561 Cited in, ‘Proposal To Relax Law On Homosexuality Report Urges No Penalty For Consenting Adults, Stronger Action Against Street Prostitution’, The Times, 5 September 1957, 7. 562 Cited in, ‘Sexual Offenders And Social Punishment Church Council's Evidence On Prostitution’, The Times, 25 May 1956, 6. 563 Ibid.

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The Council defied the standard hypothesis that prostitution was inevitable and went further to situate both prostitution and the Report’s recommendations within a grander narrative of misogyny, stating,

in heaping scorn and abuse on the prostitute men have simply sought to relieve their own corporate sense of guilt as a sex by an unconvincing display of moral and social indignation against the women they have made their accomplices in wrongdoing – just as society has attempted to make the male homosexual offender a scapegoat for the general corruption of its sexual life. In each case there is an evasion of ultimate moral responsibility which has encouraged not only injustice, but much confusion of thought.564

The untouchable man: the true subject of the Wolfenden Report

Maxwell Fyfe had anticipated these criticisms. After having finished his tenure as Home

Secretary, he addressed his critics in the House of Lords in his new role as The Lord Chancellor

Viscount Kilmuir in the House of Lords. Fyfe was a long time proponent of the thesis that prostitution is inevitable, and tackled the accusation that the Wolfenden Committee had simply

‘swept the dirt under the carpet’, by enquiring of the Lords, ‘human nature being what it is, what practicable alternative can be found?’.565 Fyfe was adamant that prostitution was unable to be ‘abolished’ and that male clients could not justly be punished for their role in the trade. He seems to have been enamoured of Earl Winterton’s personal concept of justice, which simply privileged men.

The Lord Chancellor acknowledged criticism that ‘it is unjust to impose heavy penalties on the prostitutes while nothing is done to the men who consort with them’.566 Yet for Fyfe it was ‘not easy to see how this criticism could be met without overstepping the proper bounds of the criminal law’.567 He did promise that should a man harass a respectable (non-prostituted) woman, he may be proceeded against for conduct likely to cause a breach of the peace.568

However as shown, this was not the experience of the members of the National Council of

564 Ibid. 565 The Lord Chancellor, House of Lords, Hansard, 4 December 1957, 776. 566 Ibid. 567 Ibid, 777.

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Women, who had learnt that women should expect unfettered sexual harassment at least until their 70s, if not afterwards as well.

The blanket refusal to target men for soliciting sex from prostitutes was defended variously with

invocations of justice and with scathing attacks on the ‘logic’ of targeting poor men who

succumb to professional whores, in reasoning that reflected the contemporary gendered analysis

of the nature of prostitution and which illustrates the implicit subject status of men. In response

to the submission that men’s kerb crawling (soliciting) was equally as offensive as women

‘parading’ their trade, the Wolfenden Committee dismissed men’s culpability. The Report

apologises: ‘whilst we appreciate the reality of the problem, and we consider that it should be

kept under review, the difficulties of proof would be considerable, and the possibility of a very

damaging charge being levelled at an innocent motorist must also be borne in mind’.569 It would

be unfair to victimise men. Men are not the primary ‘offence’ of prostitution.

Typically women are the necessary villains in prostitution, and the Wolfenden Committee did nothing to dispel this belief. It invited women who worked as prostitutes to submit evidence in person, as some homosexual men had done at their own request. However The Times reported that women decided against testifying.570 Given the popular psychoanalytic rhetoric with which they were ‘diagnosed’ and ostracised in the Report, this should not be surprising. Helen Self suggests that it was in fact John Wolfenden who decided against hearing from the women, fearing that they might sway Committee members ‘in a particular direction’.571 In his memoirs

John Wolfenden only reminisces about the prurient anticipation the idea had aroused.572 It

appears that the Committee members were not so excited, or even interested, to hear explicitly

from those many, many men who in Kinsey’s opinion, like to use women as prostitutes for sex.

568 Ibid. 569 Wolfenden Report, 90. 570 ‘Proposal To Relax Law On Homosexuality Report Urges No Penalty For Consenting Adults, Stronger Action Against Street Prostitution’, The Times, 5 September 1957, 10. 571 Helen Self, Prostitution, Women and the Misuse of the Law, 120.

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Heterosexual men are the subject of the Wolfenden Report. The Report aims to protect men’s liberty, in their ‘right’ to purchase prostituted sex. But it is also concerned with the protection of men themselves. Women were viewed as the ruthless, manipulative actors in the commercial sex contract. The Committee briefly canvassed issues such as exploitation and corruption of,

‘those who are specifically vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical, official or economic dependence’.573 Yet

fundamentally, these concerns about women were dismissed, except with regard to the age of

consent. The exploitation of women in prostitution was dismissed by the Committee in their

findings based on a simple understanding of ‘consent’. Trafficking or explicitly non-consensual

prostitution was identified as the only problematic site of exploitation in the modern sex trade.

This was despite the specific consideration of potential exploitation based on economic

dependence, as noted above. However even trafficking was ultimately dismissed as a concern

for the Committee, which stated,

we have no doubt that behind the trade of prostitution there lies a variety of commercial interests….The evidence submitted to us, however, has disclosed nothing in the nature of ‘organised vice’ in which the prostitute is an unwilling victim, coerced by a vile exploiter. This does not mean that there is not ‘organisation’ in the sense of encouragement to willing girls and women to enter or continue upon a life of prostitution.

The present law seems to be based on the debate to protect the prostitute from coercion and exploitation. When it was framed, the prostitute may have been in some danger of coercion; but today, either through the effectiveness of the law or through changes which have removed some of the economic and social factors likely to result in a life of prostitution, she is in less danger of coercion and exploitation against her will.574

The contemporary orthodox theory was that prostituted women are morally bankrupt, selfish and dangerous and that this is probably due to some deficiency on their part. And it was feared that men succumbed to their wily professional ways when ‘fuddled with drink’ and

572 John Wolfenden, Turning Points, 137-138. 573 Wolfenden Report, 10. 574 Ibid, 100.

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vulnerable.575 The Wolfenden Report dismisses economic need as a motivation for prostitution by women, as ‘in these days, in this country at any rate, economic factors cannot account for it to any large or decisive extent’.576 The Wolfenden Committee rather found that although factors

such as ‘a bad upbringing, seduction at an early age, or a broken marriage’ might be relevant to a woman’s prostitution, in fact ‘many women surmount such disasters without turning to a life of prostitution’.577 Therefore it concluded, there ‘must be some additional psychological element in the personality of the individual woman who becomes a prostitute’.578 No such

analysis or interest was given to determining why individual men use women as prostitutes for

sex.

Contempt for prostitutes was a peculiar product of Victorian fears and paranoia over disease and

dangerous ‘lusts’ that was sustained into the 20th century, despite the advent of penicillin that in

part disarmed the threat of women and disease. The British Medical Association submitted

evidence to the Wolfenden Committee that features almost verbatim in the Report: that a

prostitute’s client is ‘most frequently an unaccompanied male who has taken alcohol and who

has probably no intention of seeking a sexual partner until solicited’.579 The Association reasoned that this observation justifies the primary goal of the Wolfenden Committee, to remove prostitutes out of sight, therefore out of temptation. The Association did concede that men might be responsible for some demand for prostitution, but as for the possibility of

‘controlling’ or punishing men for soliciting commercial sex it apologised, ‘this is not a matter on which we feel able to express an opinion’.580

Dr Eustace Chesser also dismissed the issue of punishing men. Chesser claimed it was simply a

matter of practicality: how might we distinguish between a man’s ‘normal’ solicitation and his

575 Eustace Chesser, Live and Let Live, 108. 576 Wolfenden Report, 79. 577 Ibid. 578 Ibid. 579 British Medical Association, Evidence Submitted to Wolfenden Committee, 53.

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‘commercial’ solicitation? For Dr Chesser, ‘a young man faced with the prospect of a lonely evening cannot be blamed for getting into a conversation with a girl, provided he does not make himself a nuisance when she fails to respond. It would be quite fantastic if encounters of this sort were to lead to an arrest’.581 The lack of interest in punishing men for their role in

prostitution belies an understanding that runs deeper than the mere impracticality of identifying

and justly trying men who curb crawl. It reflects the fantastic and misogynist belief held by the

Wolfenden Committee and others, that men in fact are the victims of heterosexual prostitution.

Protestations about ‘offence’, ‘morality’ and ‘innocent passers-by’ aside, one fundamental

premise of Wolfenden is the exploitation of the helpless, vulnerable and hopeless male in

prostitution.

Poor vulnerable men: the victims of prostitution as defined by the state

The Wolfenden Committee upheld the exploitation of male clients as a real harm, so much so as

to detract from the suggestion of women’s abuse. One recommendation of the Report is to

maintain as a major police target he who exploits his fellow man by living on the earnings of

prostitution. According to the Report,

it is an over-simplification to think that those who live on the earnings of prostitution are exploiting the prostitutes as such. What they are really exploiting is the whole complex of the relationship between prostitute and customer; they are, in effect, exploiting the human weaknesses which cause the customer to seek the prostitute and the prostitute to meet the demand.582

In Wolfenden, the only harm of prostitution aside from offence is the unscrupulous exploitation

of weak and vulnerable men. The Committee alludes to a commercial conspiracy of sorts,

preying on men’s feeble minds and bodies in a cleverly crafted milieu of ‘suggestion and

stimulation associated with alcohol, late hours and sensuous amusements’. The Report goes on

to list a lurid if dissociated parade of the co-conspirators men battle against immoral

580 Ibid. 581 Eustace Chesser, Live and Let Live, 105. 582 Wolfenden Report, 100. My emphasis.

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exploitation: ‘entertainments of a suggestive character, dubious advertisements, the sale of pornographic literature, contraceptives and ‘aphrodisiac’ drugs (sometimes all in one shop), and the sale of alcoholic liquor in premises frequented by prostitutes’.583 Yet women are identified

in the Report as free agents who in these modern times engage in prostitution typically out of

personal individual choice, rather than any particular economic need.

In Wolfenden men are the victims of prostitution in their exploitation by pimps (or ponces, the

term preferred in the Report). Yet, still they are not implicated in the crime of soliciting or

negotiating the prostitution contract. In response to submissions arguing that soliciting statutes

unfairly target women, the Committee took pains to juggle and explain the different culpability

of men and women engaged in the commercial sex contract. The Committee went further than

the Home Secretary, who bemoaned the impracticality or the disastrous consequences for

justice, of prosecuting men. The Committee rather maintained its distinction between

immorality and criminal harm along gendered lines. Clients are identified as immoral (though

weak and exploited). Women were identified as criminal. The Report states,

we should agree that from a moral point of view there may be little or nothing to choose between the prostitute and her customer. But….it is not the duty of the law to concern itself with immorality as such. If it were the law’s intention to punish prostitution per se, on the grounds that it is immoral conduct, then it would be right that it should provide for the punishment of the man as well as the woman. But that is not the function of the law.

It should confine itself to those activities which offend against public order and decency or expose the ordinary citizen to what is offensive or injurious; and the simple fact is that prostitutes do parade themselves more habitually and openly than their prospective customers, and do by their continual presence affront the sense of decency of the ordinary citizen. In doing so they create a nuisance which, in our view, the law is entitled to recognise and deal with.584

583 Ibid. Helen Self notes that this passage is taken directly from Abraham Flexner’s 1914 text, Prostitution in Europe and that Flexner’s book was frequently cited used to ‘establish the sort of “facts” that Wolfenden felt were so sadly lacking’ in his own Report (2003: 144).

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An ordinary aberration: the timeless paradox of prostitution law

A lot rests with the protection of the ordinary citizen. Presumably he is one not to engage in prostitution.585 Here lies the paradox of Wolfenden and much prostitution law. Prostitution is presented as an immoral aberration. The only feature protecting it from legal persecution is its moral (immoral), private nature, yet it is understood also as inevitable, perhaps necessary. It is

(obviously) not for the ordinary citizen, yet it is essential to modern society. As discussed, one fundamental rationale for the lack of a full legal assault on prostitution provided in Wolfenden is the inevitability of the practice. According to the Committee,

prostitution is a social fact deplorable in the eyes of moralists, sociologists and, we believe, the great majority of ordinary people. But it has persisted in many civilisations throughout many centuries, and the failure of the attempts to stamp it out by repressive legislation shows that it cannot be eradicated through the agency of the criminal law.

It remains true that without a demand for her services the prostitute could not exist, and that there are enough men who avail themselves of prostitutes to keep the trade alive. It also remains true that there are women who, even when there is no economic need to do so, choose this form of livelihood. For so long as these propositions continue to be true there will be prostitution and no amount of legislation directed towards its abolition will abolish it.586

Prostitution would seem to be quite an ordinary feature of many civilisations over many

centuries. Hence it follows that it is all but inevitable and thus to be tolerated legally (except

where you can see it). Despite its historical prevalence it is no reflection on the ordinary citizen.

It is a timeless aberration.

Wolfenden normalised prostitution. It decreed prostitution an inevitable immorality of modern

(and retrospectively, of ancient) society. Despite its universal significance however, prostitution apparently is so offensive to ordinary folk that it is not to be exhibited publicly. At least, women are not to exhibit it publicly. The focus on women soliciting as the primary criminal harm of prostitution is in keeping with the theme of the vulnerable exploited male. The primary offences

584 Ibid, 87. My Emphasis. 585 I wonder whom, if not the ordinary man, is engaged in the use of prostitutes. As discussed, Kinsey was adamant that in this era most men use women as prostitutes.

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of prostitution are (women) soliciting, (men) living on the earnings of prostitution, and the use of premises for prostitution (which involves brothel keeping and the running of disorderly houses). Those offences identified to exploit men are deemed harmful above and beyond mere immorality. A man soliciting a woman for sex is not so problematic as to risk the curtailing of liberties involved in invoking the criminal law. A woman soliciting sex is a threat to the public good.

Prostitution: inevitable or private? Having it both ways, the weak logic of Wolfenden

The Wolfenden Committee was intent on removing women from the streets by punishment, on exonerating men explicitly of the crime of soliciting heterosexual sex, and it seems, on hoping that the issue of prostitution would fall from the popular agenda once it was less overtly visible: just the outcome that the government had directed three years prior to the Report’s release. The government got the Report it wanted: one that blamed women for prostitution, made male clients untouchable, and hopefully moved the whole problem out of the view of the state and into a seedy hotel or cafe. Anywhere, out of sight. What the government appears not to have anticipated is the ‘logical’ conclusions of this approach, for the law concerning male homosexuality, that it too should be permitted to thrive in private. The Committee situated prostitution within a paradigm of privacy and inevitability. Presumably either would have sufficed, but in the absence of a cohesive and well thought-out theory of privacy, the Committee and the government seem to have fallen back on the redundant safeguard of ‘inevitability’. The government was committed to understanding prostitution as a matter of privacy, therefore of least bother for the law or the state. But when pushed about the inconsistencies involved in identifying a very visible trade as private (such as by the Archbishop of Canterbury in the

House of Lords), it flinched and came to rely on the ‘fact’ of the inevitability of prostitution to justify its lack of substantial intervention and policy in this area. But, in no other circumstance has the frequency of an offence had any important bearing on its legal status.

586 Wolfenden Report, 79-80. My emphasis.

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The dependence on the ‘inevitable’ nature of prostitution weakens the argument for privacy, and the argument of the Report entirely. The logic of Wolfenden holds that prostitution is a matter of privacy. The harm of prostitution is the offence to innocent bystanders who witness the transaction of commercial sex when it is conducted in public, on the streets. This analysis involves a contradiction because the harm of prostitution is identified within its public, visible manifestation of streetwalking, yet the institution of prostitution is defined as necessarily a matter of privacy. To work around this, the annoyance requirement was removed from the crime of soliciting. This move defined the very act of a woman loitering to solicit sex on the streets as a crime, even though no one may have complained of the offence that the Committee had defined as the absolute harm of prostitution. The offence, therefore the harm, is presumed. The sale of sex itself was considered a matter of privacy, but the location of this ‘private’ transaction was the key issue for the state.

But why is prostitution a matter of privacy? It seems the Report argues that it is private because it is inevitable, or possibly that it should be considered private because it is inevitable. But the two characteristics are unrelated, of course. At best the Report may be saying that prostitution is

a matter of privacy and by the way, it is inevitable anyhow. I think in fact that this is the intended lucid message of the Wolfenden Report and the Street Offences Act. The more honest message however would be, ‘we have decided that prostitution is inevitable. We don’t want to see it, so we have decreed it a matter of privacy and hopefully that will mean it will become invisible’. The two messages are not so different except that the latter concedes that the

delineation of prostitution as inevitable and as private in nature, in fact are normative constructs,

rather than mere observations. It would have been more sophisticated of the Committee to run

simply with the privacy rhetoric, but of course this would have been a complicated task, given

that it had argued consistently that the harm of prostitution is only its offence to the public. How

can a matter of privacy be defined by its public impact?

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Constructing privacy: the real project for prostitution of the permissive state

The designation of prostitution as a private matter in the Report is unfounded and unexplained.

The Wolfenden Committee saw no apparent need to justify the ‘obvious’ assumption, that prostitution (when conducted in private, away from the streets), is a matter of privacy. In fact

Jeffrey Weeks refers to Wolfenden as effectively ‘privatising prostitution’. That is, constructing it as a matter of privacy. Weeks states, the ‘Wolfenden strategy is based on a wholly artificial distinction between the personal and public, treating them as if they were natural and eternal categories, while actually constituting and delimiting them through legislative proposals’.587

The logic of Wolfenden rests on this concept of ‘privacy’ which is presumed in an illogical,

circular argument. According to Wolfenden prostitution is immoral by nature, but this is not the

concern of the law (unless such immorality involves a public display). The harm of prostitution

lies in witnessing it. Therefore prostitution conducted in private is not of the criminal law’s

interest. Its private nature determines its status as merely a moral issue. That is, an issue not of

criminal harm. But this is circular. In fact, its designated ‘moral’ nature determines its status as

private.

The Wolfenden Report opens with a designation of sexual practices as moral concerns.

Prostitution is included in this category:

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.588

It follows that matters of morality are matters of privacy for rational adults to contemplate and

judge for themselves. Hence, prostitution (except the nasty public version) is a matter of

587 Jeffrey Weeks Sexuality and its Discontents: Meanings, Myths and Modern Sexualities (London: Routeledge & Keegan, 1985), 54-55.

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privacy, beyond the concern of the law. This analysis fails to note (as does the analysis of

Jeffrey Weeks above), the exceptional difference between prostitution and the other listed sex acts. That is, its commercial nature which as stated, is the very feature which distinguishes adultery, fornication and all other sexual practices from prostitution.

Given the Committee’s mandate, to investigate the criminal nature of both heterosexual prostitution and homosexual behaviour, this bias may not seem surprising. For Weeks ‘there was nothing surprising in prostitution and (male) homosexuality offences being seen as a common subject for investigation. Not only had they been historically intertwined in legal practice but both were seen as evidence of a common problem: a decline in moral standards’.589

But I contend this is an odd, even illogical combination. Jeffrey Weeks is a leading proponent of the sociology of deviance spurred by the categories of Wolfenden, to which I refer briefly in

Chapter One in identifying the limitations of this sociological and political paradigm for comprehending especially the political interests of prostituted women (and women more generally).

The Committee’s basic recommendations were the non-criminalisation of private acts committed in the name of both men’s homosexuality and women’s prostitution, but the nature of ‘privacy’ in each category is staggeringly different. Subject to debate, the meaning of

‘privacy’ in the realm of the non-commercial may be able to be agreed upon.590 But the private nature of commercial transactions is dubious at best.

Because the Report first associates prostitution with homosexual sex and then proceeds further to associate it with adultery and fornication, it is able to present the blanket assumption that the

588 Wolfenden Report, 10. 589 Jeffrey Weeks, Sex, Politics and Society 2nd Edition, 239. 590 Weeks sees ‘privacy’ as problematic in the realm of (non-commercial) homosexual sex. For him the result of Wolfenden and the liberal construction of ‘privacy’ has been ‘confusion over the definition of

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issues at stake are similar, perhaps related. Weeks sees the Report as the product of a ‘search for a more effective regulation of sexual deviance’,591 suggesting that prostitution and homosexual activity were similarly marginalised practices. Therefore, they present similar problems.

However such an analysis discounts the crucial difference between homosexuality and prostitution: the inherent commercial nature of the latter. The Committee seems perhaps to recognise the limitations of its assumptions, but in a commitment to the ideal of all sexual matters as a concern of privacy, it managed to argue around the issue. For Wolfenden, the

‘problem’ (criminal or otherwise) with prostitution is its public nature. Its commercial, public nature distinguishes it from all other sexual relations and forms the essential unique ‘problem’ of prostitution. Yet the Committee was committed to the idea that sexual acts are a matter of privacy. How could the public commercial transaction of prostitution fit into an understanding of sexuality as private? Simply, by re-defining it as such. And here we see the concept of prostitution in private arise. The Wolfenden Report acknowledges the problem of prostitution as its public nature, but it determines some prostitution to escape this problematic nature.

Ostentatious street prostitution is further penalised, in accordance with Wolfenden’s recommendations. But ‘private’ commercial transactions are merely matters of moral concern.

This leaves questions unanswered over the private nature of a commercial transaction. For example, can a commercial transaction ever be fully private?

Wolfenden constructs prostitution (or a variant thereof) as a matter of privacy. Its presumption

from the outset links prostitution to private sexual choices such as adultery and fornication

despite the rather contradictory recognition that the criminal ‘problem’ is its public nature. And,

as the Report acknowledges, the law does influence and construct public understanding:

On the one hand, it is held that the law ought to follow behind public opinion, so that the law can count on the support of the community as a whole. On the other

“private” (especially with regard to homosexuality and pornography, where the definition constantly seems to shift) and over “consent”, which is crucial to the liberal approach’ (1985: 55). 591 Jeffrey Weeks, Sex, Politics and Society 2nd Edition, 242.

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hand, it is held that a necessary purpose of the law is to lead and fortify public opinion.592

As US feminist law Professor Beverley Balos notes, the influence of the Wolfenden Report has been far-reaching and long standing. In 2001 Balos published a study of modern criminal law textbooks which found that prostitution is discussed typically in a ‘sparse’ manner. Balos claims that ‘although feminist legal theory has influenced the treatment of rape and domestic violence in the casebooks, the stereotypical treatment of prostitution remains virtually unchanged’.593

Balos notes that the ‘casebook with the most extensive coverage of the criminalisation issue’ includes excerpts from the Wolfenden Report.

Another casebook describes prostitution as a ‘vice crime’ along with homosexuality, drugs and gambling.594 In one textbook the section on prostitution is preceded by the principal case of

Bowers v Hardwick in which the US Supreme Court upheld the constitutionality of Georgia’s sodomy statutes.595 For Balos,

the materials placed together leave little doubt that the questions raised about the criminalisation of homosexuality are closely related to the questions raised about the criminalisation of prostitution. The casebook’s viewpoint is that consensual homosexual activity is a moral issue and it questions whether the criminal justice system should intervene to regulate private consensual acts.

It raises similar issues regarding prostitution without any analysis of whether consent to sex for money is equivalent to consent for mutual pleasure or emotional intimacy….By highlighting the similarities between prostitution and homosexuality and ignoring the differences, the materials contribute to a misunderstanding of both prostitution and homosexuality.596

For Sheila Jeffreys ‘prostitution does not fit here’ with homosexuality.597 As Jeffreys notes, in

analyses such as that of Jeffrey Weeks (who does not contest the concatenation of prostitutes

and homosexuals in criminal law), ‘prostituted women and men are defined as a group of people

592 Wolfenden Report, 10. 593 Beverly Balos, ‘Teaching Prostitution Seriously (2001) Buffalo Criminal Law Review, Vol 4, 709. 594 Ibid, 715. 595 Overruled 23 June 2003 by Lawrence and Garner v Texas 539 US 558 (2003) 596 Beverly Balos, ‘Teaching Prostitution Seriously (2001) Buffalo Criminal Law Review, Vol 4, 735-736. 597 Sheila Jeffreys, The Idea of Prostitution, 95.

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striving for their freedom to practise their sexual tastes’.598 For Jeffreys the inclusion of women

who work as prostitutes in categories along with ‘other’ sexual minorities is inappropriate:

[Prostitution] is not a sexual practice for the women involved, and it was not ‘discovered’ and categorised as a perversion by sexologists in the same way. Prostitution, unlike the other practices, is performed for money and has nothing to do with the ‘sexual tastes’ of the practitioners.599

The myths of Wolfenden have not died; they have ‘transformed themselves’ to dominate academic legal, sociological and historical discourse.

Conclusions: cracks in the mythologies, Wolfenden concerned not with freedom, but with morality

‘Privacy’ and the importance of ‘choice’ to do as one pleases ‘behind closed doors’ is usually elevated as the defining ethos of the Wolfenden Report.600 The Report’s primary goal of state persecution and cloistering of women away from public view is rarely noted or emphasised;

Helen Self provides the exception. For Jeffrey Weeks the Report is the ‘period’s most influential liberal statement’, and he notes that it ‘articulated principles which, though themselves not new, were to provide the pragmatic basis for the limited, but symbolically significant, social reforms of the 1960s, and the framework for all the major “official” proposals of morality throughout the 1970s as well’.601 The focus of the Report for Weeks ‘is the distinctions it draws between morality and law. The duty of law is to regulate public order and to maintain acceptable (though by implication changing) standards of public decency, not to patrol personal life.’602

Weeks (unwittingly) captures the strange fundamental anomaly of Wolfenden. As I have noted, the Committee was careful to impress that it was concerned with problems of criminal harm (as

598 Ibid. 599 Ibid. 600 For example, see Martha Chamallas, ‘Consent, Equality, and the Legal Control of Sexual Conduct’, 782. 601 Jeffrey Weeks, Sex, Politics and Society 2nd Edition, 239.

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it defined ‘offence’), and that is was not concerned with problems of morality, which belong to

the private conscience of individuals. For Helen Self this misleading denial of a moral interest

in matters of ‘offence’ highlights ‘the frailty of Wolfenden’s argument, since a person’s

perception of what is “offensive” and “indecent” must be related to their moral values’.603 The

distinction between morality and offence that Self determines to be spurious, appears to go

unnoted in the routine descriptions of the Report. For Weeks, the Report is very much

concerned with morality: it provided a road-map for all of the state’s intervention in morality

for decades to come. Despite the protestations of Committee (and the state) that it was not

regulating morality, few seem to have been persuaded by this argument, or even to have heard

it. Wolfenden is typically understood in terms of morality; uninterrogated common sense tells

us that its paradigm that centres on ‘offence’ in fact concerns morality. Uninterrogated common

sense tells us that the state is still very much interested in regulating morality.

The insistence by the Wolfenden Committee that it is not concerned with ‘morality’ was aimed

to distance its findings and recommendations from the old view of the state which has been

depicted as overly and intrusively concerned with regulating and intruding on the private

(moral) lives of citizens. For the Committee, ‘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 of

behaviour, further than it is necessary to carry out the purposes we have outlined’.604 However,

rather than frame the argument in terms of the state’s retreat from or renegotiation of the

regulation of morality, Wolfenden reconfigures the state’s relationship to morality simply by

cannily redefining moral concerns as concerns of harm: Wolfenden tells us it is not concerned

with morality at all. Yet the concerns of the old state and the new state in fact are the same,

simply re-branded. The new direction for the state is concerned with the morality of offence. It

simply denies this fact with a reconfiguration of wording.

602Jeffrey Weeks, Sexuality and its Discontents, 54. 603 Ibid, 173. 604 Wolfenden Report, 10.

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The ‘old’ (pre-Wolfenden) relationship between the state and prostitution was worded in quaint

Victorian phrases of ‘vagrancy’, connoting images of the Queen’s subjects. Its relationship with men’s homosexual sex dated from Henry the VIII and was worded in even more archaic terms

than was its regulation of prostitution.605 The crimes of all men’s homosexual sex in private remained in statute until the Wolfenden Report was acted on in 1967 and the homosexual subject was targeted, supposedly in the spirit of ‘freedom within the law’. Contrary to John

Wolfenden’s contention that the Committee was guided by ideals of freedom, under the

freedom-inspired Street Offences Act 1959 women are persecuted more rigorously and severely

for prostitution than in any time in modern legislative history.606

605 The ‘detestable and abominable vice of buggery committed with mankind or beast’ had been made a criminal (no longer Ecclesiastical) offence in 1533: The Act of 25 Henry VIII, Chapter 6 (Hyde: 1970: preface). 606 In Chapter 8 I explain the history of prostitution in law.

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Chapter Five: a Bill Called William

No more wrong numbers, no more crossed lines, no more dead silence after dialling a number and no more queer clicks.607

‘No more queers clicks’ was the obscure promise of the Post Office when it opened Europe’s first electronic telephone exchange in 1967. 1967 was also the year that parliament ‘caught up’ with Wolfenden and passed the Sexual Offences Act after earlier attempts at partial measures were defeated throughout the 1960s. Although the Labour Party was responsible for the Bill in the sense that its two sponsors were Labour members, Antony Grey notes that there were supporters and opponents of the Bill within both of the major political parties: ‘some of the most vehement critics of reform were old-fashioned Labour MPs, who quaintly regarded sodomy as the vice of the idle, degenerate rich; while a solid phalanx of some 60 Tories, including Margaret Thatcher, voted for the Bill’.608

The purpose of this chapter is to debunk the myth that the demands of the permissive society led

to legal reforms concerning especially men’s homosexual sex. I have already argued that the

aim of Wolfenden was the control of the sexual subject, as an object of the state. In this chapter

I examine the passage of the Sexual Offences Act 1967 to illustrate that the partial

decriminalisation of men’s homosexual sex was not a response to the demands of the general

public. I identify the bizarre motivation of the act’s sponsor in the House of Commons as

wholly unrelated to any concept of the status quo or public interest. I focus particularly on the

role of Leo Abse in securing homosexual law reform. Despite his rich legacy, the motivations of

Leo Abse in law reform have, surprisingly, gone largely unexamined. I highlight the sentiment

of pity (and disgust) that was invoked to secure legal reforms, which were aimed not at

emancipation, freedom or even equality. In exploring the Act I focus on its special privacy

clause, which, implemented supposedly well into the throes of the permissive era, was aimed in

607 Gay News, ‘Ten Years After’ (1977) Gay News, 124, 11.

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theory at control, and in practice at persecution of homosexual men. The Sexual Offences Act was no call to arms of permissiveness.609 Despite what the mythology of the new state would

tell us, in passing the Sexual Offences Act the state was not acting for freedom or on behalf of

individual homosexual men.

The ‘metropolitan sound’: sex and politics in the news

With the Profumo scandals of 1963, sex and politics were in the news. The MacMillan

government had a rough year in 1963, with a slight from the European Economic Community

and unemployment reaching levels not seen since the war.610 Distraction came in the form of

Jack Profumo and his friends. If ever there was an exhibition of the desirable nature of sexual privacy it was Jack Profumo’s mid-life crisis. Profumo’s affair with 19 year old Christine

Keeler implicated him in a security breach because Keeler was also involved with Russian spy

Yevgeny Ivanov.611

The editor of The Times on New Year’s Eve 1963 characterised the year as one of ‘disillusion

and change’ for Britain:

Instead of a great debate on the terms of a Brussels agreement, for which the parties were poised, the nation was treated to a spell of “disclosures” in which politics seemed to consist wholly of spies, sex and scandal. The Radcliffe Tribunal on allegations arising out of Mr Vassall’s career as a spy, the exposure of Mr Profumo and the subsequent Denning inquiry, the trial of Stephen Ward culminating in his suicide between conviction and sentence, all waded laboriously through a bog of suspicion, rumour and innuendo.

The buzz of these events and imaginings, deserving to be called the “metropolitan sound”, filled the ear for long stretches of the year, until mercifully drowned by more agreeable noises from Liverpool. In the end the public appetite for that sort of scandal was surfeited, and people were brought to realise that public affairs cannot

608 Antony Grey, ‘Ungay Tories’, in Grey, Speaking Out, 107. 609 I do not provide a similar analysis of the passage of the Street Offences Act 1959. As the Wolfenden recommendations for prostitution were directed explicitly by the Home Secretary, the Act was passed (or bulldozed) with little debate. Helen Self provides a thorough account of the 1959 Act (2003: 174-177) 610 ‘Year of Disillusion and Change’, The Times, 31 December 1963, 13. 611 Roger Wilkes refers to Profumo’s affair with Keeler as a ‘ragged little wisp of gossip’ that eventuated in ‘the biggest scandal story of the 1960s, a tale of high jinks in high places, with illicit sex, spies, political intrigue, crime, passion, lies and the law all bubbling in the stew together’ (2003: 207).

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be profitably conducted in an atmosphere of unbridled rumour about the characters and private lives of the participants.612

In 1963 both state and society were still reeling from the scandals of Vassall, Burgess and

McLean, with the identification of Kim Philby as the ‘third man’.613 And they were

overwhelmed by Profumo. Both Helen Self and Frank Mort emphasise the destabilising nature

of the Profumo affair which indicated that ‘the early 1960s was a breaking up of social barriers

and a mixing of people who would not have socialised together a few years earlier’.614 Self notes how the main protagonists in the scandal, Stephen Ward and Christine Keeler, were

‘deeply involved in the colourful Notting Hill scene’, a centre of ‘vibrant black night life involving music, drinking and drugs’.615 Mort observes the anxiety of a once sheltered establishment coming to terms with a society in which ‘people and cultures collided in the most unfortunate ways’.616

According to the analysis of The Times, the Profumo affair ‘inevitably affected’ the position of

MacMillan as Prime Minister and Tory Leader, positions that were also at risk of the

electorate’s ‘disenchantment’ and a desire for ‘change for the sake of change, which was

natural, perhaps inevitable, after 12 years of government by one party’.617 Private Eye published

a satirical cartoon of ‘The Last Days of MacMillan’, while the Daily Mirror simply demanded,

‘WHAT THE HELL IS GOING ON IN THIS COUNTRY?’.618 For Martin Francis,

612 ‘Year of Disillusion and Change’, The Times, 31 December 1963, 13. The ‘overture’ to the period of 1963 scandal is considered by Lewis Baston to have been the Vassall affair of 1962, as referred to above in the editorial of The Times (2000: 59). John Vassall was a civil servant working for the British Embassy in Moscow from 1954 to1956. He was blackmailed over his homosexuality into spying for the Soviets ‘against his will’ while working for the Civil Lord of the Admiralty, Thomas Galbraith. The scandal broke in Vassall’s ‘fatal year’ of 1962. Vassall was imprisoned and Galbraith resigned. See John Vassall, Vassall: The Autobiography of a Spy (London: Sidgwick & Jackson, 1975). The press was ‘antagonistic’ to the scandal, and journalists angry at the imprisonment of two journalists for their failure to reveal their sources for the Galbraith stories to the Radcliffe Tribunal that investigated the affair (Baston: 2000: 59). 613 BBC History, ‘Harold Adrian Russell (Kim) Philby (1912 - 1988)’, Historic Figures, http://www.bbc.co.uk/history/historic_figures/philby_harold.shtml 614 Helen Self, Prostitution, Women and the Misuse of the Law, 236. 615 Ibid. 616 Frank Mort, ‘Mapping Sexual London’, 113. 617 Ibid. 618 In Roger Wilkes, Scandal: A Scurrilous History of Gossip, 212-213.

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MacMillan’s unfamiliarity with the new discourses of public sex driven by the ‘media frenzy over a sex scandal’ demonstrated to the public his ‘inept’ handling of the affair:

for all his public panache, MacMillan remained an inhibited introvert, especially with regard to sex. His long private cuckolding at the hands of his wife Dorothy and fellow Conservative Bob Boothby made issues of sexual conduct difficult and embarrassing for MacMillan to address privately, let alone discuss publicly.619

Again the head of state was at odds with the press and its explicit tales of sex. Ian Aitken who

broke the Profumo scandal, similarly observes that Profumo’s own fate of ‘resignation’ was

punishment not for what he did in private, but for what he said in public: ‘it wasn’t the fact that

he paid for the sexual services of two teenagers that brought Profumo down. It was the fact that

he lied about it to old school chums and cabinet colleagues when they dragged him from his bed

at 2am to interrogate him’.620 Private sex was not a problem for the state. Initially the

disenchantment of 1963 was marginally effective: in 1964 the Wilson Labour government was

elected on a manifesto promising an extensive program of reforms, but with only a majority of

five in the House of Commons to achieve it.621 However in 1966 the Wilson Government was

returned in a landslide.

The Sexual Offences Act: ten years in the making

In 1960 Labour MP Kenneth Robinson had called on the Government to implement the

recommendations of the Wolfenden Report. Home Secretary Rab Butler deflected the request,

warning that society was not yet ready for reform.622 In 1962 Welsh MP Leo Abse introduced a

‘modest Bill’ that proposed that police not prosecute offences revealed in the course of blackmail investigations and that all decisions to prosecute cases of consenting adult men

619 Martin Francis, ‘Tears, Tantrums, and Bared Teeth: the Emotional Economy of Three Conservative Prime Ministers 1951-1963’ (2002) Journal of British Studies, 41, July, 369. 620 Ian Aitken, ‘A Better Class of Scandal?’ (1994) New Statesman and Society, January 14, Vol 7, 4. 621 Stephen Jeffery-Poulter, Peers, Queers & Commons, 70, Antony Grey, Quest for Justice, 84. In 1965 Roy Jenkins was appointed Home Secretary to implement the reforms. When Jenkins died in 2003, Tony Blair commended him as ‘one of the most remarkable people ever to grace British politics. I will miss him deeply’ (BBC: ‘Roy Jenkins Dies’). 622 Patrick Higgins, Heterosexual Dictatorship, 127.

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having sex in private be referred to the Director of Public Prosecutions (DPP).623 The latter provision was aimed to curb police ‘enthusiasm’ and to impose uniformity on police practice.624

The Bill failed in parliament. Nonetheless, in July 1964 it became known that the DPP had

‘requested’ Chief Constables to consult him before prosecuting such cases.625 In 1965 Lord

Arran proposed a motion in the House of Lords to discuss homosexual law reform, from which

arose a Bill to decriminalise homosexual sex in private.626 Humphrey Berkeley introduced the

Bill in the House of Commons and although it was passed with a large majority, the Bill was shelved in the lead up to the general election.627 In 1966 Abse again introduced the Bill, and it

was passed. In 1967 the Sexual Offences Act became law.628

Lord Arran writes: passing the buggers’ bill

Arthur Gore was a journalist who wrote an idiosyncratic weekly gossip column in the London

Evening News, under the byline, ‘Lord Arran Writes’.629 Patrick Higgins and Jeffrey Weeks both describe Lord Arran as ‘eccentric’.630 Arran coyly referred to the Sexual Offences Bill as

‘the Bill’ or ‘William’.631 Antony Grey writes that Arran (known to all as ‘Boofy’) was a

‘curious mixture of schoolboyish informality and aristocratic hauteur’.632 Boofy was a ‘small, red-brick faced and snow-white haired man who talked volubly and excitedly, frequently ending his remarks with a “what-what?”, reminiscent of George III’.633 He struck Grey as ‘too

politically marginal and personally eccentric to be an effective champion. In fact he turned out

to be a shining specimen of noblesse oblige’.634

623 Ibid, 132. 624 Leo Abse, Private Member, 146-47. 625 Antony Grey, ‘Homosexual Law Reform’, in Grey Speaking Out, 35. 626 Patrick Higgins, Heterosexual Dictatorship, 132. 627 Lord Arran, ‘The Sexual Offences Act, a Personal Memoir’ (1972) Encounter, March 1972, 6. 628 Jeffrey Weeks, Coming Out, 176. 629 Antony Grey, Quest for Justice, 86. 630 Patrick Higgins, Heterosexual Dictatorship, 134, Jeffrey Weeks, Coming Out, 174. 631 Lord Arran, ‘The Sexual Offences Act, a Personal Memoir’, 3. 632 Antony Grey, Quest for Justice, 86. 633 Ibid. 634 Ibid. Boofy appears to have enjoyed assisting the vulnerable. He was very fond of badgers, which were increasingly becoming a threatened species. He had a pet badger (Grey: 1992: 86).

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Boofy Arran argued for the decriminalisation of private homosexual sex by evoking images of homosexuals as ‘disabled individuals who needed help’ and pity.635 For Stephen Jeffery-Poulter,

Arran’s persuasive speeches in the House of Lords were ‘eloquent and impassioned’.636 Arran

was not ‘pressured’ by reform societies such as the HLRS but ‘took the plunge’ himself.637

However he did work closely with the HLRS in the initial stages of the Bill’s progress.638 For

Arran, the ‘problem’ was straightforward: no man chose to be a homosexual.639 Moreover, there was ‘no ultimate standard of “natural” behaviour; indeed nature herself was always breaking her own rules. Who would be so obstinate as deliberately to forgo the love of a woman and children?’640 The motivation of Lord Arran for spearheading homosexual law reform is not

obvious, not even to himself. He was not overtly possessed of the ‘usual liberal syndrome’.641 In

1972 Lord Arran reflected in Encounter that he wasn’t sure of his own motives:

People ask me why I started the whole damn thing. Looking back I honestly don’t know. Exhibitionism? Because I went to Eton and I knew what it was all about? A hatred of injustice as exemplified in a case ten years earlier when a newspaper colleague went to prison over a case so contrived as to stink for ever in the annals of the police and the judiciary? I do not know my own motives anymore.642

Although the House of Lords was more ‘cocooned’ from the wrath of constituents than the

House of Commons, for a Lord to become a ‘major protagonist’ in controversial law reform was still to ‘invite opprobrium’.643 Arran believes that few men have been subjected to ‘such a

stream of concentrated filth’ as he was during the campaign for reform.644 He testified to the

‘private hell’ he endured during his campaign for law reform, having received a

barrage of obscene and anonymous letters; he became so afraid of blackmail that his female secretary was present whenever he saw young men in his office; and in November 1965 the walls of his office, his Club, and virtually every railway

635 Ibid, 135. 636 Stephen Jeffery-Poulter, Peers, Queers & Commons, 70. 637 Lord Arran, ‘The Sexual Offences Act, a Personal Memoir’, 3. 638 Antony Grey, Quest for Justice, 84-99. 639 Lord Arran, ‘The Sexual Offences Act, a Personal Memoir’, 4. 640 Ibid, 4. 641 Leo Abse, Private Member, 150. 642 Lord Arran, ‘The Sexual Offences Act, a Personal Memoir’, 3. The colleague to whom Lord Arran refers is Peter Wildeblood whose case I described in Chapter 3. 643 Ibid. 644 Ibid, 7.

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underground station in London was daubed with graffiti which read “ARRAN HOMO”.645

It seems not everyone was ready for the ‘permissive society’ after all. Arran spoke of letters he

received that were full of the most ‘fearful condemnation’.646 However, Lord Arran was also encouraged by the results of an opinion poll he commissioned in the Daily Mail which indicated that 63% of respondents were in favour of decriminalisation.647 Although Arran acknowledged

he ‘did not like’ opinion polls, he accepted them as ‘broadly correct’,648 and advised in the

House of Lords that two separate polls indicated the public’s support.649 The polls contradicted

Leader of the House of Commons, Richard Crossman’s 1967 observation that ‘the Bugger’s

Bill’

might be twenty years ahead of public opinion; certainly working class people in the north jeer at their Members at the weekend and ask them why they’re looking after the buggers at Westminster instead of looking after the unemployed at home. It has gone down very badly that Labour should be associated with such a Bill.650

Crossman was not unsympathetic in his pessimism: he was a longstanding member of the HLRS

Honorary Committee.651 Lord Arran appears not to have been perturbed by detractors, and spoke sympathetically in the House of Lords of the tragedy to which he was privy of homosexual men, who wrote to him ‘pathetic in their sincerity and placing their trust in me’.652

For Arran, their letters were ‘burdens even harder to bear’ than the vilification and abuse he endured.653 Arran’s empathy for homosexual men led Leo Abse and others to speculate about

645 Ibid, 84. 646 Lord Arran noted that ‘curiously enough, they all seem to quote Deuteronomy and Leviticus but never the Sermon on the Mount, except one letter from a man who calls the Sermon on the Mount “that masterpiece of appeasement”’ (in Grey: 1992: 109). 647 Lord Arran, ‘The Sexual Offences Act, a Personal Memoir’, 6. 648 Lord Arran, House of Lords, 28 October 1965, Hansard, 1283. 649 Lord Arran, House of Lords, 13 July 1967, Hansard, 1283. 650 Richard Crossman, The Diaries of a Cabinet Minister Volume Two (London: Hamish Hamilton & Jonathan Cape, 1976), 407. 651 Antony Grey, Quest for Justice, 118. In his diaries, Crossman writes freely of the homosexual affairs of his undergraduate days at Oxford in the 1920s. See Anthony Howard, Crossman: The Pursuit of Power (London: Jonathon Cape, 1990) 24-25. 652 Lord Arran, ‘The Sexual Offences Act, a Personal Memoir’, 5. For example see House of Lords, 28 October 1965, Hansard, 680-683. 653 Lord Arran, ‘The Sexual Offences Act, a Personal Memoir’, 5.

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Arran’s motivation for law reform. Arran’s older brother was homosexual, and once Abse met a man who had been a lover of the Lord’s brother, ‘it was all clear’:

This older brother, who had for many years received psychiatric aid, died tragically only a matter of days after becoming the Earl. Arran succeeded to the title: it must have brought him much guilt. But it brought him, too, the opportunity to make a massive and brave act of reparation. Arran’s was a considerable contribution to making Britain a little more civilised, and by his courage, was indeed to make a fitting memorial to his ill-fated brother.654

Yet this was not Lord Arran’s own explanation for his actions. And he did not disclose his family tragedy to the HLRS.655

Lionheart Abse and the Freudian agenda of pity in homosexual law reform

Despite Lord Arran’s pivotal role, the Sexual Offences Act is very much the love-child of

Welsh MP, Leo ‘the lionhearted’ Abse.656 Indeed, Lord Arran hoped that the Sexual Offences

Act would be named after Abse.657 It is not recorded whether this thoughtful gesture was

appreciated.658 Leo Abse is a self-styled Freudian sophisticate solicitor. In the 1960s he had a vision, the transcendence of repression. During his heyday Abse was a busy MP, whom Edward

Pearce describes as ‘of more practical use than two Cabinet ministers in three’.659 Abse was

responsible for legislation enabling divorce reform, clarifying the legal status of vasectomy, the

registration of fathers of illegitimate children, and the decriminalisation of private homosexual

sex.660 The epithet ‘eccentric’ that has been deigned for Lord Arran might more be suited to Leo

Abse, who has published detailed Freudian analyses of Margaret Thatcher (Margaret, Daughter of Beatrice: a Politician’s Psycho-Biography of Margaret Thatcher), and of Tony Blair (Tony

Blair: The Man Who Lost His Smile). In 2000, aged 80 and prompted by the Monica Lewinsky

654 Leo Abse, Private Member, 150. 655 Antony Grey, Quest for Justice, 86. 656 Lord Arran referred to Abse as ‘lionhearted’, House of Lords, 21 July 1967, Hansard, 523. 657 Ibid. 658 John Wolfenden muses characteristically that he ‘personally got landed with a label which has probably been more embarrassing to my children than to me’, and that at one stage a rumour was circulating that his ‘rather distinctive surname had passed into some Middle European languages as meaning a practising adult male homosexual’ (1976: 145). 659 Edward Pearce, ‘Freudian Slips’ (2000) New Statesman 24 July, Vol 129, 58. 660 Ibid.

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and Bill Clinton affairs, Abse published Fellatio, Masochism, Politics and Love which, Edward

Pearce notes, ‘sustains 50 pages on the role of fellatio as a demonstration of the impulse to sexual self-abnegation in the male’.661

In his 1973 memoir Private Member (the phallic connotations of the title are not expanded on,

so I might only guess if it is related to a private insight), Abse is belatedly upfront about the

hypocrisy he identified in parliament’s decade-long refusal to implement the Wolfenden

recommendations. For Abse, the refusal was the product of individual members’ latent (and not

so latent) homosexuality they could not confront. Abse explains, ‘the resistances against

homosexual reform arose largely from the imperfectly resolved homosexual drives of some of

the Members themselves’.662 Abse holds to the ‘universality of bisexuality’.663 He argues that the masculine competitive atmosphere in the House of Commons is particularly conducive to

‘positive homosexual attachment to brother-substitutes’, which was unsettling to the professed heterosexual members.664 For Abse this is a problem peculiar to the Conservative Party, and thus law reform had to wait for himself and Harold Wilson’s Labour cabinet of 1964. Drawing on Freud’s aggression thesis in Civilization and its Discontents, Abse surmises:

The repressed aggressive impulses of so many politicians are, however, so violent that the feelings of identification created with other members of their party are not invariably powerful to contain them….With homosexual impulses inadequately desexualised and contained, any mention of a change of law meets resistance. There was too much uncertainty among too many in the Conservative Parliament.

Permitting more freedom to homosexuals was interpreted as a personal threat: unknowingly they equated relaxation of the law with the relaxation of the control which they were anxious at all costs to preserve over their own repudiated feelings. It was fitting that repeatedly my opponents should have taken as their rallying cry the assertion that “the floodgates would open” if the law were to be changed: for the flood they feared was the flood of their own desires, and the gates for whose security they were so concerned was really those of their own repressions.665

661 Ibid. 662 Leo Abse, Private Member, 145. 663 Ibid, 153. 664 Ibid, 145. 665 Ibid, 146.

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But Abse did not argue for Freud in the House of Commons. Abse views himself as a gifted tactician who carefully manipulated his argument for his audience. He considers his own insights to be unusually enlightened, and that ‘to have pleaded Freud would have alarmed too many in the House, insufficiently secure in their own heterosexuality to acknowledge their homosexual dispositions’.666 Instead, Abse invoked pity and re-asserted the collective

heterosexuality of the parliament, imploring,

I ask that those of us who are blessed with the emotional security of a heterosexual life, those who are blessed with a good wife and with a family, those who have the blessings of children, have we the right to demand this code of behaviour [celibacy] from those whose terrible fate it is to be a homosexual?667

Antony Grey notes that Abse’s tone was typical of those in parliament who supported reform,

with most of the Bill’s supporters at pains to emphasise their ‘aversion from homosexual

desires and their antipathy towards homosexual practices’.668 True to Freud, Leo Abse blames mothers for the terrible fate of their sons, opining that ‘manhood has to be learnt’, and ‘if an over-possessive mother ties her son to her with a silver cord so that the boy is enveloped in a feminine aura out of which he is never able to fully break and assert his masculine independence’, this might prove to be a problem.669 He also implicates absent and jealous or loveless fathers in the manufacture of homosexual men.670 For Abse it was a game, to win over the House of Commons members with the arguments they might comprehend, in their self- ignorant, unenlightened states. However Abse was arrogant if he thought his real agenda would pass unnoted. In 1965 he explained his true feelings in Man and Society, the journal of the

Albany Trust.

Man and Society ran from 1961 to 1973, and boasted such eminent contributors as Bertrand

Russell and Iris Murdoch. And, of course, Leo Abse. Abse’s article appeared after his ‘mild’

666 Ibid, 153. 667 Leo Abse, House of Commons, Hansard, 19 December 1966, 1070. 668 Antony Grey, Quest for Justice, 105. 669 Leo Abse, House of Commons, Hansard, 19 December 1966, 1078

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Bill was rejected in 1962. He explained its parliamentary rejection with his Freudian thesis about unresolved repressed homosexuality, and as the direct result of those whom ‘express such intense and, in such emotional language, such antagonism against the homosexual….the people who have not come to terms with their own homosexual component’.671 Reforming homosexual law, Leo Abse was acting for himself, implementing his personal agenda. In Man and Society Abse explains his vision for grand social reform, writing an occasionally inclusive call to arms that positions himself as the vanguard of the readership:

If we are going to alter the prevailing attitudes and gain more permissive legislation, then we must be prepared to insist that you do not accept arguments or views which are rationalisations or defence mechanisms, and must be prepared to probe into other people’s motivations. Unless those of us who are concerned with trying to alter laws which at the moment are bringing untold misery to so many millions of people are prepared to keep on creating an atmosphere in which we can have freedom to discuss the deepest motives of ourselves and other people – unless we are prepared to engage with the Puritans, to fight them, to probe their irrationalities, we shall never have the insight which a nation and a people must have if they are to grow to be a mature democracy.672

Despite his professed interest in ‘freedom to discuss the deepest motives of ourselves’, Abse did not disclose directly to parliament his motives for homosexual law reform. If his colleagues were as fragile about their heterosexuality as Abse suggests, they were hardly likely to own up to reading Man and Society and the deconstruction by Abse of their own homosexual repression. Although Abse wrote of ‘us’ and ‘we’ in the Albany Trust journal, he was largely implementing his own agenda in parliament. Abse proudly claimed to have refused to become the ‘puppet’ of the HLRS (despite acknowledging its ‘sophistication’), and argue for an age of consent lower than 21 as it had requested.673 Indeed as Jeffrey Weeks notes, Abse not once invited the HLRS to a drafting conference with the parliamentary draftsmen of the Bill, with the result that where the Act differed from the Wolfenden proposals it was more oppressive.674

For Weeks, both Abse and Lord Arran ‘failed to see the significance of the certain concessions

670 Ibid. 671 Leo Abse MP, ‘Sex and Politics’ (1965) Man and Society, No 8, Spring, 5. 672 Ibid. 673 Leo Abse, Private Member, 154. 674 Jeffrey Weeks, Coming Out, 176-77.

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they made to get the Bill through’.675 Although the Wolfenden Committee had recommended the age of consent be set at 21, the HLRS had lobbied for 18.

For Antony Grey and the HLRS, the compromises to the Bill struck by Abse and Arran, such as the age of consent, are the unfortunate and objectionable outcomes of the beliefs of the sponsors that it was imperative to be ‘over cautious’ to get the Bill through parliament, and in the case of Lord Arran, imagining that further amendments could be made in the near future.676

In 1977 Lord Arran unsuccessfully introduced a Bill to reduce the age to 18677 but it took until

1994 for the wishes of the HLRS to be reflected in statute.678 As far as Antony Grey is concerned, all the efforts of the HLRS were ‘firmly squashed’ by Leo Abse.679 While acknowledging some of the law’s ‘shortcomings’, Abse wanted no more ‘public discussion or action on what he felt was now an overworked topic’.680 In February 1967 Grey published an article in Arena Three criticising the limitations of the Act and advising that ‘anyone who believes that the passage into law of Mr Leo Abse’s Sexual Offences Bill, on which so many hopes are set, is going to bring the male homosexual into the promised land of legal equality with his lesbian sisters – or with heterosexual philanderers – had better have another think’.681

In 1973 Leo Abse concluded that he had played the tactical game well. Although he acknowledges that his arguments to persuade parliament were ‘fraudulent’ in their selective presentation, he seems to have contented himself that his own ‘intellectual corruption’ was

675 Ibid. In the House of Lords, Viscount Montgomery of Alamein, or Monty as he was known, proposed that the age of consent be set at 80, but quickly withdrew his amendment when he realised how much longer it would drag out the debate (Hansard, 21 June 1965, 332). 676 Antony Grey, Quest for Justice, 102. 677 Richard Davenport-Hines, Sex, Death and Punishment, 328. 678 On 24 February 1994 MPs voted to lower the age of consent for homosexual sex to 18 (Baker: 2004: 89). The question of equalisation returned to parliament in 1998. During three debates, which took place on 22 July 1998, 13 April 1999 and 13 November 2000, the House of Lords rejected a Bill to equalise the age of consent for heterosexual and homosexual sex to 16 years. The Bill was eventually passed by the House of Commons on 30 November 2000: Sexual Offences (Amendment) Act 2000 (Baker: 2004: 89). 679 Antony Grey, Quest for Justice, 127. 680 Ibid. 681 Antony Grey, ‘Promised Land?’ in Grey Speaking Out, 13.

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avoided during his battle for homosexual law reform.682 This despite his public characterisation of homosexual men as those whom had befallen a ‘terrible fate’, and other patronising caricatures. Once the Bill was debated in 1967 and passed Abse looked forward to its implementation ‘so that Britain, like a great deal of the civilised world, will be able to say that her penal law has, at least in small measure, been brought nearer the point where we can really and truly be proud of it’.683 Despite repeat affirmations of his own lucidity and psychoanalytical awareness, Abse was compelled to end his 1973 chapter on homosexual law reform with a decisive affirmation of his heterosexuality and his normalcy. In describing the morning after the all-night debate that secured the passage of the Sexual Offences Act Abse wrote,

I took my car out of the Westminster Palace Yard where the gaslit lamps were still shining, and drove through the dawn up the Mall towards my St John’s Wood home. My wife was in bed, still awake, anxiously awaiting me and my news: she took me in her arms. I needed her comfort. For nothing fails like success.684

For Leo Abse at home in 1967, everything was as it should be.

Abortion and Oedipus: the many agendas of reform

Leo Abse might be thought to be a true disciple, if not a psychedelic clad demi-God, of the

‘permissive state’. However his views on women and abortion are neither permissive nor progressive. In Private Member Abse displays a photograph of himself leading an anti-abortion demonstration in Manchester in 1973. Abse justifies his opposition to abortion with a scathing attack on the eugenics movement, which he accuses of controlling the Abortion Law Reform

Association (ALRS). Abse’s portrayal of the women of the ALRS is vitriolic in its misogyny.

ALRS administrator Alice Jenkins, despite her eugenicist leanings, could not have deserved the peculiar brand of unsolicited misogynist psychoanalysis of Leo Abse. Abse defames her for, among other heinous female crimes, child hating: ‘one suspects that although a mother of three she lived her adult life still unconsciously clinging to the cloacal theory of birth, a fantasy

682 Ibid. 683 Leo Abse, House of Commons, Hansard, 3 July 1967, 1502.

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entertained by so many infants: filth and children become curiously interconnected, and the differentiation between the two ambiguous’.685 His equal defamation of Stella Browne as a

‘loudmouthed ragbag’ who repudiated ‘all signs of her womanliness by dressing herself in aggressively unfashionable clothes that effectively covered such little feminine charms as she may have possessed’,686 might sound odd emanating from the champion of universal bisexuality and the civilised modern state. But is it? 687

Abse’s opposition to abortion appears to be routinely conservative, shrouded in deference to the ‘blessings of motherhood’.688 Rather than advocate sexual freedom and permissiveness for

women, as he selectively had for homosexual men in 1965, Abse decries abortion as women’s

‘enslavement’ and upholds procreation and motherhood as the loving forms of

heterosexuality.689 Remarkably, Abse has managed to adapt a Freudian diagnosis to expose and

explain abortion reformers, along with his parliamentary peers. Apparently abortion is an

extension of the Oedipus complex, whereby men who ‘evoking their initial feelings of

rejection as babes, release their hate upon all womenkind, working off their old scores against

mothers by slaying motherhood’.690 Clearly for Leo Abse, abortion is about men: men’s psychoses and men’s hateful agendas. Abse’s failure as late as 1973 to comprehend and discuss abortion as primarily concerning women exposes his ‘progressive’ leanings as limited.

His personal agenda for law reform might have been unrelated to any comprehensive sense of equality or justice. Rather, the megalomania in his vision for his own role in the modern state seems at time Machiavellian, if not bordering on the maniacal. Discussing his first attempt to

684 Leo Abse, Private Member, 158. 685 Ibid, 218. 686 Ibid. 687 The misogyny of Leo Abse seems comprehensive and widespread. Apparently for Abse, women as much as or more so than the state, posed the problem for homosexual men in the 1960s. In 1965 Abse wrote ‘after all, we all know the Mrs Grundys of this world. Who are the people who go around condemning other people’s promiscuity? Who are the people who pry out and are obsessed with prurient curiosity – search and seek out sin? We know quite well that the Mrs Grundys are the repressed women who have not led or lived or had the blessing of a full sexual life’ (1965: 5). 688 Leo Abse, Private Member, 221. 689 Ibid. My emphasis. 690 Ibid, 220.

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secure divorce law reform, Abse grandly forewarned ‘to everything there is a season….a time to plant and a time to pluck up that which is planted. There was now a need for hiatus. I had played my part as a catalyst. Soon the historical forces would erupt and the enemy would be overwhelmed’.691

The Abortion Act 1967 played a tactical role in the securing of the decriminalisation of men’s homosexual sex. Richard Crossman notes that community backlash directed towards the Labour party for its support of the ‘buggers’ Bill’ also had a ‘boomerang effect’ in creating a positive demand for the Abortion Bill, which Crossman understood as a ‘pretty popular measure, especially among working-class women’.692 For Leo Abse, the relationship between the two

Bills was troubling. As noted, Abse was opposed to abortion, and he dismissed the Abortion

Bill in his typical way as a ‘bespoke piece of tailoring well fitted to suit the temperamental

needs of a phallic narcissistic character type’.693 Abse was outspoken against the Bill until, he claims, he was ‘politically blackmailed’ for the first and the ‘last time’ in his political career.694

Abse claims it was made clear to him by many Members that if he pursued his objections to the

Abortion Bill they would withdraw their support for the Sexual Offences Bill.695 Abse had to choose between his combating of the greatest ‘assault upon a mother’, to ‘savage her creation in her uterus’,696 and his heroic championing of a civilised tolerance of pitiable homosexual men.

Abse chose the course of greatest fame, and succumbed to the ‘blackmail’. The Abortion Bill was made law in 1967.697

691 Ibid, 171. 692 Richard Crossman, The Diaries of a Cabinet Minister, 407. 693 Leo Abse, Private Member, 26. 694 Ibid, 228 695 Ibid. 696 Ibid, 226.

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Privacy: the gift of the House of Lords

The Sexual Offences Act is very much in the model of Wolfenden. In May 1965 Lord Arran told the House of Lords that John Wolfenden had written to him to say that he approved of

Arran and Abse’s Bill, and that it ‘laid down the basic principles’ recommended in the

Wolfenden Report.698 However, the strict privacy provision of the Sexual Offences Act was a gift from the House of Lords.699

The 1967 Act states that

(1) a homosexual act in private shall not be an offence provided that the parties consent thereto and have attained the age of 21 years.

It clarifies,

(2) An act which would otherwise be treated for the purposes of this Act as being done in private shall not be so treated if done (a) when more than two persons take part or are present; or (b) in a lavatory to which the public have or are permitted to have access, whether on payment or otherwise.700

697 For a an analysis of the Abortion Act 1967 see Sally Sheldon, Beyond Control: Medical Power and Abortion Law (London: Pluto Press, 1997). 698 Lord Arran, House of Lords, 24 May 1965, Hansard, 634. 699 Indeed, despite the credit given Abse, Lord Arran proudly considered the Act to be an achievement of the Upper House, which he believed to be ‘perhaps the least reactionary and most flexible of any western Parliamentary chambers’ (1972: 7). 700 Prior to the SOA 1967 (and after, for women and heterosexual men) public sex, involving men or women was regulated by the common law offence of outraging public decency, which includes ‘all open lewdness, grossly scandalous behaviour, and whatever openly outrages decency or is offensive and disgusting, or injurious to public morals by tending to corrupt the mind and destroy the law of decency, morality and good order’ (Home Office: 2000: 147). However such an act is not prima facie a crime, and no offence would be committed unless at least two people either witnessed the act or were able to do so (Home Office: 2000: 207). According to the 2000 Home Office review of sexual offences, Setting the Boundaries, the common law is used for approximately 60 prosecutions a year, often for situations such as ‘sexual intercourse in very public places, prostitutes “advertising” themselves in the window, or a person masturbating at the window of a private house’ (2000: 147). The privacy clause of The Sexual Offences Act 1967 remained in force until it was considered by the European Court of Human Rights (ECHR) in 2000. In 1996 Yorkshire police prosecuted five men for having group gay sex in ‘private’: in one of their own homes. ADT was convicted of gross indecency and given a two-year conditional discharge in November 1996. ADT took the case to the ECHR. On 31 July 2000 seven judges at the Strasbourg Court upheld the claim that the police action had violated fundamental principles by 'an interference with the applicant's right to respect for a private family life' under article 8 of the ECHR. The Court awarded ADT £20929.05 in damages and £12391.83 in costs (ADT v The United Kingdom (35765/97) [2000] ECHR 401). In 2003 the privacy clause was repealed in statute by the Sexual Offences Act (2003 c.42) Sch 7 Para 1.

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The ‘privacy’ of the Sexual Offences Act and of Wolfenden is routinely described in terms of a social utilitarianism. As I note in Chapter Two, this ‘privacy’ is often described in terms of liberalism, and ‘getting the balance right’ between individual rights, and public offence and so on. Privacy is typically described in terms of the right of the general public to be free from witnessing public sex. For example, Jeffrey Weeks identifies the approach of the Wolfenden

Report and the Sexual Offences Act as distinguishing between the role of the law to uphold standards of public behaviour, and the domain of morals, increasingly seen as a matter of private choice. For Weeks, embodied in this distinction is the freedom of adults to ‘pursue their personal ends without interference so long as the public were not unduly frightened’.701

However, the privacy clause of the Sexual Offences Act is not aimed to protect the general public from ‘offence’ or from ‘fear’. It is aimed to curtail men’s homosexual behaviours, and given his praise of Lord Arran and Leo Abse’s Bill, John Wolfenden would appear to have been in agreement with its aims.

Buggers’ clubs: the private world and the amending clause

Viscount Dilhorne was the architect of the Act’s privacy clause. Dilhorne gleaned his ammunition from Lord Goddard who brought to the consciousness of the House of Lords the hitherto unknown world of ‘buggers’ clubs’. Eighty year old Lord Chief Justice Goddard had grown sick and tired of prosecuting homosexual men in court and believed the Wolfenden

Committee had made a serious oversight in its assessment of homosexuality. Lord Goddard implored,

there is one thing the Wolfenden Committee did not deal with and did not even mention in their Report; and it is something I think, which would be greatly assisted if this Bill goes through. There is no judge who has to go on circuit, as I did for many years, who does not from time to time find that in various parts of the country….there are what are generally referred to as “buggers’ clubs” or associations or coteries of people who are given to this particular vice. They are often careful to see that they keep out young boys. Because they know that they get very heavy sentences if they are found out; but at these coteries of buggers, the

701 Jeffrey Weeks, ‘An Unfinished Revolution: Sexuality in the Twentieth Century’, 171.

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most horrible things go on. As a judge, one has to sit and listen to these stories which make one physically sick.702

Lord Goddard is the Chief Justice whom Ludovic Kennedy holds responsible for the miscarriage of justice of Derek Bentley’s execution in 1953.703 Lord Goddard appears to have

been highly influential to the Wolfenden Committee when he gave evidence over a decade

before the Sexual Offences Act was passed. John Wolfenden wrote that Lord Goddard got the

Committee off to a ‘splendid start in the important exercise of clearing our minds, taking our

bearings, setting our course, getting ourselves into context, whatever you want to call it; and I

am abidingly grateful to him’.704 Lord Goddard was ‘anxious’ to reinstate whipping for male

importuners and regretted that ‘it can no longer be given for that most detestable offence –

living on a woman’s earnings’.705 But apparently Lord Goddard had overlooked the ‘buggers’

clubs’ in his testimonies to Wolfenden.

In parliament Lord Goddard made up for his oversight and provided adequate information about

‘buggers’ clubs’ for Viscount Dilhorne to propose his amendment to the Bill, that ‘the

commission of any such act when more than two persons are present shall not be deemed to be

in private’.706 For Dilhorne, this provision was consistent with the Wolfenden Report, which sought to ensure that the law continue to regard as criminal ‘any indecent act committed in a place where numbers of the public may be likely to see and be offended by it’.707 However, it is

not members of the general public who are the subjects of the clause. The clause is aimed

squarely at the buggers’ clubs, frequented only as Lord Goddard described, by ‘coteries of

people who are given to this particular vice’. Public offence is not the target of the clause. In

fact, Lord Goddard seemed to suggest that the general public probably would not have heard of

buggers’ clubs; it was only his role as a judge that had made him privy to this private world.

702 Lord Goddard, House of Lords, 24 May 1965, Hansard, 665. 703 Ludovic Kennedy, ‘Trials and Tribulations’ (2002) History Today, July, 62. 704 John Wolfenden, Turning Points, 142. 705 In Helen Self, Prostitution, Women and the Misuse of the Law, 108. 706 Viscount Dilhorne, House of Lords, 21 June 1965, Hansard, 361.

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As far as Viscount Dilhorne was concerned, John Wolfenden must simply have overlooked

Lord Goddard’s buggers’ clubs. The Wolfenden Report is explicit in not providing a legal definition of ‘in private’. Thus it might be inferred that it is the role of parliament to do so.708

Left to parliament, the definition was strict and extreme. Lord Arran had never heard of buggers’ clubs, but despite initial opposition to the privacy clause, Arran was eventually persuaded by Viscount Dilhorne to support the amendment, ‘inasmuch as it was aimed at

“gang-bangs”:’709 Arran was not motivated by concerns of the general public but by the sexual

practices of homosexual men. The Earl of Huntington noted that the extraordinary definition of

privacy would alter the ‘whole basis of what, up until now, has been the law’,710 and in February

1967 Antony Grey on behalf of the HLRS warned in Arena Three that the provision would prove as oppressive and as equally conducive to blackmail as had the Labouchere

Amendment.711 Nonetheless, Viscount Dilhorne’s amendment was passed by a majority of 41 to

26.712

Viscount Dilhorne’s amendment did in fact have an impact on clubs, although it is unclear if they are the buggers’ clubs of Lord Goddard. In 1969 Antony Grey addressed the Parliamentary

Civil Liberties Group to explain that the Sexual Offences Act had merely placed homosexual

707 Ibid. 708The privacy clause of the Sexual Offences Act 1967 would appear to contradict the intentions of the Wolfenden Report which states, ‘our words “in private” are not intended to provide a legal definition. Many heterosexual acts are not criminal if committed in private but are punishable if committed in circumstances which outrage public decency, and we could expect the same criteria to apply to homosexual acts. It is our intention that the law should continue to regard as criminal any indecent act committed in a public place where members of the public may be likely to see and be offended by it, but where there is no possibility of public offence of this nature it becomes a matter of private responsibility of the persons concerned and as such, in our opinion, is outside the proper purview of the criminal law. It will be for the courts to decide, in cases of doubt, whether or not public decency has been outraged, and we cannot see that there would be any greater difficulty about establishing this in the case of homosexual acts that there is at present in the case of heterosexual acts’ (1957: 25). However, in 1965 John Wolfenden expressed to parliament his approval of the Act that ‘laid down the basic principles’ of his recommendations. 709Lord Arran, ‘The Sexual Offences Act’, 4. 710 Earl of Huntingdon, House of Lords, 21 June 1965, Hansard, 363. 711 Antony Grey, ‘The Promised Land?’, 14. 712 House of Lords, 21 June 1965, Hansard, 374. 8.4.3

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men in a similar legal and social position to that of the ‘common prostitute’.713 Grey warned that

since the Act there had been an increase in prosecutions for homosexual offences, and that

police methods of arrest, investigation and questioning ‘aroused considerable public distaste’.714

In particular, homosexual clubs were still being regarded by the police as ‘disorderly’. Grey told of a club in the Midlands that had been raided by the Police in 1968, of which the police (who had taken out membership to infiltrate the club) claimed activities took place of a ‘disgusting nature, comparable with the activities of Sodom and Gomorrah’.715 And the Recorder, fining the licensee £500, stated that ‘what was going on was intolerable by any standards, heterosexual or homosexual’.716 According to Grey, evidence was disregarded from several members of the club

that they were merely dancing, mostly in ‘the modern style where the partners did not touch one

another’.717 It is not clear whether dancing was at the heart of Lord Goddard’s concerns. He

confided only that after his speech, he received a lot of mail asking for the names, addresses and

phone numbers of the clubs.718

Viscount Dilhorne also succeeded in excluding the armed services from the Act. He

campaigned, but failed, to maintain the crime of sodomy, and merely repeal gross indecency or

the Labouchere Amendment, as Maxwell Fyfe had also rallied for. For Dilhorne, sodomy with a

person was no different from sodomy with an animal, and as bestiality was maintained as an

offence, he argued that men’s sodomy should also be upheld.719 The Archbishop of Canterbury stunned the House by providing details for his objection to the amendment, asking ‘which of us can really say that we know there is a big moral distinction between anal intercourse and oral intercourse? One hates to mention such things, but by doing so one is perhaps able to clarify the

713 Antony Grey, ‘Privacy and the Outsider: Address to the Parliamentary Civil Liberties Group’, in Grey, Speaking Out, 22. 714 Ibid. 715 Ibid. 716 Ibid. 717 Ibid, 23. 718For Lord Arran, ‘because of his humanity and humour, I could have kissed him. I don’t think his learned Lordship would have welcomed my salute’ (1972: 8). 719 Viscount Dilhorne, House of Lords, 21 June 1965, Hansard, 292.

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issue’.720 Maxwell Fyfe certainly hated to mention such things. Fyfe attempted to ‘use the words of the most reverend Primate’, but could only bring himself to utter the Latin per anum.721 In the

tradition of the history of the silence of the unutterable, in parliament, ‘sodomy’ and the discreet

‘gross indecency’ were the preferred terms by which to describe men’s homosexual sex.

Lord Arran was proud of his work. In 1967 he quoted Oscar Wilde that ‘yes we shall win in the

end; but the road will be long and red with monstrous martyrdoms’.722 He exalted the House of

Lords, ‘Today, please God! sees the end of that road’.723 And yet in his final hour Lord Arran

was cautious, pleading with homosexual men,

I ask one thing and I ask it earnestly. I ask those who have, as it were, been in bondage and for whom the prison doors are now open to show their thanks by comporting themselves with dignity. This is no occasion for jubilation; certainly not for celebration. Any form of ostentatious behaviour now, or in the future, any form of public flaunting, would be utterly distasteful and would, I believe, make the sponsors of the Bill regret that they have done what they have done. Homosexuals must continue to remember that while there may be nothing bad in being a homosexual, there is certainly nothing good.724

In a similar tone, Leo Abse claimed that ‘only those wilfully blinding themselves to the nature of our proceedings could suggest that the Bill would assist or approve of homosexual practices, or would condone any act of indecency against a youngster, or any public display of homosexual conduct’.725 For Antony Grey, the public denouncement of homosexuality was

unsettling: ‘I did not merely wince at this frightful stuff; I almost puked’.726 As Jeffrey Weeks

notes, it was hardly a ‘trumpet-call to freedom’ of the permissive society.727 Neither was the

Sexual Offences Act.

720 Archbishop of Canterbury, House of Lords, 21 June 1965, Hansard, 302. 721 Lord Kilmuir, House of Lords, 21 June 1965, Hansard, 304. 722 Lord Arran, House of Lords, 21 July 1967, Hansard, 522. 723 Ibid. 724 Ibid, 422-523. 725 In Antony Grey, Quest for Justice, 117. 726 Ibid, 126. 727 Jeffrey Weeks, Coming Out, 176.

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Tolerance & permission, historical revisions in homosexual law reform

For John Wolfenden the object of the Sexual Offences Act 1967 is to perform and realise tolerance and permissiveness as freedom in a civilised society that had made the aspirational leap of social progress. However, the object of tolerance that society is being directed towards is not evident, but rather ambiguous. One interpretation suggests that the Street Offences Act reassures society it need not tolerate the public nuisance of street prostitutes. In exchange for this positive right of freedom, society is compelled as a negative right of community responsibility, to tolerate and permit the choices of adults to have the sex they prefer in private,

including prostituted sex and men’s homosexual sex. This would fit with the classic descriptions

of homosexual law reform, such as that of Jeffrey Weeks for whom the 20th century is understood in terms of progress and an ‘unfinished revolution’ of emancipation.728 For Weeks this revolution is aided by Wolfenden which allowed adults to make sexual choices in private.729

However, another interpretation would suggest that the tolerance being asked of society by

Wolfenden is that of the state’s retreat from addressing homosexuality in private, and indeed,

prostitution by way of any aspect other than women’s street soliciting. The Street Offences Act

strikes a bargain with society: the state will sweep clean the streets of prostituted women, in

exchange for continued acceptance of its longstanding refusal to address prostitution as an

institution. Similarly the Sexual Offences Act bargains: the state will exile to privacy

homosexual sex, if society tolerates its decision to retreat from persecuting/regulating

homosexual men in private, as well as its decision no longer to condemn unequivocally all male

homosexual sex. Or perhaps, if Montgomery Hyde is correct about the general empathy of the

public for homosexual men, the bargain is in fact: the state will cease its purge of homosexual

men if society tolerates their exile.

728 Jeffrey Weeks, ‘An Unfinished Revolution’, 171-72. 729 Ibid.

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The Sexual Offences Act does not direct society to permit and tolerate homosexuality, for as noted, it maintains an extraordinarily narrow arena of legitimacy for men’s homosexual sex, by defining privacy above and beyond the privacy rights afforded the practices of heterosexual sex.

If anything, this narrow arena can be understood to further marginalise homosexuality and to affirm and legitimise the belief that the ‘general public’ need not tolerate homosexuality within its spheres at all. As Beverly Brown contends,

public spaces were not to be places of diversity and debate in which tolerance would be a civil necessity and ideally, consensus might be born out of the experience of everyday exposure to variety. On the contrary, difference and diversity were born to bloom unseen, cordoned of in the private domain.730

The Sexual Offences Act aims to silence and hide homosexual men from the tabloid press by

secreting them away in a fiercely demarcated zone of ‘privacy’, where they may legally and

quietly pursue their sexualities: elsewhere they are impermissible.

John Wolfenden’s story of the role and aim of the Report has long been contested along these themes. As noted, Stuart Hall interrogated the intention and effect of the Wolfenden Report in

1977. Hall asked,

was the legislation [of consent], in sum, a sort of restructuring of the moral sphere, which, under the veneer of permissiveness and liberalisation, actually tightened the control by the state and the law over moral conduct – regulating and tuning it more finely? Or was the logic of its tendency a more complex one?731

With regard to the Wolfenden Report, Hall concludes that it ‘must be “read” against a moral

climate directed not towards the liberalisation but towards the tightening up of the legal

regulation of moral conduct’.732 Similarly, in 1980 Frank Mort argued that the Report aimed to construct and enforce a new definition of the homosexual subject, one whom operates in the private sphere, defined as ‘consenting, privatised and person-focused’.733 The shuffling of the

730 Beverly Brown, ‘Troubled Vision: Legal Understandings of Obscenity’, 39. 731 Stuart Hall, ‘Reformism and the Legislation of Consent’, 7, 732 Ibid, 8. 733 Frank Mort, ‘Sexuality: Regulation and Contestation’, 42.

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homosexual subject into the private sphere allowed for different forms of regulation than the criminal law:

If the Report advocates the decriminalisation of certain homosexual practices in the private sphere, it does not envisage the total abandonment of strategies of regulation. Power is no longer to be exercised through the direct operation of the law, but rather through the mobilisation of a variety of non-legal practices. Henceforward, medicine, “therapy”, psychology, and forms of applied sociology are all envisaged as forming new principles of regulation. The dominant and institutionalised forms of those disciplines have indeed served to confirm the construction of homosexuality through the definitions of social deviancy, sickness or maladjustment.734

Tolerance it would appear, is not on the agenda, and perhaps ‘civilised tolerance’ was a ruse by

which to sell to modern society the state’s agenda for change. In fact for Mort, within

movements for gay liberation after Wolfenden, ‘in the struggles over redefinitions, legal

liberalism and tolerance come to be labelled as merely partial, and as ultimately oppressive’.735

Although Jeffrey Weeks positions the Wolfenden Report as a crucial landmark on an inevitable

continuum of ‘revolution’ (inevitable in his telos of capitalism), he also notes the contradictions

for homosexual liberation in the Report’s approach and effect. For Weeks, unlike Mort, the

contradictions are not inherent to the intention but rather, are a matter of practice failing to

honour theory:

The new approach relied on a clear distinction between the role of the law, to uphold generally acceptable standards of public behaviour, and the domain of morals, increasingly seen as a matter of private choice (the “Wolfenden Strategy”). In practice, this meant allowing, in the famous phrase “consenting adults in private”, adults to pursue their personal ends without interference, so long as the public were not unduly frightened. The actual implementation of the new legal framework was less clear cut, however.…. Regulation was changed, but not abandoned; the locus of control shifted. A form of sexual pluralism was recognised, but it was not fully legitimised.736

Weeks seems to accept at face value the Report’s distinction that men who desire to have homosexual sex in ‘public’ are not constitutive of the general public. Rather, they comprise a

734 Ibid, 43-44. 735 Ibid, 40. My emphasis. 736 Jeffrey Weeks, ‘An Unfinished Revolution’, 171-72.

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separate, newly private, marginal entity. The acceptance by Weeks of this rhetoric illustrates the hegemonic success of the Report’s dichotomy: public citizen, private homosexual.

Conclusions: evidence of the permissive state?

Perhaps then, we are clever, and since at least the late 1970s have been able to see through and beyond John Wolfenden’s superficial explanations of the Wolfenden Report. Perhaps we know better than Lord Wolfenden himself, what the Report really says. And yet, even those cautious about interpreting the benevolence of Wolfenden (such as Jeffrey Weeks), tend to fall back onto the Report’s categories of the ‘individual’, privacy and tolerance. As I have noted, Eric

Hobsbawm writes about this period in history as a triumph of the individual over society.737 The individual versus society bears resemblance to the binary formula provided by Wolfenden and promoted by Weeks, of the public citizen (society) versus the private homosexual (individual).

However, in the case of homosexuality, the individual does not prevail, but is silenced, marginalised and disenfranchised from the public sphere of society. He is defined as legitimate only in his privacy.

However, this is not the orthodox way in which the intention or effect of the Sexual Offences

Act is described. Usually, the idea of liberalism and some form of enfranchisement in the dominant discourse of the individual citizen (and for Hobsbawm, the individual’s conquest and success) is invoked to explain the state’s shift in 1967. The hegemonic success of the

Wolfenden Report and the 1960s permissive parliament has been so conclusive that in the face of evidenced marginalisation and persecution of both heterosexual women and homosexual men, the mythologies of modern individualism and tolerance prevail.

Having interrogated the mythologies of the 1960s permissive state, in the next section of this thesis I turn to one important component of these myths: the foil of the repressive Victorian

737 Eric Hobsbawm, Age of Extremes, 334.

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patriarchal state. In Section Two I illustrate a fundamental agenda of the Victorian state. That is, the protection or shielding of sex from the intrusion of the law. This agenda of the Victorian state informed Wolfenden and it connects with my overall thesis to illustrate that the mythology of 20th century progress, revolution and change in regard to sex is largely unfounded. The revolution of the 1960s state is a ruse.

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Section Two: In Search of the Sexual Subject, Objects of Victoria

A beautiful and attractive woman is perhaps the most attractive object in nature.

(Sir James Fitzjames Stephen 1863)738

Sexless and silent Victorians

Recent academic work has exploded the myth that the Victorians were silent on sex.739 In The

History of Sexuality, Foucault famously contests the repressive hypothesis with the observation that sex was so repeatedly spoken of that in fact ‘a whole web of discourses, special knowledges, analyses, injunctions settled upon it’.740 Far from there being pall of Victorian

silence, sexuality so was openly discussed in parliament, newspapers and journals that only a

‘fraction of the population could stay ignorant of the facts of life’.741 Foucault’s work

supposedly has signified a new shift, a new embracement of discontinuity in history that

provides a more insightful and intelligent view of both the modern and Victorian States.742

However, the revisionist analyses of Foucault and his disciples have not disrupted the mythology of a puritanical and oppressive state. Even in his own emphasis on medicine and homosexuality, Foucault supports the orthodox myths surrounding the objectives of the state.743

Within revisionism, the myth persists of a general sexual oppression and repression intended by the Victorian state itself.

Recent histories of the late Victorian period and its treatment of heterosexual sex have tended to focus on the rise of social purity movements.744 Feminist scholarship has brought to light the

complex agenda of the Victorian women’s movement, showing that social purity campaigners

738 Sir James Fitzjames Stephen, ‘Anti-Respectability’ (1863) Cornhill Magazine, Vol 8, September, 293. 739 Ginger Frost, Promises Broken: Courtship, Class, and Gender in Victorian England (Charlottesville: University Press of Virginia, 1995), 95. 740 Michel Foucault, History of Sexuality Volume One, 26. 741 Ginger Frost, Promises Broken: Courtship, Class, and Gender in Victorian England, 98. 742 Lucy Bland and Frank Mort, ‘Thinking Sex Historically’, 21-22. David Halperin notes Foucault’s important critique of modern liberal power (1995: 20). See note 68. 743 See David M Halperin, ‘Forgetting Foucault: Acts, Identities, and the History of Sexuality’ 44-49.

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were not necessarily anti-sex and simplistically prudish.745 But again, descriptions of the state have remained unrevised and continue to suggest sexual oppression. Nickie Roberts, for example, argues that the late Victorian state and its interest in sex may be typified by the passage of the puritan Criminal Law Amendment Act 1885. The Act raised the age of girls’ heterosexual consent, closed brothels and incidentally criminalised all men’s homosexual sex acts other than buggery (which was already a crime). Roberts targets reformers who lobbied for the 1885 Act as misguidedly persuading parliament, which ‘swallowed the purity agenda whole’, to instigate a new wave of sexual repression.746

For Jeffrey Weeks, 1885 was an annus mirabilis of sexual politics.747 Weeks sees the Criminal

Law Amendment Act as symbolic of the social purity movement, and the contradiction between its members’ humanitarian instincts and the ‘controlling impact they had on people’s lives, particularly working class girls and homosexuals’.748 Weeks critiques the ‘great crusades’ of the

1880s that spurred the Act for answering as much to ‘middle class anxieties’ as to gross sexual exploitation.749 The late Victorian state of the 1880s in particular, has been characterised in

orthodox histories as ‘clamping down’ on sex, motivated by a moral panic over women’s and

children’s prostitution, sexual trafficking and men’s homosexual sex.750 However, another explanation is that the myths of an anti-sex Victorian state are incorrect or exaggerated. As

Stearns and Stearns suggest, the myths of the Victorian state might have been propagated, in

744 For example see, Frank Mort, Dangerous Sexualities: Medico-moral Politics in England Since 1830 (London: Routledge & Keegan Paul, 1980), Judith R Walkowitz, Prostitution and Victorian Society: Women, Class, and the State and Lucy Bland, Banishing the Beast: Feminism, Sex and Morality. 745 For example see Sheila Jeffreys, The Spinster and her Enemies: Feminism and Sexuality 1880-1930 (North Melbourne: Spinifex Press, 1997) and Lucy Bland, Banishing the Beast. 746 Nickie Roberts, Whores in History, 253. As I have noted, Nickie Roberts has worked as a stripper and is a leading example of the prostitutes’ rights movement. 747 Jeffrey Weeks, Sex, Politics and Society 2nd Edition, 87. Ironically ‘annus mirabilis’ is Philip Larkin’s phrase to describe 1963, which he laments, he was too old and past it to enjoy. See Chapter One. 748 Ibid. 749 Ibid, 38. The work of Jeffrey Weeks, central to the first (modern) section of my thesis, is also represented here in this Second Section, in my discussion of prostitution law. Weeks has written prolifically on sex and the state, across both centuries. 750 Frank Mort does warn that although the Criminal Law Amendment Act 1885 appears to mark a ‘stronger move towards direct state regulation of sexuality’, the opinions and intentions of those involved

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part, in order to make the modern permissive state look good.751 After all, it was to the wisdom of 1888 that Lord Mustill would defer to uphold the right to sexual privacy and consent in

Brown. Reading Lord Mustill’s view, it would appear that the state of the 1880s in fact upheld sexual rights. How do Lord Mustill’s arguments disrupt the prevailing mythology of both the repressive Victorians and the permissive moderns: this is the question of this second section of my thesis.

In Section One I illustrated the puzzling contours of the ‘permissive’ mythology of the 1960s state. In this section I note the essential component of the permissive mythology that depends upon the myth of a necessarily puritanical Victorian state. To understand the freedom of the

1960s state we must examine its foil. Here I examine the ‘old’ state to ascertain its relationship to sex. When it comes to sex, what is the concern of the old state? What is the view of the nature of sex that informs the old state? And who is the sexual subject as understood by the old state? To accurately assess the mythology of the permissive state that would situate us a voyeurs of our dark past, I need to critically engage with this position myself. As voyeur of 1888, what do I see? I conclude that the view of sex is not so very different for both the new and the old state. Examining both the 1880s and the 1960s I detect a consistent, fundamental premise informing the state’s view of sex: one that privileges men’s liberty in the form of sexual access to women’s bodies.

The marital rape exemption: a predictable archetype of the past?

Lord Mustill has been applauded for his understanding of the ‘proper scope’ of the criminal law: self-determination and respect for privacy.752 Lord Mustill’s view is praised by those same applauders as a modern and sophisticated argument for the role of the state in its relationship to sex. However, when Lord Mustill came to make his case for the ‘proper role’ of the state, it was

in the move were divided and fragmented’. However he also characterises the Act as having signalled a ‘new, more coercive system of state intervention in the domain of sexuality’ (1980: 126 & 105). 751 Carol Z Stearns & Peter N Stearns, ‘Victorian Sexuality: Can Historians Do It Better?’, 627. 752 Richard Mullender, ‘Sado-Masochism, Criminal law and Adjudicative Method’, 384.

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not the assumptions of the modern 20th century permissive state that he invoked. Lord Mustill

did not rely on the Wolfenden Report or the Sexual Offences Act 1967 to make his arguments

for the supremacy of consent and sexual privacy. Instead, he invoked the authority of the 1888

Queen’s Bench case of Clarence.753

Clarence concerned the assault convictions of a man who had transmitted gonorrhoea to his

unwitting wife. The case is most well known for its affirmation of the marital rape exemption,

which until overturned in 1991, prevented women from seeking justice for forced sex in

marriage.754 Charles Clarence was convicted at the Central Criminal Court of assault and

inflicting grievous bodily harm (GBH) for his transmission of gonorrhoea to his wife. On

referral to the Queen’s Bench, Clarence’s convictions were quashed on the logic that his wife

had consented to the sex that infected her: thus there had been no assault (regardless of the

danger of the sex in question). The argument that Selina Clarence had consented to the sex that

had infected her was supported by the 17th century opinion of Sir Matthew Hale that a wife

gives her irrevocable consent to her husband on marriage.755 In the Queen’s Bench trials of

Clarence, Hale’s opinion on marital consent was confirmed for the first time in the common law.

After Clarence the marital rape exemption appears not to have been challenged in the courts for at least 60 years. Divorce complicated the standing of the exemption: after further enabling of divorce under the Matrimonial Clauses Act 1937, the exemption came to be tested and gradually eroded in law. The 1949 case of Clarke involved the charge of rape of a woman who was separated from her husband on the grounds of his persistent cruelty.756 The court affirmed

753 R v Clarence [1888] 22 QBD 23. 754 The initial appeal trial for R v R was heard in 1991 and the final appeal was heard at the House of Lords in 1992. See R v R [1991] 1 AII ER 747 and R v R [1992] 1 AC 599. 755 Sir Matthew Hale, ‘Concerning Felonies by Act of Parliament and first Concerning Rape’ in The History of the Pleas of the Crown Volume One (1736) Edited by GR Glazebrook (London: Professional Books Limited, 1971), 629. 756 Rex v Clarke [1949] 2 AII ER 448.

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that ‘as a general proposition of law’ a wife’s sexual consent in marriage is irrevocable.757

However, it was found that in this instance the consent impliedly given at the time of marriage

was interrupted by the separation order.758 In theory, a husband could be convicted of rape in such an instance, although James Clarke was found not guilty.

After Clarke the exemption was tested in 1954 in the case of Miller.759 Mr Miller was convicted

of common assault for the violence he employed to force sex on his wife. However, he was not

prosecuted for rape. The anomaly of unlawful assault and lawful ‘forced sex’ was one reason

cited for the eventual dismissal of the marital rape exemption. As Helen Pringle notes, ‘it is

difficult to overstate the absurdity of the position to which Judge Linskey came in Miller’s case.

That is, a man could be convicted for assault upon his wife but not for the aggravated assault

which it aimed to secure’.760 The treatment by the courts of sodomy forced on women is another absurdity that precipitated the gradual erosion of the marital rape exemption. In 1987 in

Kowalski, the Irish courts ruled although consent to sexual intercourse was irrevocably given on

marriage, consent to indecent acts (fellatio) must be sought and obtained from a woman on each

occasion, as positive, explicit consent.761 Mr Kowalski had forced vaginal sex and fellatio on his

wife, at knifepoint. He was not charged with rape but was convicted of indecent assault and

assault occasioning actual bodily harm.762

757 Ibid. 758 Ibid. 759 R v Miller [1954] 2 QB 282. 760 Pringle Helen, ‘Acting Like a Man: Seduction and Rape in the Law’ (1993) Griffith Law Review, Vol 2, No 1, 68. 761 R v Kowalski (1988) 86 Cr App R 339. 762 Ibid. Sodomy or ‘unnatural vice’ has long been considered by the courts as different from sex, even, or especially, in the context of marriage. In 1838 Mr Jellyman was indicted for having committed ‘an unnatural offence with his wife’ (Reg v Jellyman (1839) 173 ER 637, my emphasis). His wife testified that while in bed, her husband had penetrated her anally, that she had resisted as much as she could, and that he did not penetrate her ‘so much as he did six years ago’. Justice Patterson lamented that in a previous trial he had the misfortune to hear the case of a woman who had consented to anal sex with her husband. For Patterson it was a woman’s duty to resist such an attempt ‘to the utmost’. Although the offence of buggery (much like assault) did not involve a constituent component of consent, in Justice Patterson’s logic, if a wife consented to sodomy, she was an accomplice, ‘she would require confirmation, in the lack of confirmation there would be no convictions of either party’ for buggery. Although Mrs Jellyman testified to her lack of consent, her husband was found not guilty (Reg v Jellyman (1839) 173 ER 637). In the 1977 case of Hornby a husband discovered that his wife has spent the night

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For Lord Keith of Kinkel in 1992, the anomalies indicate the ‘absurdity of implied consent’, for it is ‘unrealistic to sort out the sexual intercourse from the other acts involved in the assault and to allow the wife to complain of the minor acts but not of the major and most unpleasant one’.763 R v R (1992) is understood to have overturned the marital rape exemption with the observation by Lord Keith of Kinkel that ‘there comes a time when the changes are so great that it is no longer enough to create further exceptions restricting the effect of the proposition, a time when the proposition itself requires examination to see whether its terms are in accord with what is generally regarded today as acceptable behaviour’.764 In the initial 1991 appeals judgment of R v R, Justice Owen described the marital rape exemption ‘as offensive a fiction as it is senseless’,765 suggesting that he did not believe it had ever been correct in law. The QC for

the case argued that there is no marital exemption: Clarence is incorrect. The criterion for

determining rape in marriage is whether the wife has made it clear she has revoked her

consent.766 As Colin Manchester et al. note, the impact in the change of law in 1991 is potentially ‘enormous’. Marital rape is the most common form of rape.767 And yet, despite its

centrality to rape law and sex law more generally, and despite authoritative statements about its

‘fictitious nature’, surprisingly little academic work has been undertaken exploring the origins

or the political history of the exemption. The marital rape exemption tends to be represented in

with another man. Hornby struck his sleeping wife across the face with a milk bottle, dragged her upstairs by the hair and raped her anally ‘knowing that she suffered from piles and saying “I’m doing this because I know it will hurt you”’ ( R v Hornby [1978] Crim LR 298). Hornby was sentenced to 3 years for assault and 5 years for buggery, to be served concurrently. On appeal, the sentence was reduced to 2 years for the assault and 3 years for buggery, concurrent. The Appeals judges acknowledged that the case was serious, but felt that the sentences of the trial judge ‘did not adequately reflect the provocation’ to which Mr Hornby was subjected (R v Hornby [1978] Crim LR 298). Mr Hornby’s marital privilege was understood as unreasonably provoked by his wife. 763 R v R [1992] 1 AC 599 764 Ibid. 765 R v R [1991] 1 AII ER 747 at 749 per Owen J. 766 Clare Dyer, ‘Call to Outlaw Marital Rape’ The Guardian, 28 February 1991, 8. This definition of marital consent assumes consent must be revoked, not sought or given. 767 Colin Manchester, David Salter, Peter Moodie & Bernadette Lynch, Exploring the Law: The Dynamics of Precedent and Statutory Interpretation (London: Sweet & Maxwell, 1996), 309.

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academic discourse as a set archetype of the past. In fact, it would appear to be considered in academia as not very interesting at all.768

Lord Mustill and Clarence

Despite the marital rape exemption having been dismissed in the early 1990s as archaic fiction, the ruling of Clarence has survived to be applied beyond marriage. Since 1992, despite its

‘Victorian morality’,769 Clarence has been cited in a number of cases, typically defining the

boundaries of consent.770 It is the modern authority of consent within sex and beyond, cited as

persuasive authority in cases ranging from rape to kidnapping, and even to negligent drunken

dentistry.771 For Lord Mustill in 1993 Clarence provided persuasive authority in determining the

modern limits of sexual privacy and consent.

768 Clarence has received a small amount of academic attention for its ruling on marital rape, but no historical analysis or in-depth analysis of the judgment has been presented. For brief discussions of Clarence and marital rape, see Michael D A Freeman, ‘“But if you Can’t Rape Your Wife, Who[m] Can you Rape?”: The Marital Rape Exemption Re-examined’ (1981) Family Law Quarterly, Vol XV, No 1, Spring, 1-29, Gilbert Geis, ‘Rape-in-Marriage: Law and Law Reform in England, the United States and Sweden’ (1978) The Adelaide Law Review Vol 6, No 2, June, 284-303, Jocelynne A Scutt, ‘Consent in Rape: The Problem of the Marriage Contract’ (1977) Monash University Law Review, Vol 3, June, 255- 288. Clarence also informs rape by fraud, and in this context the ruling is again typically discussed in a sparse manner. See for example, Simon Bronitt, ‘Rape and Lack of Consent’ (1992) Criminal Law Journal ,(6) 289-310, Michael Morland, ‘Rape By Fraud’ (1994) The Liverpool Law Review, Vol XVI(2), 115-131, Neil Morgan, ‘Oppression, Fraud and Consent in Sexual Offences’ (1996) Western Australian Law Review, Vol 26, 223-240, David Ormerod, ‘A Victim’s Mistaken Consent in Rape’ (1992) Journal of Criminal Law, Vol 56, Part 1, 407-413, Alan Reed, ‘Contra bonos mores: Fraud Affecting Consent in Rape’ New Law Journal, (1995) Feb 10, 174-6, G Syrota, ‘Rape: When Does Fraud Vitiate Consent?’ Western Australian Law Review (1995), Vol 25, 334-345, Jocelynne Scutt ‘Fraudulent Impersonation and Consent in Rape’ (1975) The University of Queensland Law Journal Vol 9, No1, 59-65. Clarence has also more recently been discussed in terms of disease transmission. However, again, the discussion has been brief. See for example, Clare Strickland, ‘Why Parliament Should Create HIV Specific Offences’ (2001) Web Journal of Current Legal Issues, 2 Web JCLI, David Ormerod, ‘Criminalising HIV Transmission: Still no Effective Solutions’ (2001) Common Law World Review, 30, 135-168, David Ormerod & Michael Gunn, ‘Criminal Liability for the Transmission of HIV’ (1996) Web Journal of Current Legal Issues, 1 Web JCLI, Damian Warburton, ‘A Critical Review of English Law in Respect of Criminalising Blameworthy Behaviour by HIV+ Individuals’ (2004), Journal of Criminal Law, 68, February, 55-77. 769 Charles Foster, ‘The Questions to ask a Husband (or Wife) Before Sex’, The Times, 21 October 2003, 6. 770R v Brown [1993] 2 AII ER 75, R v Linekar [1995] 3 AII ER 69, R v Burstow [1996] EWHC Admin 49, R v Cuerrier [1997] 111 CCC (3d) 261 (CACB), R v Richardson [1999] QB 444, R v Cort [2004] QB 388. 771 For examples of where Clarence has been considered, though not always upheld see Rex v Clarke [1949] 2 ALL ER 448, R v Miller [1954] 2 QB 282, Papadimitropoulos v The Queen [1957] 98 CLR 249, Sidaway v Bethlem Royal Hospital Governors and Others [1984] 1 AII ER 1018, R v Petrozzi [1987] 35 CCC (3d) 528, R v Mobilio [1991] I VR 339, R v Brown [1993] 2 AII ER 75, R v Linekar [1995] 3 AII ER 69, R v Cuerrier [1997] 111 CCC (3d) 261 (CACB), R v Cuerrier [1998] 2 SCR, R v Burstow [1998] AC 147, R v Richardson [1999] QB 444, R v Cort [2004] QB 388. In 2003 Clarence was tested and its authority on consent and sexually transmitted disease would appear to be in limbo. In October 2003

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For Lord Mustill, Clarence was of ‘general importance’ to Brown because as with the convictions for SM, Clarence also concerns convictions of assault under the Offences Against the Person Act 1861. Lord Mustill ‘found it easy to share the opinion’ of Justice Wills in

Clarence about prosecuting sex in terms of assault that

such considerations lead one to pause on the threshold, and inquire whether the enactment under consideration could really have been intended to apply to circumstances so completely removed from those which are usually understood when an assault is spoken of, or to deal with matters of any kind involving the sexual relation or act.772

Lord Mustill paused ‘on the threshold’ to ask himself the same question in regard to Brown and found that ‘no assault was disclosed on the facts’, of either Clarence or Brown. On the authority of Clarence, Lord Mustill would have dismissed the convictions for consensual SM. Lord

Mustill found the legislation in question in Brown, the Offences Against the Person Act 1861,

‘opaque’ to the SM activities, and the trials in precedent relied on for conviction to be

‘unhelpful’.773 And yet he found authoritative guidance in Clarence, decided over 100 years before Brown. The distinctions between the old and the new state, between paternalism and permissiveness, are entangled in Lord Mustill’s judgment. Lord Mustill, as the protagonist for the new vision for the state, finds his contemporaries in Victoria.

The Old State: the Offences Against the Person Act 1861

Mohammed Dica was sentenced to eight years for inflicting grievous bodily harm (GBH) by recklessly passing on HIV to two women with whom he had sex. Judge Philpot, the trial judge argued that the standing of Clarence as an important precedent has been ‘thoroughly undermined….and provides no guidance to a [first] instance judge’. Judge Philpot concluded that whether or not the complainants knew of the appellant’s condition, their consent, if any, was irrelevant and provided no defence. Accepting the Crown’s argument as advanced to him, Judge Philpot believed that the decision in the House of Lords in R v Brown deprived the complainants of ‘the legal capacity to consent to such serious harm’. On 5 May 2004 Dica’s appeal was allowed on the basis that Judge Philpot should not have withdrawn the issue of consent from the jury. On appeal Clarence was again dismissed as of ‘no continuing relevance’ and as no longer ‘authoritative’ on the question of consent to sex with risk of disease. Dica’s appeal commenced at the Inner London Crown Court on 21 June 2004. On 23 June 2004 the jury was discharged ‘for legal reasons’. A date has not been set for the new hearing (BBC, ‘Fresh Trial for HIV Accused Man’). See R v Dica [2004] EWCA Crim 103. 772 Justice Wills cited in R v Brown [1993] 2 AII ER 75 at 102 per Lord Mustill. 773 Ibid.

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To determine the interest of the old state in regard to sex, I begin my search with Clarence, first because the Victorian case provides the arguments for Lord Mustill’s ‘modern’ defence of the right to practise SM, and second, because in common law Clarence remains the modern authority on sex and consent more broadly.774 Although Clarence concerned heterosexual sex

within marriage, for Lord Mustill it is the appropriate authority on all sex. Lord Mustill

apparently attempted to extend the state’s vision for heterosexual sex to homosexual men. But

as the Sexual Offences Act 1967 shows, homosexual men are not to be treated by the state as

equal to their heterosexual peers.

In search of the sexual subject, the majority in Brown also turned to the decisions of the late

Victorian Bench. While the Wolfenden Report is usually seen as the authority on sex and the

new state, the Victorian authority of the Queen’s Bench and the Offences Against the Person

Act 1861 pre-informed Wolfenden. As I have noted, the Criminal Law Amendment Act 1885 is

usually elevated as symbolic of the state’s approach to sex in this period. However, the

Offences Against the Person Act is the primary Victorian statutory authority on sex, although it

has been largely overlooked by those who write about sex and the Victorian state.775 The 1861

Act was the product of an ambitious, but ‘doomed’, enterprise to codify the criminal law, recommended by a Select Committee in 1824 to relieve the statute books of over 20,000 Acts of parliament contained in 36 volumes.776 The Offences Against the Person Act covers both acts of violence and acts of sex, and was promoted as ‘a measure to protect the person’.777 The trials of

Brown, brought under this Act, found the 1861 Act lacking in its capacity to address SM in the

20th century.

774 Kate Gleeson, ‘Brutal at His Best: Sir James Fitzjames Stephen and the Doctrine of Sexual Inequality’ (Forthcoming 2005) Nottingham Law Journal. 775 Kim Stevenson, ‘Observations on the Law Relating to Sexual Offences: The Historic Scandal of Women’s Silence’. 776 Ibid. 777 Ibid.

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The Lords in Brown looked beyond the explicit legislation to the decisions of the Queen’s

Bench that had interpreted the Act. The majority decision in Brown, usually viewed as old- fashioned and archaic, predictably cited the authority of late Victoria. In particular, the first appeal of the Brown appellants was dismissed with deference to the 1882 trial of Coney, concerning prize-fighting.778 In Chapter Seven I also explore Coney to examine the different

treatment of consent in Coney and Clarence in order to illustrate the fundamental and ongoing

perspective of the state concerning sex and assault: that heterosexual sex is harmless by nature

and that an individual’s consent to assault is in essence a matter of public interest.

The Offences Against the Person Act informed the consolidating Sexual Offences Act 1956.

Kim Stevenson notes the limitations of the 1861 Act (and the 1956 Act) with regard to crimes

involving sex:

The Sexual Offences Act 1956 was predominantly a consolidating measure and drew on yet earlier law and philosophical approaches informing that law’s development. In particular, the Offences Against the Person Act 1861 which has been significantly overlooked and ignored in this regard. It is to these attempts that we must look when seeking to comprehend the present position. It is suggested that, despite its credentials in seeking to protect the person in the widest sense, the 1861 Act was largely ineffectual in controlling sexual violations and tended to reflect the mid-Victorian reluctance to address matters of such a “disagreeable nature”.779

According to Stevenson, those ‘limited philosophies or theoretical justifications, which were

employed, related to a sexual discourse influenced by respectable masculine prejudice’.780 In this section of the thesis I identify the ‘respectable masculine prejudice’ that informed the late

Victorian state’s relationship to sex. Stevenson identifies the fundamental limitations of the

1861 Act, in the drafting of which ‘no specific thought was given to the protection of the sexual female person (or sexual male person for that matter) from sexual violence’.781 With this observation in mind, I unravel the myths of the late Victorian state to ascertain its object and

778 The Queen v Coney and Others [1882] 8 QBD 535. 779 Kim Stevenson, ‘Observations on the Law Relating to Sexual Offences: The Historic Scandal of Women’s Silence’. 780 Ibid.

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motivation. If not concerned with protection from sexual violence, with what was the state concerned in its relationship to sex? And what were the underlying ‘philosophies and theoretical justifications’ that informed the state’s perspective on sex? How is this so different from the state by which we are now governed, celebrated as the product of the permissive revolution of the dynamic 1960s?

The state’s regulation of sex has been dominated ostensibly by concerns of consent and assault.

The state’s interest in sex is often conceptualised in terms of rape, in the common understanding. But understanding the relationship of the state to sex, and therefore to rape, is not straightforward. To understand the relationship of the state to rape and sex, we should also understand its relationship to prostitution. Although the Wolfenden Report posits men’s homosexual sex and women’s prostitution as the ‘twin vices’ to be understood in tandem, in fact, it is the relationship between the law’s treatment of rape and prostitution that is

intertwined, interdependent and related. Although the circumstances of the case did not concern

prostitution the Bench in Clarence was pre-occupied with prostitutes. The longstanding

assessment of matters of sex as mere matters of morality has meant that rape, prostitution,

seduction and women’s sexual harm have been treated as dangerously connected. The danger is

for men.

Along with my discussion of Clarence I include a chapter on prostitution in law to illustrate,

again, the fundamental outlook of the Victorian state in regard to sex: that sex is a commodity to

be taken, bought or ‘persuaded’ away from women. In this analysis, sex concerns a transaction.

The transaction of prostitution has formed the state’s interest in commercial sex, more than any considerations of sex itself. This view has been sustained and invigorated in modern discourse via Wolfenden. Men’s homosexual sex is not my focus in this section. Much academic work has focused on the Victorian birth of the homosexual identity in medicine and the trials of Oscar

781 Ibid.

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Wilde in 1895.782 The ‘overhaul’ of the 1950s and 1960s state has meant that the modern state

no longer looks beyond this horizon for its authority on men’s homosexuality. However, in the

case of heterosexual sex, the Victorian patriarch is still influential. Within legal treatment of

marriage and heterosexual prostitution I identify important myths of the state about the nature of

sex, such as the inevitability of prostitution and the non-criminal nature of rape in marriage.

These two myths were constructed by the state in the 19th century and have persisted in modern

legal and common understandings. The scant academic attention paid the legal treatment of sex

in marriage illustrates the profound success of the mythologies of the state. Just as I have argued

that the Wolfenden Report has propagated the myth of inevitable prostitution, the case of

Clarence transformed the legal status of women for over 100 years, based on a myth that has

gone largely uninterrogated.

In Section One I argued that the Wolfenden Report consolidated the position of the Victorian

‘common prostitute’ as the object of control for the 20th century state. It also sought to

constitute the male homosexual subject for similar purposes. In Wolfenden, the sexual subject is

the heterosexual male whose liberty, in the form of access to prostituted women and the

freedom from ‘offence’ of public sex, is upheld. Similarly, in the case of Clarence I detect the confirmation of the implicit heterosexual male as subject. Although Clarence concerns a

782 Jeffrey Weeks, Sex, Politics and Society, The Regulation of Sexuality Since 1800 2nd Edition, Michael S Foldy, The Trials of Oscar Wilde: Deviance, Morality, and Late-Victorian Society, Montgomery Hyde, The Other Love, Jonathan Ned Katz, The Invention of Heterosexuality (New York: Dutton, 1995), Kenneth Plummer Kenneth & Jeffrey Weeks (eds), The Making of the Modern Homosexual (London: Hutchinson, 1981). An ‘explosion’ of interest in 19th century sexology has accompanied these investigations. See for example, Michel Foucault, The History of Sexuality Volume One, Jeffrey Weeks, Sex, Politics and Society, The Regulation of Sexuality Since 1800 2nd edition, Lucy Bland & Laura Doan (eds) Sexology in Culture: Labelling Bodies and Desires, Sheila Jeffreys, The Spinster and her Enemies: Feminism and Sexuality, 1880-1930. According to Dana Sietler, ‘during the era of medicine's greatest professionalization, medical and sexological literature (as many queer theorists point out) emerged as a central and definitionally powerful site for "the invention of homosexuality." Most historical and theoretical accounts of this medico-scientific practice concentrate on refining and deepening our understandings of this process, detailing the ways in which questions of sexuality helped shape and were shaped by histories of American society, literature, and culture. Few scholars, however, have thrown the historical certainty of the medical assignation of homosexuality into question. More time has been spent stressing the emergence of the categorical idea of homosexuality to ascertain its impact on and within understandings of "culture" than in mapping out precisely how actual medical discourses and representations of perversion might either support or impinge upon that understanding’ (2004: 72).

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woman’s complaints of assault, the judgment acts to determine her lack of status as a sexual

wife. In both the old and the new vision for the state, whether it concerns men’s homosexual

sex, women’s prostitution or the sexual rights of a wife, the implicit sexual subject consistently

is the heterosexual male.

The project of the Victorian state of creating the implicit sexual subject of the heterosexual male has continued throughout the 20th century, uninterrupted and undeterred by a permissive break

or revolution. The complementary project of creating the sexual object of control – the wife or

the common prostitute or the homosexual man – has also been sustained into the 20th century,

embodied in the ethos of Wolfenden that would target women as prostitutes and would situate

the homosexual man as a object of the state, similar to the common prostitute.

Although I look to the past in this section, the point of this thesis is to write a history of the

present. The mythology of the present is that of the permissive state which stands in contrast to

the past: today’s state supposedly embodies civilised tolerance looking back over its shoulder

towards the prehistoric dinosaurs of its past. In Chapter Six I examine the work of the great

Victorian patriarch, James Fitzjames Stephen to illustrate his personal and political agenda for

sex, relative to today. In Chapter Seven I closely examine the Queen’s Bench trial of Clarence

to discern the interest of the Bench in addressing sex within (and outside) marriage, in the

1880s. And in Chapter Eight I explore the Victorian (and early 20th century) state’s approach to

prostitution, in legislation and in the common law, to reveal the genesis of Wolfenden and to

identify the consistent view of the state about the nature and role of sex in society.783 I discuss the Criminal Law Amendment Act 1885 to get beneath the standard rhetoric of ‘sexual repression’ to illustrate that the 1885 Act was in fact concerned with men’s sexual liberty.

783 Due to the nature of the genealogy that is law, it is difficult to provide discrete conceptual blocks of analysis that are governed by strict historical periods. Therefore, some aspects of 20th century law on prostitution feature in this section on Victoria.

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I draw on secondary sources in this section, less than I do in section one. This is because, particularly with regard to marital rape, and to Stephen, secondary sources are limited. In the recent ‘explosion’ of interest in Victorian sexuality, the wife has not been the focus. And

Stephen has been largely overlooked in political and legal histories of the period, especially in regard to sex.

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Chapter Six: Brutal at his Best, James Fitzjames Stephen and Clarence

A natural privilege, at once ontological and ethical, is granted to this dual, heterosexual relationship at the expense of all others (Michel Foucault 1984).784

In Brown, Lord Mustill cites the wisdom of Justice Wills in Clarence, that sex should not be

understood in terms of assault. Justice Wills was one of 13 judges of the Queen’s Bench who

presided over Clarence, the decision of which is generally considered to have been formed by

Justice James Fitzjames Stephen.785 The opinion of Stephen was supported explicitly by four of the 13 judges in the case, including Justice Wills. Similar to Wills, Stephen’s focus was on the nature of disease and assault as it is understood by legislation, and also on the implications of acknowledging that fraud vitiates consent to sex. Stephen argued to quash the convictions for assault with the direction that the concealing of venereal disease did not constitute fraud that would vitiate a woman’s consent to sex. For Stephen, ‘the proposition that fraud vitiates consent in criminal matters is not true if taken to apply in the fullest sense of the word’.786 In particular, sexual matters prove well beyond the ‘maxim that fraud vitiates consent.787

Clarence concerns the wife and the ‘marital obligation’. Michel Foucault notes that marriage is a social obligation that ‘no man must shirk’, comparable to the ‘duties that pertain to political life, religion and the family’.788 The special nature of marriage stems form its ‘oneness’:

The art of marriage is not simply a rational way for the spouses to act, each on his or her own account, in view of a purpose both partners recognize and in which they are united. It is a way of living together, and of being as one person. Marriage calls for a certain style of conduct in which each of the two partners leads his or her own life with the other, and in which, together, they form a common existence.789

784 Michel Foucault, The History of Sexuality Volume Three: The Care of the Self, Translated by Robert Hurley (New York: Vintage Books, 1984), 163. 785 Bruce McFarlane, ‘Historical Development of the Offence of Rape’, Canadian Criminal Law, 1993, 35. Sourced at http://canadiancriminallaw.com/articles/abstracts/Hist_rape.htm 786 R v Clarence [1888] 122 QBD 23 at 44, per Stephen J. 787 Ibid. 788 Michel Foucault, The History of Sexuality Volume Three: The Care of the Self, 155. 789 Ibid, 160.

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In modern law, in forming a ‘common existence’, the wife sublimates her individuality to the

‘oneness’ of her husband. The marriage bond is inherently dangerous for the wife who ‘risks being hurt not just by the loss of her status but by the fact that her husband might take his pleasure with someone other than her’.790 And yet, such danger is not only natural. It is an

obligation. The duties of the wife to subsist in the regime of ‘oneness’, and the perils they bring

with them, are closely related to the subordinate subject status of women in the law, especially

in the case of sexual consent and danger.

In this chapter I examine the leading ruling on the wife’s sublimation, Clarence, and the work of James Fitzjames Stephen. I focus on Fitzjames Stephen first, because of his role in formulating the judgment of Clarence, and second because of his pivotal role in the English criminal law. First I briefly introduce Stephen, to explain the ways in which he understood the nature and purpose of sex. I then move onto the Queen’s Bench trial of Clarence, the

circumstances of the case, and finally an elaboration of the views of Ftizjames Stephen, on sex,

morality and the criminal law.

The myth of the permissive state is one of distant Victorian repression. In this context, the

Victorian creation of the marital rape exemption makes sense: the marital rape exemption is a

signifier of Victorian repression and cruelty. However, the recent use by Lord Mustill of the

wisdom of Clarence and the Victorian Queen’s Bench signifies a complication of the standard mythologies. I want to ascertain what support Lord Mustill found in the Queen’s Bench of 1888 for the upholding of modern sexual privacy rights. I explore the marital rape exemption to determine if it is simply concerned with repression. What lies at the heart of this political and judicial construct? Might the marital rape exemption more profoundly be concerned with

790 Ibid, 167.

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freedom? If we are able to transcend our contemporary mythologies about the prudish past, perhaps we should not be surprised that Lord Mustill found wisdom in 1888.

In the next chapter I provide a detailed analysis of the decision in Clarence and its legal legacy.

Here I am more interested in the broader political and historical climate of the case. The marital

rape exemption is commonly depicted as simply an inherited convention from an even darker

past, the 17th century. However, I argue that this mythology is also inaccurate, for the exemption for marital rape was in fact a purposeful and political manoeuvre of the 1888 Queen’s Bench. In contrast to Stephen, I point to the work of John Stuart Mill in the same period in history, to illustrate that the views of the late Victorian ruling class were not homogeneous. The debates between Stephen and Mill of the 1860s and 1870s show that these were dynamic political times.

I use the work of Stephen in particular, to explode the permissive myth of that anti-sex

Victorian foil.

Critical historical analysis is imperative in assessing the role of precedent and genealogy in

criminal law, yet it is often overlooked. In particular, individual personalities of the Bench and

their personal contributions to interpreting or making law deserve more attention. The ‘old’

view of judges was that they merely declared the existing law. In 1892, for example, Lord Esher

voiced the widespread view that ‘there is, in fact, no such thing as judge-made law, for the

judges do not make the law, though they frequently have to apply existing law to circumstances

as to which it has not previously been authoritatively laid down that such law is applicable’.791

And this view is repeated even today. Yet judges do make law, influenced by their own prejudices, experiences and moments in history.792 And individuals do constitute the state.793

791 Wills v Baddeley (1892) 2 QB 32 at 326, per Lord Esher. 792 SA Farrer notes the profound limitations of the criminal law tradition that does not accommodate an analysis of the role of history. For Farrer, ‘In discussions on English criminal law, evidence and procedure, history appears to have only marginal relevance. English lawyers tend to work within a practical tradition that seeks to unravel and solve contemporary problems rather than to dwell on the past. So within this frame, when history is discussed it is often presented as posited, objective, uncomplicated and uncontested terrain. Yet history does not consist of objective accounts in which the facts speak for

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Ftizjames Stephen illustrates that far from what the mythology of the permissive state would have us believe about ‘repression’, the patriarch of the Victorian state was not ‘anti-sex’ or interested in denying sexual rights. Stephen’s writings and his judgments exhibit a strong respect for sexual privacy and non-interference from the state in matters of ‘personal relationships’, particularly in the context of marriage, but also beyond the matrimonial institution. In this view, sex was not devalued or prohibited. Sex was understood as a vital function of society in general and the nation as a whole. And it was understood profoundly in terms of men’s liberty and rights to individual sexual freedom. Men’s sexual desire, and sexual

‘need’ is overwhelmingly privileged in the approach of the Victorian state to sex.

Fitzjames Stephen: the archetypal Victorian patriarch

Sir James Fitzjames Stephen has provided a thorough and detailed legacy by which to illustrate his personal agenda for morality and the criminal law. Stephen was the foremost chronicler and codifier of the criminal law.794 He authored repeat editions of the Digest of the Criminal Law as

well as his History of the Criminal Law of England in three volumes in 1883. He authored a

detailed scathing response to John Stuart Mill in 1873, entitled Liberty, Equality, Fraternity.795

Stephen was also a prolific and opinionated journalist, publishing ‘endless articles’ in the Pall

Mall Gazette, the Sunday Review and the Cornhill, all ‘impressed by a stamp of their own; all marked by aggressive vigour; all expounding with fearless logic his favourite doctrines’.796 At

the Queen’s Bench, Stephen presided over cases the judgments in which are followed today.

Stephen’s opinions of the 1880s were promoted in Brown in the arguments of both the majority

themselves. Rather, facts are selected, interpreted and constructed within evaluative frameworks that generate an image of history’ (2001: 331). 793 I acknowledge that along with individuals, institutions and laws constitute the state. However, in the case of rape in marriage, I argue, that the role of individual men acting for the state was profound. 794 Stephen is described by KJM Smith as a ‘Victorian rationalist’ who contributed notably to ‘the intellectual climate of mid and late Victorian England’ (1988: x). Judith Knelman refers to Stephen as a misogynist (Rowbotham & Stevenson: 2003: 197). 795 Sir James Fitzjames Stephen, Liberty, Equality, Fraternity, edited by RJ White (Cambridge: Cambridge University Press, 1967). 796 ‘Death of Sir James Stephen’, The Times, 13 March 1894, 11.

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and those in dissent. However, today, Stephen is often overlooked in histories of the period and of the criminal law.

In 1958 Lord Devlin unwittingly replicated Stephen’s arguments about morality and the criminal law, although he knew little of Stephen. Stephen is out of favour with modern history.

Even at the time he died in 1894, Stephen would appear to have been considered a relic of the past, not wholly relevant to the modern world in which the discourses of equality and individual liberty, which he resisted, had come to prevail. In Stephen’s obituary in The Times it is noted that his aggressive opinions were ‘unpalatable’ even to his own generation.797 In particular, his treatise against John Stuart Mill is described as an ‘unflinching and fearless advocacy of opinions distasteful to most men’.798

Stephen was fiercely opposed to the practice of equality and was described fondly in his obituary as a relic of a harsh Benthamite past, who had persisted into the modern ‘sentimental’ world: ‘often in years to come, when sentiment is tyrannous and when people are afraid to speak plain, because unpleasant, things, will this sturdy spokesman of stern truths, the last of the

Benthamites, be missed’.799 However Stephen would appear not to have been particularly

missed in political and legal history. He has barely been remembered. Even Lord Devlin who

was very impressed with Stephen’s book, once it was brought to his attention, knew little of him

in 1958. The mythology of the modern state might tell us that the relics of the past no longer are

relevant: the erasure of James Fitzjames Stephen from our contemporary view of the state and

the criminal law is understandable; Stephen belongs to the past, one of those old ‘dinosaurs’

who no longer warrants attention.

797 Ibid. 798 Ibid. 799 Ibid.

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Roland Barthes notes the function of mythology in creating the history of the present as natural and eternal: mythology does not deny things, ‘on the contrary, its function is to talk about them’.800 What mythology does not talk about, might understandably disappear. Stephen has not been denied, but in the mythologies of the modern state, he has not been celebrated. However, such mythologies are misleading: cracks appear in these myths when we note that Stephen is cited and upheld in Brown. Perhaps even the invisible (embarrassing) remnant of the Victorian patriarch is still amongst us. In his tenacity, Stephen disrupts the mythology of the permissive state and the 1960s break with the past.

Stephen and sex: a libertine at heart?

Stephen’s work illustrates his personal understanding of the role and purpose of the English criminal law, as well as his ideological and political engagement with discourses of modern democracy. Stephen had a compelling interest in morality and its relationship to the law. In his

History of the Criminal Law he explained his view of the criminal law as a moral instrument, writing,

no department of law can claim greater moral importance that that which, with the detail and precision necessary for legal purposes, stigmatises certain kinds of conduct as crimes, the commission of which involves if detected, indelible infamy and the loss, as the case may be, of life, property and personal liberty.801

In 1863 Stephen promoted his views on the modern novel and modern sexual relations in general in an article for the Cornhill Magazine, entitled ‘Anti-respectability’.802 For Stephen,

respectable behaviour is imperative to society, but it is not to be compelled of men. Social

convention must strike at the heart of women’s pride and need for social acceptability in order

to command respectable behaviour. A woman’s lack of status in the economic/labour world

meant that her dependence on social approbation, and a sensible fear of social sanctioning and

ex-communication, made her the appropriate conduit for society’s respectability imperative. For

800Roland Barthes, Mythologies, 143. 801 Sir James Fitzjames Stephen, A History of the Criminal Law of England (London: Macmillan & Co., 1883), ix.

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a woman without economic status, social respectability was vital. Unlike economically independent men, a smart woman could be trusted to be respectable:

Women – in the present state of society – are so much more dependent on the opinion of the world than men, and are so much more delicately framed than men in body, mind and spirit, that there is a far better prospect of producing the desired result in their case than in the case of men. If a woman is put out of her social synagogue, what can she do?

She has nothing to give to the world which the world cannot get elsewhere; she is dependent on others for all that makes life not only agreeable, but even tolerable, and being by nature infinitely more susceptible than men to the pleasures and pains produced by the praise or blame of others, she is much more likely to be affected by the prospect of losing the one and incurring the other.803

For Stephen, respectability concerned sex: women’s resistance to the sex of men. Stephen

defended ‘the double standard’804 rationally and pragmatically as ‘by no means a mere piece of

unrighteous partiality. It rests on a solid basis, namely the difference between the relation in

which society at large stands to the two sexes, and the different degrees of power which it has

over them’.805 Society pays ‘very little attention’ to a man’s ‘private failings’.806 Therefore, men are not imperative to society’s respectability.

In ‘Anti-respectability’ Stephen does acknowledge that the double standard is not a natural state of affairs, that it ‘may or may not be true that we should all be happier and better if women ceased to stand in that dependent relation to men which they occupy in all parts of the world; but so long as they do stand in that position, the world will be consistent in enforcing by inexorable sanctions a severe moral discipline upon them, and not upon men’.807 However as I explain shortly, Stephen had in fact decided that equality for women, and in general, was misguided and dangerous. Not only would social sanctions be ineffective on men who survived on the status of the public/economic/labour sphere, such sanctions or intrusions would also be

802 Sir James Fitzjames Stephen, ‘Anti-Respectability’, 282-294. 803 Ibid, 289. 804 Michael Mason, The Making of Victorian Sexual Attitudes (Oxford: Oxford University Press, 1994), 59. 805 Sir James Fitzjames Stephen, ‘Anti-Respectability’, 291. 806 Ibid.

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unjust. Men’s sexuality was constructed by the Victorian state as a right of freethinking men which must be upheld. If this right were not upheld men would revolt, and if they did not revolt, then disastrous ‘evils’ would be unleashed on society in the form of masturbation and sodomy.

For Stephen,

if any attempts were made to enforce male chastity by the same sanctions as are and can be applied to women, the social penalties guaranteeing it would be defied by so large and powerful a minority, the system could not be supported. Men are too strong to be held by such bonds. The attempt to impose them would produce evils which cannot properly be described, but would be felt in every household in the kingdom.808

Men were also too valuable to economic and public life to sanction their immorality: the ‘world

at large needs its individual members as much as they need it’.809 The valuable ‘individual

members’ of society are exclusively male: the ‘politician, a country gentleman, a banker, a

merchant, a tradesman, an artist, an author, a doctor, or fifty other things’.810 And in this capacity ‘he has something to give to a certain number of his fellow-creatures, which they cannot get without considerable inconvenience elsewhere’.811

The respectability imperative: the crux of Victorian sex

Here I briefly explain what the respectability imperative meant for women in law. While the permissive mythology might tell us that the Victorian state was simplistically afraid of sex, the reality of the respectability imperative is more complicated than a simple fear. Sex itself was not the threat; it was a problem of gender. It was the respectable woman’s duty to the nation to resist a man’s immorality and maintain the respectability of society: men are sexual and respectable women must resist them, for the sake of society. This clearly creates a paradox and the non-respectable woman, the common prostitute, was demarcated as the ‘necessary evil’ of respectable society. The respectability imperative curtailed a woman’s capacity even to speak of

807 Ibid, 292. 808 Ibid, 290. 809 Ibid. 810 Ibid. 811 Ibid.

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sexual harm. And, the limitations of understanding sex in terms of morality, together with the emphasis on women’s chastity value for patriarchal families, meant that the criminal harm of rape to women was incredible. Trapped between the categories of the tainted sexual object (the prostitute) and the respectable patriarchal object (the wife or dependent woman), women had no credible status in society to speak of sex. And before the law, this status was further eroded, precluding women from legal subject status, particularly with regard to sex. The crux of the problem was women’s speaking of sex.

Although it has been argued, especially since Foucault, that the 19th century saw an explosion of

discourse around sex, the explosion was not at the voice or volition of women. In particular, the

state did not encourage the expression of women’s personal views and experiences of sex. In the

19th century women’s testimonies of sexual harm were silenced in court. In 1828 rape

legislation was altered to remove the ‘more onerous technical requirements for proving

violations’.812 Women who wanted their assailants punished no longer had to testify to the

man’s emission, and rape became defined by any degree of penetration.813 While the reforms might be thought to benefit women, Anna Clark has argued that they were an attempt to remove the power of description and legal definition from women: moral objections to women recounting explicit details in open court ‘seemed to have provided the main impetus behind the legislation’.814 Clark notes how when women did manage to speak about sexual harm,

‘newspapers and judges censored their words, for respectable women were not supposed to know of or speak about any sexual matter’.815 The longstanding idea that sexual matters were only moral matters made women’s claims of harm incredible.816 The paradox was that legal

reforms seemingly made it easier to convict rapists in the early 19th century, while women’s ability to protest about rape was suppressed. Reformers viewed rapes as a crime against public

812 Anna Clark, Women’s Silence, Men’s Violence, 60. 813 Ibid. 814 Ibid, 63. 815 Ibid, 8. 816 Ibid, 74.

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morality and decency.817 The sexual woman was not the subject of the law; she was the object

of regulation. And any woman who did fight to be addressed as a subject, and protest about her

abuse was exceptional in her bravery, anger and her ability to articulate experiences.818 Selina

Clarence was exceptional.

Selina’s story: the woman behind the marital rape exemption

In this section I outline the circumstances that led to the creation of the marital rape exemption.

Although it is commonly held that exemption is a set, unfortunate though unremarkable relic of

the past, the circumstances which led to its creation were remarkable. And as with the

mythologies of both modern permissiveness, and Victorian repression, I argue that the obscured

and forgotten facts of this case provide telling insights into the social and political climates of

each era by illustrating our willingness to forget or overlook the historical details of the law and

the state.

Selina Clarence took a bold step in prosecuting her husband for his transmission of gonorrhoea

to her. As Justice Wills explained, venereal disease had been known in England ‘for close upon

four centuries’ and yet it was not until 1866 that ‘such transgressors might have been indicted

and criminality dealt with during all that long period’.819 The two other convictions for disease transmission in this period, Bennett and Sinclair, were considered by the Bench in Clarence to have been in response to the youth of the victims, and the unscrupulous and manipulative use of alcohol to procure sex from girls, aged 13 and 12 respectively. I explain these two cases in the following chapter. Marital relations were viewed differently. Wills speculated that if venereal disease were to be understood in terms of assault, ‘thousands of offending husbands and as I think also of offending wives; must have rendered themselves amenable to the criminal law’.820

817 Ibid. 818 , 15. 819 R v Clarence 22 QBD 23 at 30 per Wills J. 820 Ibid. In 1913 Christabel Pankhurst estimated that three out of five married women were infected with gonorrhoea contracted from their husbands. Gonorrhoea was particularly damaging to women, much

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Selina’s story has not been told publicly. I present her story here based solely on primary research.821 The omission of Selina Clarence and the marital rape exemption from histories of

the period is a profound oversight. In the ‘explosion’ of interest in Victorian sexuality of the

past 25 years, the creation of the marital rape exemption apparently has been considered

uninteresting. Extensive academic work has been undertaken examining the 1885 Labouchere

Amendment, the 1895 trials of Oscar Wilde and the 1860s Contagious Diseases Acts to

characterise the late Victorian state. However the marital rape exemption has been largely

overlooked. I would argue that this oversight is, to a certain extent, the product of the

hegemonic success of the discourse of the subordinate wife. The historical subordinate sexual

status of the wife is viewed as predictable, and uninspiring. It is so obvious and normalised as to

be considered not very interesting. This is the crux of mythologies: they present themselves as

natural. The power of mythology is that it does not deny things, ‘its function is to talk about

them; simply, it purifies them, it makes them innocent, it gives them a natural and eternal

justification, it gives them a clarity which is not that of an explanation but that of a statement of

fact’.822 However the legal subordinate status of the wife is not natural or pure at all. It was

created purposefully over the bodies of Selina and Ethel Clarence.

There is evidence that Selina Clarence might have been seeking redress for another ‘great

wrong’, besides the harm she had identified in her husband’s treatment of her. Charles Clarence

was also arrested for having infected his daughter with gonorrhoea. In The East London

Observer of 10 March 1888, ‘a shocking charge’ was reported in unusual detail. According to

more so than syphilis. For Pankhurst, a general ambivalence about the disease was due simply to its gendered effects. Pankhurst wrote, ‘it is impossible to reject the belief that one reason is to be found in the greater severity with which gonorrhoea attacks women as compared to men. Gonorrhoea is in fact the great curse of women, and is the cause of most of the special ailments from which they suffer. Owing to the ravages that gonorrhoea works upon women, womanhood itself has almost come to be looked upon as a disease’ (1913: 69. Original emphasis). 821 I refer briefly to Selina’s story in ‘Sex Wives and Prostitutes: Debating Clarence’ in Judith Rowbotham and Kim Stevenson (eds) Criminal Conversations: Victorian Crimes, Social Panic and Moral Outrage (New York: Ohio State University Press, 2005). 822 Roland Barthes, Mythologies, 143.

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the Observer, separate from the charges for assault of his wife, Clarence was charged with

‘attempting to carnally know his daughter’ Ethel, who was four years old at the time of the alleged offence.823 Selina Clarence’s charges against her husband for his assault on her received little attention. The Times reported Selina’s case before the Queen’s Bench as it was ‘of great importance’, but the circumstances of the charges were referred to obliquely, and the case of

Ethel did not make The Times.

Charles and Selina Clarence had resided together in Mile End, Old Town in East London with their two children Ethel and Charles, until Clarence deserted the family in November 1885, not long after the youngest child was born, a son called James. Selina worked as a teacher and had written to Charles in August 1887 to ask for maintenance for the two children. Charles responded that he was being paid £200 a year as a commission agent at a brewery and asked if he could return to the family home. Selina agreed and Charles came to stay with the family ‘two or three times’ but otherwise lived in Birmingham. In December 1887 he came to stay with

Selina, explaining that he was unemployed and out of money. On his return Selina was not permitted to continue to work as a teacher. Charles stayed with the family until 22 December

1887, when Selina realized he had ‘communicated a frightful disease to her’.

On Ethel’s recovery from a bout of scarlet fever, Selina detected signs of a venereal disease on her daughter’s body and sought a medical examination from Dr Henry J Barton. The doctor found that both Selina and Ethel had contracted gonorrhoea. The East London Observer reported that Ethel was ‘very intelligent and was a child that would not tell lies’. When she was examined she ‘described what her father did to her’. The newspaper report was detailed for the times, but obscured the details of the child’s alleged assault. Clarence was arrested in

Birmingham for attempted carnal knowledge of Ethel, where he ‘offered no comment on the

823 ‘A Shocking Charge’, East London Observer, 10 March 1888, 7. The following details are taken from the newspaper report.

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charges’. Selina was ‘bound over to prosecute him at the next sessions of the Central Criminal

Court’.824

It seems Ethel’s case did not proceed. There are many reasons a case like this might not have

been proceeded with and I can only speculate about the specific circumstances of Ethel’s case.

But the available details help to piece together an impression of the way in which justice was

sought within this family. Clarence was arrested in March 1888 for assaulting his daughter, on

the basis of his wife’s evidence. In April 1888 Clarence was charged and convicted of assault of

his wife. Possibly frustration with not being able to prosecute Charles for the assault of Ethel

prompted Selina to take the extraordinary course of action of prosecuting her husband for

infecting her with gonorrhoea? What is clear are the difficulties women faced attempting to seek

justice for the sexual abuse of their children.

As Louise Jackson notes, although child sexual abuse in some ways is a modern concept, it still

‘makes sense’ to speak of the sexual abuse of children in a 19th century context. The number of

sexual offence trials, including a large proportion of child sex abuse trials, rose ‘drastically’ in

the period from 1830 and 1914.825 This was despite a fall in the number of crimes tried on

indictment in England and Wales during the same period. Even so, only fewer than a third of

reported cases of child sexual abuse resulted in convictions.826 Most difficulties in securing

convictions concerned evidence. According to Jackson, English medical writers demonstrated

‘an astonishing refusal to attribute discharges in children to sexual abuse’ despite mother’s

identification of sexually transmitted diseases.827 Doctors as well were often dismissive of

abuse. Oscar Wilde’s father, Dr William Wilde, had maintained that ‘innocent persons’ were

824 Charles Clarence appears to have been a bit of a cad in general. Marriage certificates would indicate that he married again in 1889, not one year after his trial. Presumably this made him a bigamist. By the 1901 Census Selina had declared herself a widow. But she was not. In 1901 Charles had had 5 more children to his new wife. Ethel survived the gonorrhoea and grew up to work as a teacher, like her mother. 825 Louise A Jackson, Child Sexual Abuse in Victorian England (London: Routledge, 2000), 3. 826 Ibid.

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exposed to ‘great danger’ from false charges arising from the misinterpretation of infantile leucorrhoea as a sign of abuse.828 Medical and forensic experts also suggested that injuries could

be faked on the child’s body by mothers seeking revenge, as a form of blackmail, or to gain a

divorce.829

However in the case of Ethel Clarence, possibly the greatest obstacle involved the inability for a

wife to testify against her husband in such cases. According to Louise Jackson, the National

Society for the Prevention of Cruelty to Children had noted in 1885, ‘atrocities committed on a

child in the presence of the mother only are seldom punishable. A mother’s evidence against a

father on behalf of their child, magistrates and judges are forbidden to admit’.830 This situation was rectified in 1889, a year after Ethel’s alleged assault, with the proclamation of the

Prevention of Cruelty to Children Act, which made the evidence of wives in such cases legally admissible.831 It is unlikely that there were other witnesses to the alleged assault on Ethel

Clarence.

The legacy of Clarence: myth making and the power of the state

One month after the alleged sexual assault of Ethel, Selina Clarence had her husband charged with assault of herself. In Chapter Seven I explain Selina’s trial in detail, and note its legal consequences more generally. Here, in this chapter, I note the broader philosophical and political context of the case to help shed light on what has often been portrayed as a dogmatic, rigid and simplistically repressive state. In fact, in the case of Clarence, the representatives of the state were highly creative.

827 Ibid, 75. 828 Ibid. 829 Ibid. 830 Ibid, 46-47. 831 Ibid.

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Clarence was an important judgment. It was unusual for a full sitting of the Queen’s Bench to be called to preside over a criminal case. As Lord Coleridge explained, the case was understood

as ‘of the greatest importance, involving questions of serious difficulty’.832 Many of the judge’s

discussions deviated first from the nature of criminal assault, and second from the ‘marital

contract’, to speculate on what it could mean for sex in general, were the convictions sustained.

The implications for the legal interest in sexual relations were understood as profound. The

convictions were understood as a turning point that if pursued and upheld would ‘open the door’

to any number of ensuing prosecutions for rape by women who had been ‘seduced’. This was an

era of women’s increased engagement with the law and in which women’s demands were seen

as having been met with the repeal and implementation of various legislation under the

Gladstone government.

For the majority of the Bench it was imperative that a precedent not be set proving the

punishment of sex claimed by women to be harmful, outside the narrow parameters of ‘violent’

rape. It was considered impractical that sex should be disputed in the criminal law, except in the

most physically violent of instances. As the respectability imperative dictated, non-violent rape

was viewed more as a problem of immorality than criminal harm. For Justice Wills the original

trial convictions in Clarence provided ‘a fresh illustration afforded of the futility of trying to

teach morals by the application of the criminal law to cases occupying the doubtful ground

between immorality and crime, and of the dangers which beset such attempts’.833

Sir Matthew Hale: the supposed authority for the marital rape exemption

In court, it was argued that Selina had consented to the sex that had infected her. Therefore

there had been no rape, and thus no assault, for ‘if an assault a rape also’.834 However Selina had

not alleged rape, but rather assault and grievous bodily harm. Nonetheless, the case was

832 The Times, 11 June 1888, 4. 833 R v Clarence [1888] 22 QBD 23 at 34-35 per Wills J. 834 R v Clarence (1888) 16 Cox CC 511 at 512 per Fulton.

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discussed in terms of her consent to sex, as though the trial concerned rape. In support of the argument that Selina had consented to sex with Charles, the 17th century pleas of Sir Matthew

Hale were introduced to the court by defence counsel, who argued that there was ‘high authority’ for deciding that the ‘prisoner’s act here was lawful’.835 According to Lord Hale’s

pleas, ‘the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by

their mutual matrimonial consent and contract the wife hath given herself up in this kind unto

her husband which she cannot retract’.836 This made the question of disputed actual consent

irrelevant in the context of marriage. Defence counsel argued that this was ‘law in Lord Hale’s

time and is still the law’,837 despite the fact that Hale’s pronouncement would appear not to have

been tested or affirmed in the 150 years since its publication.

It is unclear on what authority Hale based his decree. There was no similar statement in the

works of any earlier English commentator,838 and Hale provided no authority for his pronouncement, which was unusual in his work. As Colin Manchester et al. note, it was not that the custom of offering authority for points of law was undeveloped in the 17th century. The two pages containing the passage on marital rape in Hale’s work include seven references to cases and statutes as authority for statements of the law on other points related to rape.839

Hale’s work was left unfinished when he died in 1676.840 He had not authorized for publication

the History of the Pleas of the Crown, and a special resolution of the House of Commons was required for it to be published in 1736.841 For Bruce McFarlane, it is unclear whether Hale intended the widespread publication of his treatise, wholly unrevised as it was.842 The theory that on marriage a wife gave her body to her husband was accepted in matrimonial cases

835 Ibid. 836 Sir Matthew Hale, ‘Concerning Felonies by Act of Parliament and first Concerning Rape’, 629. 837 R v Clarence (1888) 16 Cox CC 511 at 512 per Fulton. 838 Ibid. 839 Colin Manchester et al., Exploring the Law, 310. 840 See Bruce McFarlane, ‘Historical Development of the Offence of Rape’. 841 Ibid.

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decided in the Ecclesiastical Courts, but with conditions. In the 1794 civil case of Popkin v

Popkin, for example, Lord Stowell directed that, ‘the husband has a right to the person of his wife, but not if her health is endangered’.843 For 150 years after Hale’s direction, there appears

to have been no reported case that invoked the ruling in the criminal law. It remained

unconfirmed in the criminal courts until Clarence. And thus, in the aftermath of a case

concerning grievous bodily harm and assault, women were damned to unvindicated rape for

over 100 years.

A wife’s rights: Jackson v Clarence

It is said, by legal scholars such as Damian Warburton, that the judgment confirming women’s

subordinate status in marriage and their sexual liberties as contingent on men reflected the

political and legal climate in which women resided in late Victorian England.844 Here I want to illustrate how the Victorian state has misleadingly been depicted as rigid, monolithic and homogeneous in its stance on sex. Foucault argues that we tend to think of the present, this moment, as the moment of greatest perfection.845 In particular the modern state, particularly of the 1960s, is frequently depicted as especially dynamic and evolving. However, despite the

observations of Kim Stevenson about the general ‘victimhood’ of Victorian women within the

law,846 there were some notable, dynamic exceptions among the Victorian Bench. As I explain in Chapter Seven, Clarence was far from a unanimous judgment. It was delivered in a period of a contested political and legal discourse over the status of women. The conclusion of the judges who affirmed Hale’s 17th century opinion in Clarence need not have been assured or predictable. In exactly this period, the Victorian Bench vigorously engaged with and disputed early legal authority in fields similar to those discussed in Clarence.

842 Ibid. 843 Cited in R v R [1992] 1 AC 599 at 604 per Lord Lane. 844 Damian Warburton, ‘A Critical Review of English Law in Respect of Criminalising Blameworthy Behaviour by HIV+ Individuals’ 2004, Journal of Criminal Law, 68, February, 63. 845 Ibid.

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Perhaps the most striking example was the 1891 case of Jackson, in which early legal opinions on marriage by authors such as Bacon and Hale were introduced by defence counsel, and dismissed by the Bench. Jackson concerned the defendant’s ‘imprisonment’ of his wife, and her petition for a writ of habeas corpus.847 Emma Jackson had complained of the deprivation of her

liberties involved in her husband’s detaining her in their house in order to enforce restitution of

his conjugal rights.848 Edmund Jackson’s behaviour was defended by counsel on the basis that

‘a husband has a right to take the person of his wife by force and keep her in confinement, in order to prevent her from absenting herself from him so as to deprive him of her society’.849 The

defence arguments were supported with reference to ‘early authorities’ of the opinion that a

husband ‘is entitled to the custody and control of his wife, and to detain her by force if she

refuses to live with him’, and included reference to Hale’s irrevocable consent doctrine.850

However in this instance the Bench did not accept the ‘early’ version of marriage, and harshly

criticised the invocation of anachronistic legal arguments. In Lord Halsbury’s opinion, the

defence was advocating slavery. He argued,

more than a century ago it was boldly contended that slavery existed in England, but if anyone were to set up such a contention now, it would be regarded as ridiculous. In the same way the quaint and absurd dicta as are to be found in the books as to the right of a husband over his wife in respect of personal chastisement are not, I think, capable of being cited as authorities in a court of justice in this or any civilised country.

It is important to bear this in mind, for many of the statements which have been relied upon of a more moderate character and less outrageous to common feelings of humanity, are bound up with these ancient dicta to which I refer….It appears to me that the authorities cited for the husband were all tainted with his sort of notion of the absolute dominion of the husband and wife.851

846 Kim Stevenson, ‘The Respectability Imperative’, 238. 847 R v Jackson (1891) 1 QB 673. 848 Ibid. 849 , per Lord Esher. 850 Ibid, 675.

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Absurd and ancient dicta: rejecting Hale in the 19th century

Hale’s 17th century ideas on irrevocable consent generally might have seemed ‘more moderate’ and ‘less outrageous’ in 1891, than say, the doctrine of lawful marital chastisement, or the right of a husband to detain his wife argued for in Jackson. However for Lord Halsbury, even such

‘moderate’ views were tainted with the uncivilised notion of the ‘absolute dominion of the husband and wife’ that he disputed as absurd.852 For Lord Halsbury, rejecting one part of the early authorities’ ideas on marital rights cast doubts on the appropriateness of accepting any other part of their doctrine. He asked: ‘where ancient dicta, which state that a husband is entitled to imprison his wife, also state that he has a right to beat her, can they be rejected as authorities for the latter proposition, without being affected as authorities for the former?’.853

Lord Halsbury’s insightful questions of 1891 are warranted today. It is questionable whether the

Clarence judgment, responsible for the denial of the harm of sex within marriage, is appropriate to be referred to as a legal authority in terms of sex and consent at all, particularly as Lord

Mustill used it to deny the capacity of sex as assault.854 Can we extract sense and relevance

from Clarence even after its logic in the form of the marital rape exemption was rejected as

‘offensive fiction’?855 In Lord Halsbury’s logic, it is at best dubious to do so.

Hale’s dictum on irrevocable consent was not explicitly disputed in Jackson. However, implicit in the debates of the court was the object of detainment, the marital right to sex. This suggests

that sex as the object of the detainment was understood not to be a compelling factor in

understanding the husband’s rights of marriage. Detainment was ruled unlawful, despite or

regardless of its purpose. This view could be understood to diminish or at least to complicate

the practical realisation of Hale’s doctrine, for it holds that a husband may not detain his wife in

order to have fulfilled for him the ‘marital obligation’, an obligation upheld as irrevocable by

851 Ibid at 678-679 per Lord Halsbury. 852 Ibid at 679 per Lord Halsbury. 853 Ibid at 675 per Lord Halsbury. 854 R v Brown [1993] 2 AII ER 75 at 102 per Lord Mustill. 855 R v R [1991] 1 AII ER 747 at 749 per Owen J.

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the courts only three years earlier. If the two rulings of Clarence and Jackson can be reconciled, the issue is complicated. The combination of rulings suggests that a woman is obliged to have sex with her husband as part of her marital duty, but that her husband may not lawfully compel her to fulfil her duty by means of detainment or chastisement. It is difficult to see how a husband might legally have realised his ‘right’ to marital sex should his wife have refused him.

In fact, Hale’s own views on lawful chastisement seem also to suggest a contradiction. Lord

Halsbury explained that Hale in his ‘free translation’ of early doctrine had suggested that

‘castigatio may be taken to mean admonition merely’.856 It seems Hale did not advocate or

uphold the beating of wayward wives, though imprisonment in the form of ‘confinement to the

house in the case of the wife’s extravagance’ was acceptable to him.857 Again, it is unclear how in this view a husband might have exercised his right to marital sex should the woman have resisted.

Despite apparent misogyny and justifications of marital cruelty in Clarence, no judge advocated

the use of the law to compel a woman to fulfil her ‘duty’. In those judgments supporting Hale’s

opinion it was argued that a wife could not revoke her consent, but generally the issue of how

the ‘obligation’ might be legally enforced was avoided. The tension apparent between the

‘right’ of marital sex and the ‘right’ of a wife’s physical liberty that must be contested in this

combined common law view of marriage illuminates the complex and evolving discourse of

equality emerging in England in the 19th century. It illustrates moreover how the purposeful

prejudices and personalities on the Bench influenced the interpretation and creation of the

common law, and to what lengths the Bench in Clarence went to deny sexual rights to women.

The assessment of Hale’s opinion on irrevocable consent could in principle have fallen either

way in this climate. Perhaps Lord Halsbury’s verdict would have been different from the

majority in Clarence, had he presided over the case. In Jackson, Lord Halsbury dismissed

856 R v Jackson (1891) 1 QB 675 per Lord Halsbury.

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Hale’s opinion on a husband’s right to confine his wife as absurd dicta, and argued that such a dismissal should suggest that all similar dicta from the early authors on marriage could no longer be supported. In 1891 Lord Halsbury demanded emphatically of Emma Jackson that

‘this lady must be restored to her liberty’.858

Emerging Equality: the emergence of the Victorian female subject in the work of Mill and in the courts

Lord Halsbury’s rhetoric in Jackson of progress and evolution from ‘quaint’ and ‘absurd’ dicta was in keeping with the evolving and dynamic spirit of sex equality of the late 1800s that dwelt on notions of ‘transcended barbarism’, but which was not to prevail in the state in the case of

Clarence.859 This dynamism was fuelled by a definitive radicalism, within the work of the

suffragettes and within some surprising quarters including the male ruling class. John Stuart

Mill published his radical treatise The Subjection of Women in 1869. Writing before the

creation of the marital rape exemption in 1888, and well over a century before it was overturned

in 1991, Mill argued that ‘the principle which regulates the existing social relations between the

two sexes - the legal subordination of one sex to the other – is wrong in itself, and now one of

the chief hindrances to human improvement’.860 For Mill, marriage was akin to slavery in its oppression of women’s rights. He wrote,

I am far from pretending that wives are in general no better treated than slaves; but no slave is a slave to the same lengths, and in so full a sense of the word, as a wife is. Hardly any slave, except one immediately attached to the master’s person, is a slave at all hours and all minutes; in general he has, like a soldier, his fixed task, and when it is done, or when he is off duty, he disposes, within certain limits, of his own time, and has a family life into which the master rarely intrudes. 861

857 Ibid. 858Ibid, 682. 859 John Stuart Mill warned that we do not ‘suppose that the barbarisms to which men cling longest must be less barbarisms than those which they earlier shook off’ in The Subjection of Women’ On Liberty and Other Essays, 471-472. 860 Ibid, 471. 861 Ibid, 504.

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For Mill, writing even before the declaration of marital cruelty in Clarence, a husband’s

brutality had impunity within marriage:

“Uncle Tom” under his first master had his own life in his “cabin”, almost as much as any man whose work takes him away from home, is able to have in his own family. But it cannot be so with the wife. Above all, a female slave has (in Christian countries) an admitted right, and is considered under a moral obligation, to refuse to her master the last familiarity. Not so the wife: however brutal a tyrant she may unfortunately be chained to — though she may know that he hates her, though it may be his daily pleasure to torture her, and though she may feel it impossible not to loathe him — he can claim from her and enforce the lowest degradation of a human being, that of being made the instrument of an animal function contrary to her inclinations.862

Mill’s thesis was bitterly contested by Fitzjames Stephen.863 In 1873 Stephen addressed The

Subjection of Women with the explanation that it was a ‘work from which I dissent from the first sentence to the last’.864 Stephen’s work illustrates his personal understanding of the role

and purpose of the English criminal law, as well as his ideological and political engagement

against the discourses of modern democracy, especially for women: his ideology that informed

Clarence and was upheld by Lord Mustill in his libertine’s defence of 1993.865

I explain the work of Stephen in detail because, as I have noted, Stephen is routinely elsewhere overlooked in modern histories, despite his continued influence on our lives. Stephen was not anti-sex, but he saw Mill’s doctrine of sex equality as resting on ‘an unsound view of history, an unsound view of morals, and a grotesquely distorted view of facts, and I believe that its

862 Ibid. 863 Stephen was a Benthamite. Indeed, he was described (perhaps optimistically) on his death as the ‘last of the Benthamites’ (The Times, 13 March 1894, 1). Stephen’s championing of utility placed him in opposition to Mill who advocated freedom above all else: utility and freedom must be understood as oppositional in the final analysis. And yet, as I discuss in Chapter Two, in the recent histories of Wolfenden such as that of Jeffrey Weeks, the ideologies of Bentham and Mill have been confused and concatenated as though they might be complementary, if not interchangeable. 864 Sir James Fitzjames Stephen, Liberty, Equality, Fraternity, 188. In turn, suffragette Millicent Garrett Fawcett described Stephen’s Liberty, Equality, Fraternity as ‘the latest revelation of the Gospel according to St. Stephen. Upon nearly all the most important subjects of contemporary politics, upon the gravest questions of religion and metaphysics, we are fully instructed what we ought to do, and how we ought to think’ (1873: 5). Fawcett was a suffragette, married to radical MP Henry Fawcett. 865 Susan Edwards notes that the dissenting arguments of Lord Slynn and Lord Mustill in Brown were ‘hailed by gay rights and civil liberties lobbies and sexual liberals as the lighthouse of liberalism in a sea of puritanism and homophobia’ (1996: 84).

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practical application would be as injurious as its theory false’.866 For Stephen the argument for

equality was misguided and dangerous in general. He believed that unequal treatment of the

sexes in particular is natural, that it serves the important purpose of maintaining social stability,

and moreover that the ‘actually existing generation of women do not dislike their position’.867

In fact Stephen seems to have considered the subject a distasteful choice for public discussion in general, criticising Mill on the grounds that, ‘there is something – I hardly know what to call it; indecent is too strong a word, but I may say unpleasant in the direction of indecorum – in prolonged and minute discussions about the relations between men and women, and the characteristics of women as such’.868

Stephen’s antipathy to Mill was reciprocated. John Stuart Mill was critical of Stephen’s outlook

and character in general. In 1869 Mill wrote to Thomas Cliffe Leslie that

I agree with you in exceedingly disliking the insolent and domineering affectations of Fitzjames Stephen. In political economy he is exceedingly ignorant, but not less presumptuous. On other matters, however he is able to do some useful work, and he is undoubtedly a clever man. My daughter begins to have some doubts whether he is thoroughly an honest man, either in word or deed. It is certain that he says and does oddly inconsistent things. He is always brutal, even at his best; that however apparently in him a radical defect of temperament, which if he is otherwise an honest worker for good, might have to be overlooked.869

And Mill went on to satirise the vanity of Stephen:

It is certain that he is very vain, and that may be the cause of his many defects in which vanity is not apparent, as of the boyish boast that he always goes to sleep at the P.E. Club. Has he then so much time to spare; or does he mean that he comes because he cannot get sleep elsewhere? But he is full of this sort of fanfaronade, which is offensive enough, but which we may excuse if he is in earnest about anything. One cannot help but hoping he is because he is clever enough to do a good deal of good or mischief.870

866 Sir James Fitzjames Stephen, Liberty, Equality, Fraternity, 191. 867 Ibid, 189. 868 Ibid. Stephen’s view is reminiscent of the reluctance that Kim Stevenson identifies among the architects of the Offences Against the Person Act 1861 to discuss matters of a ‘disagreeable nature’, despite the Act’s purported interest in sexual violations (1999). 869 John Stuart Mill, ‘Letter to T E Cliffe Leslie 8 May 1869’, The Later Letters of John Stuart Mill 1849- 1873, Collected works, Edited by Frances E Minkea & Dwight N Lindley (Toronto: University of Toronto Press, 1963), 1600. 870 Ibid. Mill and Stephen had in fact collaborated and admired each other’s work. At some stage, they appear to have had a falling out (O’Grady: 1987: 2-9).

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The ‘brutal’ views of Fitzjames Stephen on equality and the criminal law and the sanctity of marriage help to shed light on his judgment in Clarence. With this insight, his motivation and intention in Clarence can be seen more clearly. Stephen was opposed to the doctrine of

equality, and sex equality in particular. The unequal sexual liberty of men was crucial to the nation, for Stephen. Stephen believed that women were inferior to men in strength of body and

mind, and that marriage was built solidly on this fact. Importantly, he did not consider equality

to be particularly relevant to justice, and he did not consider it the role of the criminal law to

regulate ‘personal’ relations. He wrote in response to John Stuart Mill,

I think that equality has no special connection with justice, except in the narrow sense of judicial impartiality; that it cannot be affirmed to be expedient in the most important relations of social life; and that history does not warrant the assertion that for a great length of time there has been a continual progress in the direction of the distinctions between man and man, though it does warrant assertion that the form in which men’s natural inequalities display themselves and produce their results changes from one generation to another, and tends to operate rather through contracts, made by individuals than through laws made by public authority for the purpose of fixing the relations between human beings.871

For Stephen, equality bore no special connection to justice, but in the selective reading that is

modern law, Lord Mustill relied on Clarence, the great judgment of inequality, in his arguments

for equal sexual rights in 1993.

In the decades after the treatises of Mill and Stephen, women’s rights were addressed by

parliament as well as the courts. In particular, the 1880s saw the views on equality of Stephen

routinely challenged. In 1880 William Gladstone was re-elected on a platform of equality. In

1882 the Married Women’s Property Act was passed, under which married women possessed

the same rights over their property as unmarried women, thereby allowing a married woman to

retain ownership of property. In 1884 the Matrimonial Clauses Act allowed a wife deserted by

an adulterer to petition for divorce immediately, rather than waiting two years.872 In 1885 the

871 Sir James Fitzjames Stephen, Liberty, Equality, Fraternity, 210. 872 This Act might have had repercussions beyond those individual women who used the legislation to escape unwanted marriages. Judith Knelman identifies the reporting of divorce in the press in the 1880s

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Criminal Law (Amendment) Act raised the age of female heterosexual consent from twelve to

16, a move viewed variously as benevolently paternalistic, repressive and misguided,873 or as primarily in men’s cynical interest.874 The Act also contained a clause that recognised as rape the obtainment of sex by impersonating a husband. In 1886 as a result of large scale lobbying, the Contagious Diseases Acts of 1864 were repealed, ending the degrading and intrusive ritualised detainment and inspection of so-called ‘common prostitutes’.875 However, despite change in women’s status before the Victorian law, women’s testimonies of sexual harm were weakened and denied in court,876 and men’s sexual liberty and freedom to access women

sexually was not threatened by these 1880s legislative moves as it was in Clarence.

Victorian judicial prejudice: morality, harm and unnatural vice

Justice Wills placed the judgment of Clarence in contemporary political context, and he implied

a fear of prostitutes as important to the judgment of Clarence:

It is true that women take a different place in social position, and have by Act of Parliament many rights and by common usage much social liberty which no one would have claimed for them centuries ago. This fact, however, seems to me a strangely insufficient reason for a new reading of the criminal law fraught with consequences which no one can deny to be of a very serious and widespread character. The principle upon which a conviction in this case must be upheld will or will not apply to the intercourse of unmarried, as well as of married, men and women, according to the ground or grounds selected upon which to justify it.877

Justice Wills did not dispute that Charles Clarence’s acts were ‘wicked and cruel enough’,878 but he believed that they should not fall within the ambit of the criminal law. Wills could not conceive of the harm of gonorrhoea or of duplicity in sexual relations in general in terms of criminality. He defended this stance with reference to the difficulties and impracticalities he

as testing ‘middle-class morality’ more generally in its indication that ‘not all wives were happy or even faithful’ (2003: 197). 873 Nickie Roberts, Whores in History, 257. 874 Kim Stevenson, ‘Observations on the Law Relating to Sexual Offences: The Historic Scandal of Women’s Silence’. I discuss the Criminal Law Amendment Act in Chapter 8. 875 I discuss the Contagious Diseases Acts in Chapter 8. 876 Anna Clark, Women’s Silence, Men’s Violence, 60. 877 R v Clarence [1888] 22 QBD 23 at 30 per Wills J. My emphasis. 878 Ibid, 32.

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identified in addressing private sexual relations in law, arguing it was best to leave disputes over sex and personal relations to individuals. For Justice Wills ‘the mysteries of sexual impulses and intercourse are well nigh insoluble, and difficulty of arriving at the truth in the case of imputed misconduct enormous’.879 According to Justice Wills, immorality is not the concern of

the criminal law. However his antipathy toward regulating sex seems to have been selective.880

The reservations of Wills for prosecuting for disease transmission were not due simply to the prevalent nature of gonorrhoea. Wills was concerned with the mysteries of sex, which are impossible to understand. And he viewed the sexual harm of women typically in terms of morality.

Stephen’s interest in shielding immorality from the criminal law was also selective. Stephen dedicated a chapter of his 1873 response to John Stuart Mill to the discussion of morality and liberty in which he addressed the notion of vice.881 For Stephen, the criminal law was ‘an

extremely rough engine’ that ‘must be worked with great caution’.882 He identified practical difficulties in invoking the criminal law against what he classified as ‘vice’. However this in no way diminished the importance he placed on combating such ‘vice’ or ‘immoral’ behaviour.

Rather than the criminal law, Stephen advocated the use of public opinion in his charter for tackling ‘vice’. Stephen took issue particularly with what he identified as Mill’s narrow

879 Ibid. 880 The emphasis of Wills was profoundly different when sentencing Oscar Wilde and Alfred Taylor in 1895. Wilde and Taylor were convicted of gross indecency, charged under the Labouchere Amendment after Wilde’s attempts to prosecute the Marquis of Queensberry for criminal libel. Wills declared that the indecency trial was ‘the worst case’ he had ever tried. He passed the ‘severest sentence that the law allows’ and complained that the sentence of two years imprisonment with hard labour was ‘totally inadequate for a case such as this’ (University of Missouri). Justice Wills drew grand distinctions between non-criminal immorality and harm in the case of Selina Clarence, yet could not contain his rage at the criminal immorality he identified in Wilde’s sexuality. The contradiction suggests that his distinction between morality and harm in law was not simple but rather, involved a refusal to comprehend heterosexual sex as harmful, beyond the narrow parameters of physically violent rape. 881 In discussions of criminality and the law, ‘vice’ traditionally as been synonymous with prostitution, adultery and other forms of ‘immoral’ sex. In the 20th century vice came to be associated with so-called ‘victimless crimes’, variously of prostitution, illicit drug taking, male homosexuality and gambling. It typically has been meant to refer to private choices to participate in supposedly anti-social behaviour, of a nature and social impact different from criminal harm. See Beverly Balos, ‘Teaching Prostitution Seriously’, 735-736.The longstanding distinction between unnatural and natural vice was collapsed in Wolfenden where homosexual men are treated like common prostitutes.

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interpretation of harm, that ‘private vices which are injurious to others may justly be punished, if the injury be specific and the persons injured distinctly assignable’.883 He believed himself to

possess a more broad understanding of the harm caused by the very existence of vice, and

explained,

I do not know how it is possible to express in amore emphatic way the doctrine that public opinion ought to put a restraint upon vice, not to such an extent merely as is necessary for definite self-protection, but generally on the ground that vice is a bad thing from which men ought by appropriate means to restrain themselves.884

For Stephen, vices such as adultery, seduction and ‘unchastity’ although detrimental to public good, were not the appropriate target of the criminal law. Rather it was for public opinion to combat such harmful immorality, but only in women.885

However he did draw the line at sodomy. For Stephen this vice was so wicked and detrimental

to society as to warrant the full assault of the punitive criminal law. Stephen understood an

important connection between natural and unnatural vice. As he outlined in ‘Anti-

Respectability’, if men’s natural hydraulic sex drive was not allowed to flourish through its

outlet of natural vice (women), then disastrous evils ‘would be felt in every household in the

kingdom’.886 Despite a detailed argument about the impracticalities of the fruitless punishment by law of vice, sodomy was argued by Stephen to be a suitable candidate for criminal punishment, due to the magnitude of its wickedness and harm, and also due to what was identified as the effective use of the law against it so far. He explained,

all the acts referred to are unquestionably wicked. Those who do them are ashamed of them. They are all capable of being clearly defined and specifically proved or disproved, and there can be no question at all that legal punishment reduces them to small dimensions, and forces the criminals to carry on their practices with secrecy and precaution. In other words, the object of their suppression is good and the means adequate.887

882 Sir James Fitzjames Stephen, Liberty, Equality, Fraternity, 140. 883 Ibid, 143. 884 Ibid. 885 Sir James Fitzjames Stephen, ‘Anti-Respectability’ 291. 886 Ibid, 290.

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Sodomy was the one exception to Stephen’s personal mandate for the criminal law in regard to vice. He warned of the need to be careful of inflicting penalties upon mere natural vice, and justified his view with reference to the difficulties he foresaw in identifying the specific individual and personal harm of vice. Although he criticized Mill’s privileging of individualistic understandings of harm, Stephen did agree that the law generally should not punish natural vice.

He argued that his was a practical approach to the limitations and appropriate scope of the criminal law in its assessment. Despite his deep faith in the English criminal justice system,

Stephen acknowledged that the law was ‘rough’ and should be implemented with caution:

It would obviously impossible to indict a man for ingratitude or perfidy. Such charges are too vague for specific discussion and distinct proof on the one side, and disproof on the other. Moreover, the expense of the investigations necessary for the legal punishment of such conduct would be enormous. It would be necessary to into an infinite number of delicate and subtle inquiries which would tear off all privacy from the lives of a large number of persons. These considerations are, I think, conclusive reasons against treating vice in general as a crime.888

Sacred privacy: the agenda of the Victorian state

Although the focus of Stephen’s argument was the practical limitations of the law and the

difficulties in isolating ‘real’ harm, his reference to privacy belies his greater motivation in

shielding ‘mere’ vice from the criminal law. Stephen’s practical objections to the criminal law’s

intrusion into the world of vice appear to be based also on an ideological commitment to the

sanctity of (hetero)sexual privacy. This commitment to privacy and to the exclusion of the law

from matters of sexuality provided for an analysis of instances of contested sex as matters of

vice or immorality, rather than criminal harm.

From the standpoint of delineating ideologically where the law should intervene, Stephen was

able to define the ‘impracticalities’ and risks of addressing sex in the law as too great. His

objection to punishing what he identified as ‘mere vice’ was ideological as much as it was

practical. He privileged heterosexuality and did not extend the stringent defence of privacy and

887 Sir James Fitzjames Stephen, Liberty, Equality, Fraternity, 154. 888 Ibid, 151.

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‘impracticalities’ to ‘unnatural’ acts, or sodomy, the wickedness of which he argued precluded any claim to private interests. The threat to sexual privacy was too great to address contested sex such as adultery and ‘seduction’ in the criminal law. However he argued, there were ‘acts of wickedness so gross and outrageous that, self protection apart, they must be prevented as far as possible at any cost to the offender, and punished, if they occur, with exemplary severity’.889

Stephen and marriage: a primary agenda in Clarence

Stephen’s views on equality, vice, the criminal law and the sanctity of marriage help to shed light on his judgment in Clarence. While he might appear to have sympathised with the plight of Selina Clarence over the ‘abominable nature of the prisoner’s conduct’, he ruled that such

‘immoral’ conduct was not the appropriate target of the criminal law.890 With these insights, his

motivation and intention in Clarence might be seen more clearly. Far from being anti-sex, or

repressive, Stephen upheld the sexual privacy rights of men, as illustrated in Clarence. Stephen

believed in the sacred privacy of heterosexuality. In particular, he believed deeply in the

sanctity of marriage and identified privacy, inequality and male authority and liberty as

fundamental characteristics of marriage and the family. Stephen was effusive about marriage,

explaining in Liberty, Equality, Fraternity his sympathies for the importance of marital

relations. Marriage was about men’s happiness:

A happy marriage which might have been prevented by any one of numberless accidents, will lead a man to take a cheerful view of life. Some secret stab in the affections, of which two or three people are only aware, may convert a man who would otherwise have been satisfied and amiable into a stoic, a sour fanatic, or a rebel against society, as the case may be. If Dante had been personally happy, or Shakespeare personally wretched, if Byron had married Miss Chaworth, if Voltaire had met with no personal ill-usage their literary usage would have been very different.891

889 Ibid, 162. 890 R v Clarence [1888] 22 QBD 23 at 46 per Stephen J. 891 Sir James Fitzjames Stephen, Liberty, Equality, Fraternity, 146.

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Stephen’s strong opinions on marriage were in conflict with Mill’s analysis of the ‘evil’ of the

‘legal subordination’ of women in marriage.892 Although Stephen advocated privacy and

freedom from state interference, he also identified an important role for the law in upholding

the institution of marriage. For Stephen marriage was ‘one of the subjects with which it is

absolutely necessary for both law and morals to deal with in some way or another’.893 He was

opposed to legalising or enabling divorce and justified his objection with a paternalistic appeal

to women’s protection, in an ironic use of Mill’s own language that divorce would ‘make

women the slaves of their husbands’.894 Stephen’s theory was based on his personal observation

that ‘a woman loses the qualities which make her attractive to men much earlier than men lose

those which make them attractive to women’.895 Therefore, ‘in nine cases out of ten, he might

put an end to the marriage when he pleased’.896 For Stephen despite this fickle nature of men, marriage was ‘the closest and most endurable of all bonds’ and was built on the premise of male authority and female servitude and obedience.897 He explained that for a woman to ‘give way’ to her husband was a matter of virtue and of necessity for the common good. He wrote in response to Mill’s impassioned treatise for sex equality in an excited nautical metaphor,

she ought to obey her husband, and carry out the view at which he deliberately arrives, just as, when the captain gives the word to cut away the mast, the lieutenant carries out his orders at once, though he may be a better seaman and may disapprove them. I also say that to regard this as a humiliation, as a wrong, as an evil in itself, is a mark not of spirit and courage, but of a base, unworthy, mutinous disposition – a disposition utterly subversive of all that is most worth having in life.898

As Kim Stevenson notes, Stephen’s ideas on the role of women in marriage were indicative of

his views on the ‘legal status of women generally’ that ‘submission and protection are

892 John Stuart Mill, ‘The Subjection of Women’, 548. 893 Sir James Fitzjames Stephen, Liberty, Equality, Fraternity, 195. 894 Ibid. 895 Ibid. 896 Ibid. 897 Ibid. 898 Ibid, 197. Stephen was sentimental about his own marriage, having written to his wife Minnie Thackeray, ‘such marriages as yours and mine bring down heaven upon earth and are, or might be made the fountains of all virtue and happiness, private and public’ (Hostettler: 1995: 124). Although as Hostettler notes, Stephen could not help adding ‘you know very well that obedience is the very essence of married life, and that it is not a servile, but an honourable and blessed thing’ (1995: 124).

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correlative’.899 And yet Selina Clarence was afforded no protection by Stephen, but rather at his direction, all women were damned to danger: the marriage bond is inherently dangerous for the wife.900

Conclusions: what does Clarence say about the nature of sex, for both the repressive Victorians and the permissive moderns?

For Stephen, the risks of intruding into the realm of the ‘greatest of all contracts’, as he considered marriage, were too great to warrant use of the criminal law for redress of harm within marriage or heterosexuality that did not involve explicit physical violence. The privacy and ‘natural inequality’ of heterosexuality was sacrosanct to the point where sexual harm such as in Clarence was identified as vice and beyond the interests of the law. For Stephen the risks

899 Kim Stevenson, ‘The Respectability Imperative?’, 239. Stephen’s deep held value of the sanctity of marriage founded on obedience and male dominion might provide limited explanation for his treatment of Florence Maybrick during her trial for the murder of her husband in 1889, one year after Clarence. Florence Maybrick generally is thought to have been wrongly convicted. Although initially sentenced to death for murder by Stephen, the Home Office advised that her guilty verdict should be overturned, and her sentence was commuted to life imprisonment for attempting to administer poison, a crime for which she had not been charged or tried (Whittington-Egan: 1990: 1331). Florence Maybrick served 15 years in gaol. The miscarriage of justice perceived in her trial ‘played some part in the subsequent setting up of the Court of Criminal Appeal’. Stephen was criticized for his handling of the case generally, and in particular for his summation of the facts that he delivered constantly over two days (The Times, 8 August 1889, 7) that centred on the outrage he directed toward Mrs Maybrick’s adultery. Although Mr Maybrick had had adulterous affairs himself, Stephen was pre-occupied with the sexual transgressions of Florence Maybrick. He suspended his detached analysis of ‘mere’ vice in the case of married women and addressed the jury, saying, ‘I could say a good many things about the awful nature of the charge, but I do not think it is necessary to say any one thing. Your own hearts must tell you what it is. For a person to go on deliberately administering poison to a poor, helpless sick man upon whom she has already inflicted a dreadful injury, an injury fateful to married life, the person who could do such a thing as that must indeed be destitute of the least trace of human feeling… There is no doubt that the propensities which lead a person of vices of that kind do kill all the more tender, all the more manly, or all the more womanly feelings of the human mind’ (The Times, 9 August 1889, 3). His address to the jury was criticized also by his peers, with Alexander McDougall, a Barrister of Lincoln’s Inn suggesting that Stephen in fact was insane (Hostettler: 1995: 243). Another barrister wrote to The Times that, ‘it seems to me that the summing up was distinctly unfair; of course I do not mean purposefully so. But Mr Justice Stephen all through, and especially towards the end of his charge, dwelt on the heinousness of Mrs Maybrick’s admitted immorality. That is a topic which lends itself very easily to being made a great deal too much of as furnishing evidence of motive in a charge of murder; and for one I think it was made a great deal too much of in this case’ (The Times, 10 August 1889, 4). Stephen’s mental state at the time of trial has been questioned. Florence Maybrick speculated that her trial in fact drove him mad and an editorial of the Liverpool Daily Post in 1900 referred to Stephen as the ‘mad judge’. John Hostettler acknowledges that Stephen had suffered a severe stroke in 1885 that had ‘mildly affected his mind’ and he was a regular smoker of opium (1995: 267). Stephen retired two years after Mrs Maybrick’s trial and soon after was committed to a sanatorium. However the spectre of illness should not dilute or distract from the passion with which Stephen regarded marriage and male dominion, and his vehement antipathy directed toward equality.

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otherwise entailed the destruction of the family. In this view, abominable behaviour would have to be suffered, rather than risk disrupting the dominion of marriage by seeking redress. In fact, his privileging of privacy, authority and inequality within the family was so great as to lead to the contradiction of his general solution for other vices, public disapproval. He explained by way of another colourful metaphor,

to try to regulate the internal affairs of a family, the relations of love or friendship, or many other things of the same sort, by law or by the coercion of public opinion, is like trying to pull an eyelash out of a man’s eye with a pair of tongs. They may put out the eye, but they will never get hold of the eyelash.901

Perhaps though the most conclusive insight into Clarence concerns not Stephen’s views on marriage but rather, the umbrage he took with women’s engagement with the criminal law at all. He had written in the Pall Mall Gazette in 1865, in a plea for excluding women from the legal profession,

female plaintiffs have become a common phenomena in our law courts to an extent that seriously affects public interests. In the first place it will be observed that there is a peculiar tortuousness and intricacy about female cases, arising either from a hopeless confusion of facts, or from an absence of facts all together… A law court ought to be a sort of male harem; female witnesses should be compelled to wear impenetrable veils and unbecoming dresses.902

In 1993, how might Lord Mustill have come to find himself navigating this murky, embarrassing past of our criminal law, in such a modern and consequential case as Brown? In

Brown, Lord Mustill urges us to ‘pause on the threshold’ and inquire as to whether sex may be understood legally to in terms of criminal assault.903 Lord Mustill quoted Justice Wills in 1888 asserting that sex itself is ‘so completely removed from those circumstances which are usually understood when an assault is spoken of’.904 Indeed the incapacity of sex for harm is the

fundamental premise of Clarence. Chief Justice Lord Coleridge had described the case as one

900 Michel Foucault, The History of Sexuality Volume Three: The Care of the Self, 167. 901 Ibid, 162. 902 Sir James Fitzjames Stephen, ‘Ladies at Law’ (1865) Pall Mall Gazette, 7 February, 7. 903 R v Brown [1993] 2 AII ER 75 at 102 per Lord Mustill. 904 Ibid.

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‘of the greatest importance, involving questions of serious difficulty’.905 However it was not a difficult case at all, for the majority of the Bench could not grasp the harm of sex in any magnitude. Prejudice ensured the outcome.

Through strange twists of fate and a lack of critical engagement, this arcane judgment, steeped in selectively oppressive Victorian morality, came to be used as the libertine’s defence in

Brown. Clarence has become a cornerstone of modern understandings of sex and more broadly, consent in general. Yet its logic is based squarely on the premise that sex is not related to assault, and its wisdom directs that fraud in sex is of no magnitude. This is a troubling and limited premise from which to commence inquiry into the criminal harm of fraud in sex.

Importantly for my analysis, this premise exhibits the agenda of the Victorian state for sex, in its emphasis on the essential nature of men’s sex: it disturbs the myth of the anti-sex Victorians.

And, Lord Mustill’s commending of the premise of Clarence disturbs the mythologies of freedom and permissiveness accepted in his arguments in Brown, and in the modern state more generally, that he has been understood to properly represent.

905The Times 11 June 1888, 4.

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Chapter Seven: Clarence and the Mutable Nature of Consent

The mysteries of sexual impulses and intercourse are well nigh insoluble, and difficulty of arriving at the truth in the case of imputed misconduct enormous. (Justice Wills, R v Clarence, 1888)906

The Victorian patriarch, embodied in my thesis by Fitzjames Stephen, was not anti-sex. As I

have noted, Victorian sex was understood as essential to the nation. It was understood by the

state as ‘mysterious’ and powerful, unable to be regulated and beyond the proper scope of the

rational criminal law. In this chapter I explore what Clarence says about the nature of sex. To

understand the contemporary state’s view of the nature of sex, we must also understand the

view of the Victorian state, the notorious foil. In the previous chapter I outlined the broader

philosophical ideas about sex, marriage and morality that might be represented by Stephen as

indicating one influential embodiment of the Victorian state’s approach to sex. I have shown

that far from being anti-sex, or repressive, Stephen had a strong belief in the fundamental

importance of sex to society’s well being, and a profound respect for sexual privacy.

In this chapter I examine the Queen’s Bench trial of Clarence more closely, its decision and its

legal legacy, to explore one important artefact of the 1880s state. Here I want to transcend the

standard permissive rhetoric of Victorian repression to determine what Clarence says about sex

and the nature of sexual harm. First I explain the arguments of defence counsel and the

members of the Bench, in creating the marital rape exemption. I explain the process of the trial

in detail because this explanation does not seem to have been performed elsewhere in academic

or legal work.

I also briefly explain the longstanding mythologies and effects of Clarence that are still at large

in law, concerning the harm of sex obtained by fraud, that would appear to have been accepted

906R v Clarence [1888] 22 QBD 23 at 32-33 per Wills J.

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with little question by our modern state.907 The focus in Clarence on fraud (and prostitution)

reveals the greater agenda of the majority of the Bench in this case: securing men’s

uninterrupted (and uncontested) access to the sex of women. This was far from an anti-sex

agenda in 1888. I also note the fragility of the Queen’s Bench judgment and show how, despite

a lack of unanimity among the Bench, the mythology of the judgment came to prevail for a

century and still continues. In explaining the legal arguments that invoked the marital rape

exemption, I illustrate the underlying philosophy of sex: that sex is an important part of society

to which men must have unrestrained access, via the bodies of women; that sex is harmless by

nature; and that the harm of sex lies in its restraint. This philosophy is based on a broader

understanding of sex as a right of men, obtained rightfully via a transaction. I show how in judicial discussions of rape and sex law, the heterosexual male is the implicit sexual subject.

Although the allegations of Clarence concern the assault of a woman, the judgment concerns men’s right to sex.

I again emphasise the role of Fitzjames Stephen in the judgment of Clarence, because Stephen

is considered to have ‘formed’ the judgment and because, as shown in the previous chapter,

Stephen provides a thorough legacy of artefacts of the state by which he illustrates his agenda in

regard to sex. To illustrate the fundamental lack of interest of the state in regulating men’s sex, I

examine in contrast the Bench’s approach to violence, in this same period. To convict for the

assault of SM in Brown, the judges relied on the 1882 judgment of Fitzjames Stephen in Coney.

Here I also turn to Coney to show the different ways in which ‘real harm’ (of men) was understood by the state, in contrast to women’s claims of sexual harm.908 I provide an analysis

of Coney and the prevailing treatment of assault in this period in order to show the underlying

Victorian philosophy concerning consent, the individual and bodily integrity that was upheld in

Brown. The permissive mythology of modern law has been interested to present the Victorian

state as simplistic and single-faceted in its outlook on sex: hence the lack of scrutiny now paid

907 I elaborate on this in my conclusions to this thesis.

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judgments such as Clarence.909 Clarence has typically been paid only glancing attention, and as

I illustrate, standard interpretations of the case do not emphasise the normative and creative nature of the ruling. Clarence did not simply affirm the marital rape exemption, as is often suggested. Clarence was creative.

Victorian treatment of sexual harm

In elaborating on the decision in Clarence, I first briefly explain the political climate in which

sexual harm was legally understood in the Victorian period. In the previous chapter I noted the

problems for Victorian women in testifying to sexual harm. Here I note what lies at the heart of

these problems and the historical legal treatment of rape. Feminist scholarship has identified the

core patriarchal bias of rape law that was devised with women’s chastity value in mind.910 Sex was understood as important: although rape was a capital crime until 1841, it was simultaneously punished yet sanctioned, and the severity of punishment was aimed not at the violation of a woman’s sexual autonomy, but at the theft of another man’s property.911 By the

19th century, emerging middle class dominance had given ‘currency to ideologies that

emphasised the preservation of women’s chastity’.912 In men’s social roles, the ‘chivalrous protector’ had replaced the libertine of the 18th century.913 Rape was seen as damaging other

men’s property, as the woman’s ‘exchange value’ was threatened,914 and men often or

sometimes accepted monetary compensation from men who had assaulted their wives or

daughters.915

908 In the conclusion to this thesis I note the prevalence of this view in Wilson. 909And to a lesser extent (as I illustrate in Chapter 6), Jackson. 910 Anna Clark, Women’s Silence, Men’s Violence, 6. 911 Ibid. 912 Shani d’Cruz, ‘Approaching the History of Rape and Sexual Violence’ (1993) Women’s History Review, Vol 1 No, 3, 379. 913 Ibid. 914 Carolyn Conley, ‘Rape and Justice in Victorian England’ (1986) Victorian Studies, Vol 29, No, 4, 534. 915 Ibid.

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Anna Clark notes how the notion of women’s sexuality as a thing, or as property, encourages men to believe they have a right to obtain female sexuality; by ‘paying for sex, as in prostitution or traditional marriage, by defrauding them as in seduction, or taking it by force as in rape’.916

While it was the duty of the respectable woman to resist rape, and the duty of the respectable man to refrain from abusing his power, men’s sexual aggression was perceived as normal, healthy and inevitable.917 Judges often viewed sexual assaults as ‘little more than regrettable

lapses of self control’.918 Carolyn Conley writes that a man’s

“giving way to passion” was not necessarily considered criminal either. The mental step from the position that all women should be under the protection and supervision of men, to the view that those who were not under such control were fair game for tests of manhood or outbursts of youthful exuberance. Sexual assaults by respectable men were called “drunken impulses”, or “sudden outbreaks of wickedness” or “harmless fun” or seductions.919

Rape was commonly confused with seduction, or a woman having ‘surrendered’ to her

‘passions’, and victims of assault were tainted themselves by sexual contact.920 If a woman was

successful in bringing a prosecution, in court she faced judges ‘intent on scrutinising her own

discourse for signs of immodesty’.921 The view of rape involving ‘exchange value’ within patriarchal capitalism, together with the respectability imperative that pure women have no sexual knowledge or experience, meant that women’s claims of rapes were viewed with suspicion.922 It is in this context that the trials of Charles Clarence should be understood.

Although Selina Clarence had alleged crimes of assault and GBH, the vehicle for her alleged

assault was sex, and her trials were understood by the Queen’s Bench in terms of sex and rape,

916 Anna Clark, Women’s Silence, Men’s Violence, 7. 917 Carolyn Conley, ‘Rape and Justice in Victorian England’, 532. 918 Ibid. 919 Ibid, 535. 920 Ibid, 4. For working-class women, the connections between ‘work, sexuality, the label “prostitute” and the risk of male violence have persisted over time’ (d’Cruz: 1993: 385). Police and magistrates who were accustomed to treating prostitutes and vagrant women harshly, rarely became more sympathetic to victims of rape. In fact, a woman could be arrested for indecent exposure while being assaulted (Clark: 1987: 65). 921 Anna Clark, Women’s Silence, Men’s Violence, 67. 922 This scepticism can be traced at least to the 17th Century, and Sir Matthew Hale’s authoritative warning that came to feature in rape trails up until the 1990s: that the accusation of rape is ‘easily to be made and hard to be proved, and harder to be defended by the party accused, tho ever so innocent’ (Lanham: 1983: 156).

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in regard to the repercussions for men of acknowledging the harm of sex within marriage, and beyond. The disastrous effects on the nation of man’s unnaturally constrained lust were understood as of paramount concern. Thus a woman’s sex and sexuality has historically been viewed variously as something that is given by her patriarchal guardian to another man; something that is given away immorally or sold in prostitution by the woman herself, or occasionally, something that is taken by brute force. Women’s sex is not an expression of women; it is an object of women to be taken, bought or ‘seduced away’. It has consistently been understood as something that men need, and to which they have a natural right.923 The concept

of rape within marriage complicated an understanding of women’s sex as men’s property. Sex

was imperative to men and to the nation, and a wife provided this outlet. How might a man be

guilty of ‘taking’ what was rightfully his? Clarence, in its allegations of a wife of harmful sex

by her husband, posed a challenge for the Bench.

Clarence: a case of serious difficulty

Charles Clarence was convicted of assault occasioning actual bodily harm and grievous bodily

harm, for his transmission of gonorrhoea to his unwitting wife. He was convicted of both counts

of assault at the Central Criminal Court with the direction by the judge to the jury that, ‘if the

evidence established the facts herein before set out to their satisfaction then, notwithstanding the

fact that Selina Clarence is the prisoner’s wife, they might find him guilty on both counts, or

either count of the indictment’.924 However the jury ‘strongly recommended mercy’ in

sentencing925 and the judge was wary of the convictions based on his direction. He referred the

case for further clarification to the Queen’s Bench, with the request, ‘I desire the opinion of the

court, whether upon such direction and facts the prisoner could properly be convicted on both

923 Anna Clark, Women’s Silence, Men’s Violence, 7. 924R v Clarence [1888] 22 QBD 23 at 24 per Recorder of the City of London. 925 PRO: Crim 8/1.

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counts, or either count of the indictment’.926 Clarence was released on £150 surety, paid by his mother.927

The case was referred to a sitting of five of the Queen’s Bench. However, ‘considerable

differences of opinion’ about the verdict surfaced early among the judges.928 Chief Justice Lord

Coleridge noted that the case was one ‘of the greatest importance, involving questions of serious difficulty’.929 He explained that the case would be held over until the defendant could be provided counsel by the Treasury, and until all 15 of the Queen’s Bench were available to hear the ‘important’ case. Thirteen men of the Queen’s Bench presided over the case, with one of the full 15 ‘being abroad on account of ill-health’ and the other ‘being at Chambers’.930

Clarence had been unrepresented at trial. On referral to the Queen’s Bench it was decided that as the case was of ‘serious difficulty’, the Treasury should appoint defence. Initially Mr Poland for the prosecution had explained that ‘knowing that the prisoner was not represented by counsel, he had felt it to be his duty, besides preparing his own argument for the Crown, to examine the law and decisions which might be deemed in favour of the accused also’.931

However his efforts were not necessary as Mr Forrest Fulton was appointed by the Treasury to defend Charles Clarence.

Mr Forrest Fulton and his creation of the marital rape exemption

Forrest Fulton deserves to be remembered: he illustrates how the myths created by individuals forever affect our lives. Fulton was later knighted and appointed the Common Sergeant. Yet he is probably most infamous for his mishandling of the Adolf Beck case, the miscarriage of

926 R v Clarence [1888] 22 QBD 23 at 24 per Recorder of the City of London. 927 PRO: Crim 4/1030 118901. 928The Times, 11 June 1888, 4. 929 Ibid. 930The Times 18 June 1888, 4. 931The Times 11 June 1888, 4.

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justice that led directly to the establishment of the English Court of Criminal Appeal in 1907.932

Forrest Fulton’s ignoble role in the development of the English Appeal Court of Appeal is reasonably well documented. However his fundamental role in creating the marital rape exemption is rarely noted. Modern state mythology might tell us that a wife’s legal sublimation to her husband was simply a common and accepted ‘fact’ of the 1800s. But in fact, it took the tenacity and drive of one man for this myth to be made law. Charles Clarence was convicted of assault, not involving the constituent component of consent. However the case for appeal was introduced creatively with the ‘marital contract’ of consent to sex as an explicit priority.

Fulton’s arguments in Clarence were premised on a fixed view of the nature of sex, consent and marriage, and the absolute importance of shielding sex and sexual negotiations from the scrutiny and rigors of the criminal law, most importantly from avenues of recourse for harm.

932 In 1895 Adolf Beck was charged with theft for having defrauded women of their jewellery. Mrs Ottilie Meissonier had alleged that Beck had introduced himself to her as a member of the aristocracy, and having taken some of her jewellery to ‘have it mended’, had given her a worthless cheque as security and absconded (Lewis: 1991: 24). Ten women testified that Adolf Beck had defrauded them in a similar manner. Beck was charged with felony along with misdemeanour offences on the grounds that he had previously been convicted of similar offences in 1877. In fact, it was John Smith (alias William Thomas, alias William Wyatt) who had been arrested and imprisoned for the earlier offences. Beck resembled Smith physically and a police officer had testified at the committal hearing that Adolf Beck was the John Smith he had arrested almost twenty years earlier (Burnside: 1996). Beck’s defence was mistaken identity, supported by the argument that he was living in Peru at the time of the earlier offences. Forrest Fulton presided over the case as the Common Sergeant. Fulton did not allow evidence of Beck’s alibi to be submitted as he argued that the current trial was for offences committed in 1895, not those of 1877. Beck was convicted and imprisoned for four years. It was realised that indeed there had been a mistake when John Smith was arrested for committing similar offences again. The clincher seemed to be that Smith was circumcised while Beck was not. Peter Hill has described Forrest Fulton as a ‘forgetful man’, due to ‘the fact that he seems to have forgotten that he had met the real John Smith’. According to Hill, Fulton should have realised that Beck and Smith were not the same person: as a barrister he had prosecuted John Smith in the 1877 case. But when the Home Office suggested the possibility of a re-trial in the Beck case, Fulton opposed the idea. Fulton gave ‘due weight to the previous conviction and the evidence that had produced it, and decided his opinion should be consistent with the trial verdict…It was set in stone that the alibi was a dead issue, so further evidence on it could not affect the decision. On hearing the judge’s opinion, the Home Office decided to do nothing’ (1998: 1029). However once the real John Smith was arrested again, the error was apparent. On realisation of the error a Committee was established to investigate the wrongful conviction, although Beck had already served his sentence. According to Julian Burnside, the Committee was ‘trenchant in its criticism of Sir Forrest Fulton, and expressed the view that his minute of 13 May 1898 to the Home Office [concerning Beck’s case] was hardly one which a trained lawyer could have written’ (Burnside: 1996). Beck was pardoned and the Bill to establish the Court of Criminal Appeal was introduced to Parliament as a direct result of the case of Adolf Beck. The Court was established in 1907 and Adolf Beck died ‘a broken man’ in 1909 (Burnside: 1996).

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Fulton argued that as Selina had consented to sex with her husband, there had been no assault.

In response to the suggestion that her consent might have been vitiated by her ignorance about her husband’s disease, Fulton introduced to the court the pleas of Sir Matthew Hale that I explain in Chapter Six. Fulton advised of the perils of denying Hale’s dictum due to the argument that Selina’s consent was vitiated because she was not aware of her husband’s disease. Fulton warned that the consequence of departing from the principle that the wife’s consent is irrevocable on the ground that fraud vitiates her consent would be that any kind of fraud would vitiate such consent; and any deceit practised by a person by means of which he obtained a woman’s consent would render such person guilty of rape’.933 Fulton’s argument was, first, that Clarence’s act of inflicting GBH was not unlawful, due to the doctrine of irrevocable consent. And second, that it must be considered lawful, due to the broader problems for men he foresaw in denying irrevocable consent.

Fulton’s goal in Clarence seems to have been to protect sex and indeed men’s access to sex from the scrutiny of the criminal law, despite whatever harm sex might cause. Realising this goal entailed denying the relevance of harm to the assessment of assault in the context of sex.

And in Fulton’s logic it entailed denying a wife’s liberty to refuse to consent to sex, apparently no matter how dangerous or deadly that sex might have been. Such a ‘fixed view’ in defence counsel might not be so surprising. After all as J M Balkin notes, this is the job of lawyers who essentially are ‘problem solvers’.934 The ‘fixed view’ of Forest Fulton was aimed at expediting

Charles Clarence’s acquittal. This is not surprising. However Fulton’s ‘fixed view’ and goal

provided for a creative interpretation of the criminal law of assault met with little resistance

from six of the Victorian bench, despite its departure from and inconsistencies with common

law precedent, and its reliance on an unsupported and unproclaimed 17th century opinion of Sir

Matthew Hale. As I noted in Chapter Six, this lack of resistance was not necessarily a feature of

933 R v Clarence (1888) 16 Cox CC 511 at 512 per Fulton. 934 JM Balkin, ‘A Night in the Topics: The Reason of Legal Rhetoric and the Rhetoric of Legal Reason’ in Peter Brooks and Paul Gewirtz, Law's Stories: Narrative and Rhetoric in the Law (New York: Yale

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the court in this era. Hale was far from sacrosanct, and women’s testimonies of curtailed liberties were sometimes accepted by the courts.935 In creating the marital rape exemption,

Forrest Fulton provided a creative angle for Clarence’s defence to charges of criminal assault and GBH. And for six of the Queen’s Bench, this angle was imperative to social stability.

A lack of unanimity: the fragile judgment of Clarence

The Queen’s Bench was interpreted for a century after quashing the convictions of Charles

Clarence, as correctly affirming the views of Hale and therefore, the marital rape exemption.

The mythologies of Clarence and our permissive evolution from the case have been tenacious and far-reaching. It is still common to see it argued that in invoking the exemption, Clarence simply affirmed the prevailing Victorian common law understanding of a wife’s rights. For example, Damian Warburton writes that ‘in 1888 a wife had no right to withhold consent and her husband could not be found guilty of raping her’.936 In 2003 the Court of Appeal in Cort noted that Clarence’s convictions were quashed in part because in 1888 ‘a man could only in very particular circumstances assault his wife by having intercourse with her because of a general consent to intercourse given at the time of marriage’.937 These analyses, in their support

of the permissive mythology of evolution from a repressive and dogmatic Victorian state, ignore

the radical, normative and stipulative nature of the Clarence decision and of the judgment of

Stephen in particular. They discount the myth making power of individuals acting for the state.

Prior to Clarence, the view that a wife’s consent was irrevocable had not been affirmed in the

criminal law, and even within the majority of Clarence there was no unanimity regarding the

grounds of the opinion. In fact most of the judges in Clarence did not accept Hale’s

pronouncement absolutely. In emphasising this lack of unanimity among the Bench, I want to

University Press, 1998), 215. 935 R v Jackson [1891] 1 QB 673. 936 Damian Warburton, ‘A Critical Review of English Law in Respect of Criminalising Blameworthy Behaviour by HIV+ Individuals’, 63. 937 R v Cort [2004] QB 388.

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illuminate holes in modern mythology that might depict the Victorian view of sex as simple and uncontested.

Justice Wills, who introduced the judgment and with whom Lord Coleridge concurred, stated that he was ‘certainly not prepared to assent’ to the proposition that rape in marriage is impossible.938 For Justice Wills there seemed to be ‘no sufficient authority’ for the proposition at

all, and it was ‘equally true that a married woman, no less an unmarried woman, would be

justified’ in refusing sex had her husband disclosed his disease to her.939 Yet still he held that

affirming the convictions would prove untenable in its implications. Wills was in agreement

with the paranoid logic of the defence that the convictions might mean that ‘a wide door will be

opened to inquiries not of a wholesome kind’, particularly involving disgruntled and defrauded

prostitutes, such as if a ‘man meets a woman on the street and knowingly gives her bad money in

order to procure her consent to intercourse with him’.940 In such an instance, for Wills, ‘it would be childish to say she did not consent’.941

The chastisement by Wills of ‘childish’ complaints of sexual harm suggests he was unwilling to

conceive of sex in terms of a legitimate or ‘real’ harm, despite women’s complaints to the

contrary. Wills was mainly interested in cases of prostitution and ‘seduction’ and he was

concerned with the difficulties he foresaw in ‘arriving at the truth’ in cases of disputed

consent.942 More specifically, he was pre-occupied with the potential harm to men at the hands of unscrupulous prostitutes and other dishonourable women, potentially all women. Wills ruled that rape in marriage was possible, but that Selina Clarence’s consent was real and legitimate.

Thus he held there was no assault.

938 R v Clarence (1888) 16 Cox CC 511 at 520 per Wills J. 939 Ibid. 940 Ibid. 941 Ibid. 942 Ibid.

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Justice Hawkins also disputed the extent of Hale’s authority. Hawkins argued to uphold the convictions in what has been described as a ‘spirited dissent’,943 and disputed that Hale’s

opinion should be applied in the case of physical harm. While Hawkins agreed that the marital

contract conferred upon the husband the ‘irrevocable privilege to have sexual intercourse with

her’ in the case of ‘normal relations’, he argued that ‘this marital privilege does not justify a

husband in endangering his wife’s health and causing her grievous bodily harm’.944 Justice

Field, with whom Justice Charles concurred, also argued for the convictions to be upheld. Field had presided over the 1877 trial of Flattery that first recognised rape by medical fraud, a ruling

Stephen criticised as incorrect.945 Justice Field was also critical of the use of Hale’s opinion, stating,

the authority of Hale C J on such a matter is undoubtedly as high as any can be, but no other authority is cited by him for his proposition, and I should hesitate before I adopted it. There may, I think, be many cases in which a wife may lawfully refuse intercourse, and in which, if the husband imposed it by violence, he might be guilty of a crime. Suppose a wife for reasons of health refused to consent to intercourse, and the husband induced a third person to assist him while he forcibly perpetrated the act, would anyone say that the matrimonial consent would render this no crime?946

In contrast to those in dissent was the less sympathetic opinion of Chief Baron Pollock, who admired Lord Hale. Baron Pollock argued that ‘the wife as to the connection itself is in a different position from any other woman [and] such a connection may be accompanied with conduct which amounts to cruelty, as where the condition of the wife is such that she will or may suffer from such connection’.947 However it was the opinion of Stephen that found most

943 R v Cuerrier [1997] 111 CCC (3d) 261 (CACB), per Prowse J. 944 R v Clarence (1888) 16 Cox CC 511 at 532 per Hawkins J. 945 R v Flattery (1877) 2 QB 410. Stephen criticised the decision in Flattery, asserting ‘if such permission is given, the fact that it was obtained by fraud, or that the woman did not understand the nature of the act, is immaterial’ (1883: 185-86). 946 R v Clarence (1888) 16 Cox CC 511 at 537-538 per Field J. This was the circumstances of Lord Audley Earl of Castlehaven’s trial. He was put to death (R v Audley (Lord) (1631) 3 St Tr 401). In 1976 the House or Lords convicted Mr Morgan for aiding and abetting the rape of his wife. Unlike Lord Castlehaven, Morgan was not treated as a principal in the case, primarily due to the fiction of Clarence, that a man may not be guilty of the rape of his wife (DPP v Morgan [1976] AC 1982).

947 Ibid at 542 per Pollock CB.

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resonance, and which is considered by Bruce McFarlane and others to have ‘formed the decision of the court’.948

Stephen and Clarence: making an exception

The opinion of Stephen in Clarence was supported explicitly by four of the 13 judges in the

case. Stephen’s focus was on the nature of disease and assault as it is understood by legislation,

and also on the implications of acknowledging that fraud vitiates consent in terms of sex. The

arguments of Stephen to quash Clarence’s convictions are sometimes explained in

contemporary analyses as having rested on Stephen’s direction concerning the nature of assault

and the inflicting of GBH as defined by statute. Stephen argued,

the words “infliction of bodily harm”….appear to me to mean the direct causing of some grievous injury to the body itself with a weapon, as by a cut with a knife, or without a weapon, as by a blow with a fist or by pushing a person down. Indeed, though the word “assault” is not used in this section, I think the words imply an assault and battery of which a wound or grievous bodily harm is the manifest immediate and obvious result.949

And Damian Warburton summarises the case as follows: ‘the majority in Clarence could not

reconcile what they saw as a requirement for an immediate, violent, and obvious harm resulting

in a wound, as they saw the word “inflict” within the statute to mean, with infection resulting

from consensual intercourse’.950 This is a common interpretation of the case. Again, for David

Ormerod, ‘a husband’s knowing transmission of the disease to his wife by acts of sexual

intercourse was held not to constitute an infliction because there was no assault’.951 This

interpretation of Clarence persists beyond academia, within the criminal law. In 2003 Lord

Buxton directed authoritatively in Cort that the ‘causing of disease….albeit by direct physical

948 Bruce McFarlane, ‘Historical Development of the Offence of Rape’, 32. 949 R v Clarence (1888) 16 Cox CC 511 at 525 per Stephen J. 950 Damian Warburton, ‘A Critical Review of English Law in Respect of Criminalising Blameworthy Behaviour by HIV+ Individuals’, 60. 951 David Ormerod, ‘Criminalising HIV Transmission: Still no Effective Solutions’ (2001) Common Law World Review, 30 (2), 138. In 1998 it was clarified that ‘inflict’ could include psychological harm (R v Burstow [1998] AC 147).

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contact, did not amount to “inflicting” injury under the terms of S.20 of the Offences Against the Person Act 1861 under which Mr Clarence was charged’.952

However, the nature of assault was not the primary concern of Stephen, as he clarified in the

1889 case of Moss.953 The case of Moss concerned a married couple’s convictions for GBH for

child abuse, primarily by starving their child. Justice Wills had referred the case to the Queen’s

Bench for clarification. Wills was concerned that as the abuse primarily concerned starvation

and not physical assault, he should perhaps have directed an acquittal in light of Clarence. He

explained that in Clarence ‘some of the Judges of this Court were supposed to have held, as to a

charge of inflicting bodily harm, that there must be some act of violence’.954 Lord Coleridge

noted that ‘in the case of Clarence Mr Justice Stephen held that “inflict” means some act of

violence’.955 Stephen clarified his position explicitly and curtly in Moss, stating, ‘that was a very subordinate part of my judgment, and I rather protested against philological discussions’.956 A

rudimentary scan of The Times of 1889 reveals the agenda of Stephen in Clarence. However

reading The Times of 1889 for complexities of the Victorian state might not support a modern

establishment propagating the myths of Clarence and the excuses of the 20th century state for its continued implementation of the cruelty of the judgment.

Stephen and marital rape: a hasty conversion

The nature of assault was not the primary concern of Stephen in denying sexual harm in

Clarence. Similarly to Justice Wills, Stephen was preoccupied with the implications of sex for men outside of marriage, especially cases of ‘seduction’ and prostitution and ‘promises not intended to be filled’, cases where women might seek recourse for the harm they identified in

952 R v Cort [2004] QB 388 953 R v Anne Moss and William Thomas Moss (1889) TLR 224. 954 , per Wills J. 955 Ibid at 225 per Lord Coleridge CJ. 956 Ibid, per Stephen J.

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sex.957 Stephen referred to Hale’s irrevocable consent doctrine in Clarence only in his closing

remarks to clarify that in his latest [forthcoming] edition of his Digest of the Criminal Law he

had withdrawn his statement of earlier editions that a husband might, under certain

circumstances, be indicted for the rape of his wife.958

In 1877 Stephen had written in his Digest,

Hale’s reason is that the wife’s consent at marriage is irrevocable. Surely, however, the consent is confined to the decent and proper use of marital rights. If a man used violence to his wife under circumstances in which decency or her own health or safety required or justified her in refusing her consent, I think he might be convicted of rape, notwithstanding Lord Hale’s dictum.959

Stephen’s contradiction of Hale’s opinion was published until the fourth edition of the Digest in

1887. However in Clarence in 1888 Stephen clarified that it had been withdrawn from his latest

(presumably forthcoming) edition. While it is not clear why Stephen had changed his mind about marital rape in the years before Clarence, in 1888 he claimed to have come to wholly support Hale’s opinion.960 But even so, the judgment of Stephen was representative of only five of the 13 on the Bench. Including the mandate for cruelty of Baron Pollock, only six of the

Bench affirmed Hale’s opinion. The creation of the marital rape exemption was far from straightforward or unanimous. This observation has led Jocelynne Scutt to comment that despite

957 R v Clarence (1888) 16 Cox CC 511 at 527 per Stephen J. 958 Ibid. 959 James Fitzjames Stephen, A Digest of Criminal Law (Crimes and Punishments), Fourth Edition (London: Macmillan & Co., 1887), 186. 960 In fact the paragraph was not omitted. It was altered. The matter is confused by Stephen’s death. Stephen died in March 1894 before the 5th edition of his Digest was published later that year. The 5th edition is edited by his sons Sir Herbert Stephen and Harry Lushington Stephen who professed to have ‘endeavoured to make it as nearly as possible what it would have been if it had been prepared by the author’ (Stephen & Stephen: 1894: preface). In this edition Stephen’s commentary on Hale’s irrevocable consent doctrine suggests that a husband might be found guilty of indecent assault of his wife, rather than rape, as the earlier editions had directed. The fifth edition states: ‘If a man used violence to his wife under circumstances in which decency or her own health or safety required or justified her in refusing her consent, I think he might be convicted at least of an indecent assault’ (Stephen & Stephen: 1894: 208. My emphasis). It is unclear whether Stephen or his sons authorised the alteration.

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popular legal mythology sustained throughout the following century, Clarence was ‘not the bulwark of the irrevocable consent argument it may have been considered’.961

Marital rape: an insignificant matter

Possibly even at the time, Clarence was not understood to have confirmed the marital rape

exemption, or to have been a particularly important judgment. In 1894, the fifth edition of

Stephen’s Digest of the Criminal Law was published posthumously, edited by his sons Sir

Henry and Harry Lushington, after Stephen had died in March of that year. His sons explained in the preface of the digest that ‘not many cases of the first importance have been decided since the publication of the Fourth Edition at the beginning of 1887….All cases which seem either to alter or more fully to expound the law, have been incorporated either into the text or by way of illustration’.962 Clarence is not cited in the Digest.

In Stephen’s obituary in The Times it is stated that ‘it will be always a marvel that he enriched

the Reports with so few judgments which are landmarks in English law’.963 It is not clear from where the significance and authority of the marital rape exemption is understood to have arisen.

It seems that in the 60 years after Clarence marital consent was not disputed within the criminal law. By the time it came to be tested in 1949 the mythology of the marital rape exemption had been cemented as indisputable in the common law. And it has persisted since within academia as the arguments of Warburton and others show. It deserves question why, within law and academia, the misogyny of Clarence came to prevail so unabashedly. The mythologies of the state have transformed themselves in history to present themselves as natural. Although I emphasise the lack of unanimity concerning marital rape among the Bench in Clarence, I would still argue that the majority and the minority of the Bench held the view of sex as fundamentally

961 Jocelynne A Scutt, ‘Consent in Rape: The Problem of the Marriage Contract’ (1977) Monash Law Review, Vol 3, June, 260. 962 Stephen & Stephen (eds) A Digest of the Criminal Law (Crimes and Punishments), preface. 963 ‘Death of Sir James Stephen’, The Times, 13 March 1894, 11.

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a man’s right. The debate in dissent in Clarence concerned the limits of this right in the case of

physical harm, such as gonorrhoea.

The legacy of Clarence: fraud in sex & myth making

Here I want to briefly outline the prevailing legal legacy of Clarence. It is an extraordinary case,

in terms of breadth and longevity, and in terms of how it governs legal interpretation of sex and

the law, premised on the harmless nature of sex and the essential nature of sex to man and

society. While it might be obvious that Clarence reveals much about the Victorian state, its

longevity reveals much about our own state and leads me to question if there is a fundamental

distinction to be made between the new and the old state in regard to sex. Despite the dramatic

revolution of the 1960s, this Victorian view, with its prejudices and its focus on men, prevails.

Aside from the marital rape exemption, the prevailing legacy of Clarence is considered by

Simon Bronitt to have been its ‘settling of the issue’ of fraud and sex, in that it ‘unequivocally

determined that only certain types of fraudulent behaviour would vitiate the victim’s

consent’.964 More enthusiastically put by Chief Justice Michael Morland in 1995, the judgment

‘exposes the fallacy’ that there can be rape by ‘fraud or false pretences’.965 The common law

has historically privileged violence in its assessment of the crime of sexual assault, and judges

have been reluctant to recognise that fraud would vitiate consent to sexual intercourse.966 This

reluctance might be traced to Hale’s 17th century definition of rape as ‘having unlawful and

carnal knowledge of a woman by force and against her will’.967 Hale’s view was compounded by Blackstone who defined rape in the 18th century as ‘carnal knowledge of a woman forcibly and against her will’.968 Rape was predicated on the resistance of the victim, who it was held,

964 Simon Bronitt, ‘Rape and Lack of Consent’ (1992) Criminal Law Journal, 6, 293. 965 R v Linekar [1995] 3 AII ER 69 at 76 per Morland CJ. 966 Simon Bronitt, ‘Rape and Lack of Consent’, 293. 967 Ibid. 968 Stephen J Schulhofer, Unwanted Sex: The Culture of Intimidation and the Failure of the Law (New York: Harvard University Press, 1998), 18.

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must have ‘resisted to the utmost’ in order to prove rape. The construction of the offence around non-consensual forced intercourse ‘represented the crime of rape as a crime of sexual violence’969 and provided for difficulties in conceptualising the crime of ‘non-violent’ rape, such as in the case of fraud.

In the 1880s, rape by fraud was a contested topic. A series of ‘husband impersonation’ trials provided for debate over the meaning of rape by fraud, in which men had stolen into women’s beds to obtain sex from unwitting married women. There had been a general hesitancy to convict for rape in such cases, possibly because of the death penalty enforced for rape from

Henry VIII until 1841. However, the reluctance to convict seems to have also been related to a general incredulity about the harm of such contested sex.970 Nonetheless, in 1885 the Criminal

Law Amendment Act 1885 (s4) was enacted to clarify that

whereas doubts have been entertained whether a man who induces a married woman to permit him to have connection with her by personating her husband is or is not guilty of rape, it is hereby enacted and declared that every such offender shall be deemed to be guilty of rape.971

969 Victor Tadros, ‘No Consent: A Historical Critique of the Actus Reus of Rape’ (1999) Edinburgh Law Review, Vol 3 (3), 319. 970In 1822 Chief Justice Dallas pointed out the important difference between ‘compelling a woman against her will, when the abhorrence which would naturally arise in her mind was called into action, and beguiling her into consent and cooperation’ (Rex v Joseph Jackson [1822] 168 ER 911). In 1884 the Irish case of Dee finally recognised as rape the crime of sex obtained by impersonating a husband. The defendant had stolen into the bed of a sleeping married woman and ‘had connexion with her’ until she felt his hair and realised the man was not her husband (R v Dee [1884] 15 Cox CC 579). The conviction in Dee was directed by the realisation that the ‘identity of the parties may be a factor intrinsic to the performance of the act of intercourse’ (Scutt: 1975: 59). 971 The perceived need for such legislation would suggest that the ‘husband impersonation’ cases were not uncommon. However for Chief Justice Michael Morland, their frequency ‘gives rise to cynicism’ (1995: 121-22). Morland’s sceptical thesis is in tune with the traditional judicial disbelief of women’s testimonies. This ‘tradition’ can be traced at least to the 17th Century, and Hale’s authoritative warning that came to feature in rape trials up until the 1990s: that the accusation of rape is ‘easily to be made and hard to be proved, and harder to be defended by the party accused, tho ever so innocent’ (Lanham: 1983: 156). Identity impersonation in order to gain sex is not a peculiarly Victorian activity. Despite the cynicism of Chief Justice Morland, cases of a similar modus operandi still appear. For example, see R v Hauth & Fiora [1994] SASC 4500, New York v Hough [1994] 607 NYS 2d 884, R v Elbekkay [1995] Crim LR 163.

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The rape of another man’s wife was a problem for the state. However, confusion persisted over the nature of which fraud, if any other than the strictest of identity impersonation, might vitiate a woman’s consent to sex.972 That was, until the decision of Clarence.

The discussions of fraud in Clarence arose from the debate over whether Selina’s ignorance about her husband’s gonorrhoea had vitiated her consent to sex, in that her consent had been fraudulently induced. This was hypothetical discussion obiter of the Bench, ‘clearly not incumbent on them’ in a case concerning GBH and assault.973 Although Selina Clarence’s status

as a wife made the discussion particularly irrelevant (as her consent was deemed irrevocable),

the debate in court was lengthy over the ramifications for men of the principle of recognizing

that fraud might vitiate a woman’s consent. In particular, the recourse of prostitutes was feared.

Forrest Fulton introduced the case with this fear in explicit priority. The fear of the application

of the principle that fraud might vitiate consent, to women in general beyond the wife, prompted

a lengthy digression from the charges at hand by the Bench obiter on the varied ‘dangers’ of

allowing women legal recourse for the harm of sex. Stephen was particularly concerned with

the consequences of acknowledging that fraud might vitiate consent to sex. For Stephen, ‘the

proposition that fraud vitiates consent in criminal matters is not true if taken to apply in the

972 Aside from husband impersonators, medical fakery was another important area of legally contested consent to sex in the 19th century. In the 1877 case of Flattery the defendant had induced a woman of 19 to consent to sexual intercourse by claiming that it was a medical procedure to cure her of the fits she suffered. Flattery was convicted of rape, with the direction that where the victim did not comprehend the true sexual nature of the act due to her youth or naivety, a rape might have been committed, for her consent in fact was not consent to sexual intercourse (R v Flattery [1877] 2 QB 410). See note 950 for Stephen’s criticism of the decision in Flattery. Again, such cases are far from quaint relics of Victoria. In 1990 Australian radiographer Mobilio was charged with 8 counts of rape and found guilty of 3, after performing unnecessary intravaginal ultrasounds on his patients for his own sexual gratification. However on Appeal to the Supreme Court of Victoria, his convictions were quashed, as the patients had ‘consented’ to the intravaginal insertion (R v Mobilio [1991] I VR 339). After this finding the Victorian Crimes (Sexual Offences) Act was amended to include a provision explicitly identifying such medical fraud as sexual assault, over 100 years after this crime was clarified in Flattery. In 2000 Naveed Tabassum was convicted in the English Court of Appeal of indecent assault for performing unnecessary breast examinations on women (R v Tabassum [2000] 2 Cr App R 328). 973 Michael, D A Freeman, ‘“But if you Can’t Rape Your Wife, Who[m] Can you Rape?”: The Marital Rape Exemption Re-examined’, 11.

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fullest sense of the word’.974 In particular, sexual matters prove well beyond the ‘maxim that fraud vitiates consent’.975 Stephen’s concerns lay also with the dangers of extending such rights

of recourse to those engaging in acts of ‘immoral’ (non-marital) sex. Similar to Justice Wills,

Stephen was particularly concerned that perhaps ‘seduction’ might be captured as criminal

should the contract of sex come to be regulated by law: ‘many seductions would be rapes, and

so might acts of prostitution procured by fraud, as for instances by promises not intended to be

fulfilled’.976

The fear of extending criminal fraud provisions more broadly to the contract of sex was simply

the fear of women’s recourse in the face of disputed consent. The fears of Justice Wills extended beyond commercial prostitution to that of private seduction, exhibiting a grave antipathy toward regulating or in any way interfering with the ‘contract’ of sex, either overtly commercial or social. For Wills this specifically implicated the prostitute and the contract of commercial sex. What is perhaps more worrying is his assessment of seduction, or non- commercial sex, as primarily if not inherently a deceitful pursuit:

If the conviction be upheld on the grounds of the difference between the thing consented to and the thing done, the principle will extend to many, perhaps most cases of seduction, and to other forms of illicit intercourse, including at least theoretically, the case of prostitution.977

Clarence confirmed a narrow interpretation that isolated criminal fraud in sex to the nature of

the act and the identity of the person who does the act. The withholding of information about a

venereal disease to obtain sex was ruled not to constitute fraud that would vitiate consent, as

venereal disease was held not to transform the ‘nature of the act’ of sex.

974 R v Clarence [1888] 22 QBD 23 at 44, per Stephen J. 975 Ibid. 976 Ibid. 977 Ibid, at 32, per Wills J.

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The prevailing legal legacy of Clarence is a distinction between sex that is obtained by fraud in

the factum, and that which is obtained by fraud in the inducement.978 Put simply, this means that

if the woman is unaware that she is physically participating in sex, such as in the case of

medical fraud, then it might be recognised legally that her consent is vitiated by the deception of

the very act (in the factum). The other tactic sometimes found to constitute rape by fraud in the

factum involves the man who obtains sex by masquerading as the woman’s husband. However

if a woman is tricked into ‘consenting’, or makes a mistake (in the inducement), yet knows that

she is having sex, the fraud and intention of the man is irrelevant. Thus the fraud of concealing a

venereal disease is irrelevant to the crime of rape. This direction in Clarence has placed strict

limitations on the legal concept of fraud in rape979 and would seem to discount the role of mens

978 Ibid. 979 The distinction has left much room for debate surrounding the very nature of the act. For example, is consent to sex with a husband concealing his venereal disease of the same nature as consent to sex with no disease? For Ormerod and Gunn, the answer emphatically is ‘No’ (1996). (As I note in the introduction to Section Two, Clarence’s authority on disease transmission would appear to be in limbo, since Dica in 2004 (R v Dica [2004] EWCA Crim 103). See note 776. Also, the identity of the person who does the act, as stipulated in Clarence, is undefined. It was a phrase made in reference to the strictest of husband impersonation cases, but the varied social and moral meanings of identity and indeed the nature of the act of sex were disregarded in this judgment in favour of a narrow interpretation. In 1957 in Papadimitropoulos the Australian High Court built on the reasoning of Clarence, to rule that ‘rape is carnal knowledge of a woman without her consent: carnal knowledge is the physical fact of penetration; it is the consent to that which is in question; such a consent demands a perception as to what is about to take place, as to the identity of the man and the character of what he is doing. But once the consent is comprehending and actual the inducing causes cannot destroy its reality and leave the man guilty of rape’(Papadimitropoulos v R [1957] 98 CLR 249). John Papadimitropoulos had been charged in 1956 with having carnal knowledge of a woman without her consent. The jury of the Supreme Court of Victoria returned a verdict of guilty of rape with mitigating circumstances. Upon appeal to the High Court, his conviction was overturned. In the Court’s opinion, Papadimitropoulos had not committed a rape, rather his ‘wife’ had made a ‘mistake’. The victim was a Greek woman who had recently arrived in Australia and did not speak English. A few days after their first meeting Papadimitropoulos (who spoke both Greek and English) asked her to marry him. They attended the Registry office to give notice of intent to marry. However on return the accused told the victim (in Greek) that they were now married. He also introduced her to the landlady of their boarding house as his wife. On the basis of being married, the victim consented to sex on a number of occasions over four days, after which the accused without any explanation to her left Melbourne for Sydney, taking with him all of her money. His ‘wife’ soon discovered that in fact there had been no marriage ceremony. She was then ‘turned out’ of her boarding house for ‘being a bad girl’. Her ‘husband’ did not return. The victim testified that she had consented to sex only in the belief that she was married. That is, she ‘consented to an act of marital intercourse, not to one of fornication’. The Court however, accepted the defence that ‘although there may be a great social and moral difference between the two things [marital sex and fornication], there is no essential difference in the nature of the act which would vitiate the consent given. Such as essential difference….must arise from the nature of the act itself’ (Papadimitropoulos v R [1957] 98 CLR 249). On this reasoning, the accused had not committed rape. This was despite the fact that the court accepted that his victim was purposefully misled, not only as to the (moral/social) character of the act, but also as to the identity of the man. As the accused’s fraud was held to be that in the inducement, rather than of the factum, it was deemed not to vitiate consent (Papadimitropoulos v R [1957] 98 CLR 249).

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rea in rape obtained by fraud: a man’s intent to ‘take’ sex that he would otherwise not be

‘given’, would appear irrelevant to the crime. And in this area of law the legacy of Clarence prevails.980

Unlawful harm and the transformative nature of consent in assault

Leaving aside the discussion of rape, I now explain the legal arguments of Clarence to illustrate how in the twists and turns of state mythology a case concerning GBH came to deny the harm of sex within marriage. This genesis is generally misunderstood and has been taken for granted within legal academic literature and within law itself. However it was not an obvious or predictable course of argument: it was purposeful and inventive.

Forrest Fulton introduced Clarence’s case with a manipulation of the concept of ‘unlawful’.

Fulton argued that under the Offences Against the Person Act 1861 the offence of grievous bodily harm involves the ‘unlawful’ infliction of harm. Therefore it is necessary to establish both ‘that the act of the prisoner was unlawful, and that grievous bodily harm ensued in consequence of such an unlawful act’.981 While Fulton conceded that grievous bodily harm in fact did ensue from Clarence’s actions, he argued creatively that ‘the act which commissioned it

980 In 1995 Linekar confirmed Clarence concerning the ‘nature of the act’. Linekar involved sex obtained from a sex-worker by pre-meditated deception. The accused negotiated to pay for sex, with no intention of paying, and in fact with no money on his person. After they had sex and it became apparent that he was not going to pay, the woman immediately knocked on the door of a neighbouring house. She was ‘distressed, nearly naked and complained that she had been raped’. The accused was convicted of rape with a minimal sentence of 2 years probation and 100 hours community service but on appeal the conviction was quashed. It was held by Chief Justice Michael Morland that the woman in this case was defrauded in the inducement, not as to the nature of the sex itself. That is, it was held that Linekar’s deception ‘related to the collateral matter of payment and this did not negative consent. Fraud does not destroy the consent. It only makes it revocable’ (R v Linekar [1995] 3 AII ER 69, per Morland CJ). Linekar was endorsed in Cort in 2003, when Justice Buxton affirmed that the formulation adopted from Clarence in Linekar is the law so far as rape is concerned. Buxton questioned ‘must it be extended to the case of kidnapping?’ (R v Cort [2004] QB 388), perhaps suggesting that kidnapping might be thought a more serious and lamentable offence than rape. The formulation was not extended to kidnapping. The 2000 Home Office review of sexual offences, Setting the Boundaries, accepted undebated the direction of Clarence concerning rape by fraud (Home Office: 2000: 9-12). At the direction of the review, the provision concerning rape and fraud was integrated into statute for the first time in the Sexual Offences Act 2003 Section 76 2(a) and (b). I discuss this development briefly in the conclusion to this thesis. 981 R v Clarence [1888] 22 QBD 23 at 24 per Fulton.

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was not unlawful’.982 In this logic grievous bodily harm is an offence only if it is inflicted

unlawfully. This seems to suggest that the harm with which the law is concerned is not an

objective category identified by its measurable effects on victims. Instead, harm gains its

meaning and character first and primarily through delineation by the law. Therefore some forms

of recognisable, perhaps even lamentable grievous bodily harm, must be considered lawful by

definition.983 And this distinction relates neither to the measure nor the experience of harm (nor to the intention of the infliction). This view involves a certain understanding of the role of law as well as the nature of harm. In this logic, the object of the criminal law of assault is not primarily to prevent or to redress harm. Rather its role is to demarcate which or whose experience of harm is unlawful.

In the example provided by Clarence, ‘consent’ was argued to be the discriminating factor between lawful and unlawful. In noting that the statutory offence of GBH seemed to allow room potentially for a ‘lawful’ concept of GBH, Fulton cited the 17th century pleas of Sir Matthew

Hale to distinguish one relevant criterion. He argued that there was ‘high authority’ for deciding

that the ‘prisoner’s act here was lawful for according to Lord Hale a husband cannot be guilty of

the rape committed of his wife due to her irrevocable consent given on marriage.984 Fulton

argued that this was ‘law in Lord Hale’s time and is still the law’,985 despite as I have noted, the

fact that Hale’s pronouncement seems not once to have been tested or affirmed in the 150 years

after its publication.

Fulton’s argument transformed a case of GBH and assault into a discussion of the marital

‘contract’. Fulton’s argument was twofold, with both approaches based on the transformative

nature of ‘consent’. Along with Hale’s opinion on a wife’s sexual consent, Fulton also

982 Ibid. 983 In Brown it is clarified that ‘unlawful’ is in relation to self defence (R v Brown [1993] 2 AII ER 75 at 78 per Lord Templeman). 984R v Clarence [1888] 22 QBD 23 at 24 per Fulton. 985 Ibid.

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speculated on the actual nature of criminal assault. With regard to Clarence’s second conviction for common assault, Fulton argued that in order to support a conviction ‘it is necessary to prove an assault, and an assault implies an absence of consent’.986 And in this instance, Hale’s decree ensured the wife’s ‘consent’ to the act of sex, which constituted the act of inflicting the harm.

The statutory offence of assault occasioning actual bodily harm does not contain the magic transformative word ‘unlawful’, on which Fulton’s arguments against the GBH conviction relied. Therefore Fulton inferred a constitutive component of consent for the charge of common assault. In simple terms, Fulton’s argument was that assault implies the absence of consent and

Hale’s doctrine ensured the presence of consent in this instance. There are two important issues at stake in this view. Both concern the peculiar status of sex within the law.

First is the normative construction of the meaning of consent. Similar to the abstracted and stipulated definition of harm, consent in this argument is defined outside of, in fact a priori to, individual experience and volition. It seems so abstracted as to be beyond any ‘real’ sensible meaning, in the common sense. Consent was ruled to have been given irrevocably at the time of marriage. Therefore Selina, the wife in this instance, was held to have consented to the act of harmful sex, despite her testimony to the contrary. In this analysis consent is granted transformative powers. It is the primary deciding factor in determining the commission of assault. Yet consent itself is defined as a concept exterior to the individual woman and situation.

Its value and its presence are determined by abstract law unrelated to the woman’s understanding or circumstances.

In the common understanding, consent usually is understood to mean an individual’s giving free agreement. It implies a sense of personal choice, volition and autonomy. However personal choice seems not to be relevant to the law in this instance. Again the view of the role of law here is particular: it appears to suggest that the object of the criminal law in regard to sexual

986 Ibid at 25 per Fulton.

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assault primarily is not to prevent or to redress assaults, but rather to demarcate which harms, or whose experiences of harm, constitute assaults on persons. In this view, this demarcation rests on ‘consent’. An exterior, imposed and abstractly defined ‘consent’ is the qualifying factor for determining the law’s interest in an individual’s woman’s experience of harm.

Consent to indecent assault: an erroneous authority for Clarence

The second issue involves the use of ‘consent’ in determining the actual presence of assault.

Fulton argued that ‘assault implies the absence of consent’, yet he provided no direct support for this claim.987 In the following section of his address Fulton referred to the 1866 case of Bennett

that had been cited as authority for Clarence’s trial convictions. Bennett involved the conviction

of a man for indecent assault for having sex with his 13 year old niece and infecting her with a

‘foul disease’.988 In this case the girl was staying with her uncle while visiting relatives. The defendant plied his niece with alcohol until she passed out and then had sex with her while she was asleep or unconscious, on more than one occasion. The girl had no recollection of the assaults but the defendant was convicted on the basis of other evidence. Justice Willes in the judgment shared his disturbing opinion that as the girl had consented to sharing a bed with the defendant, she therefore had ‘consented to have connexion with her uncle’.989 As such, in

Willes’s opinion it would have been ‘impossible to have established rape in this instance’,990 thus explaining the lesser and alternative indecent assault conviction.

Willes’s logic concerning implied consent is bizarre and alarming, even for 1866, that a girl’s consent to sleep in a bed with her uncle implies her consent to sex with him.991 In fact, the issue

of sleeping or drunken consent had been resolved more than 20 years earlier in the 1845 case of

Camplin, the details of which were similar to Bennett, though it did not concern disease

987 R v Clarence [1888] 22 QBD 23 at 24 per Fulton. 988 R v Bennett [1866] 4 F 7 F 1105. 989 , per Willes J. 990 Ibid.

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transmission.992 Camplin was not cited in Bennett where the conviction rested on the harmful

nature of the sex (gonorrhoea), rather than on the nature of the girl’s consent. Bennett was

convicted of indecent assault, despite the consent identified as present.

Forrest Fulton’s apparent hijacking of this case logic is bizarre. Fulton’s argument at this stage

is difficult for me to follow. However he seems to have argued that in Bennett a conviction for rape could not have been sustained, due to the consent present: the presence of consent precludes assault. For Fulton, the indecent assault conviction in Bennett was simply ‘bad law’.

The girl’s (sleeping, comatose) consent ought to have precluded that conviction as well. Despite the ‘bad law’ Fulton took from the ruling the idea that consent precludes assault and applied it to his arguments in defence of Clarence. The fundamental problem with this line of argument is that the discussion in Bennett hypothetically was in regard to rape and the ruling was actually concerned with indecent assault. Leaving aside the dubious proclamation of unconscious consent, the argument that consent precludes a charge of rape is sound in theory.993 However

Forrest Fulton did not defend a rape charge in the case of Clarence. Fulton was addressing convictions of GBH and assault occasioning actual bodily harm that do not involve constitutive components of consent.

The relationship between assault and consent has been confused by the courts, particularly when addressing cases concerning sex. Forrest Fulton paid little attention to the 1867 case of Sinclair,

991 Incest was not a criminal offence in England and Wales until the Incest Act 1908. The age of consent was raised to 12 in 1576 and 16 in 1885. 992 In Camplin the defendant had given liquor to a 13 year old girl, not for the purpose of ‘rendering her insensible’, but for the purpose of ‘exciting her’ so that he might have sex with her. However it seems the girl did become insensible and it was determined that Camplin had raped her, as she was so drunk as to have been incapable of consenting to the act of sex. It was argued in Camplin’s defence that according to Lord Hale, rape involved ‘having unlawful and carnal knowledge of a woman by force and against her will’. As she was insensibly drunk, she did not protest, therefore the sex did not occur against her will. However the court again disputed Hale’s interpretation of rape, with Lord Denman ruling that, ‘it is put as if resistance was essential to rape; but that is not so, although proof of resistance may be strong evidence in the case’ (R v Camplin [1845] 1 Cox CC 220). William Camplin was convicted of rape on the basis of the girl’s lack of consent.

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which also had been used in support of Clarence’s trial convictions, except to note that the judgment had been criticized elsewhere. Sinclair involved a charge of common assault but the

conviction rested on the nature of consent. It was relevant to Clarence for it concerned a

conviction for assault occasioning actual bodily harm for the transmission of gonorrhoea. In

Sinclair the defendant had had sex with a twelve year old girl and had communicated to her a

‘severe’ case of gonorrhoea. The defence was that the girl had not resisted, therefore she had

consented to the act of sex and there was no case to answer.994 Justice Shee seems not to have

been aware of the 1845 Camplin ruling that ‘resistance is not essential to rape’, and directed the

jury that ‘such absence of resistance’ would reasonably imply consent.995 However he also directed that while the girl might have consented, her consent in fact would have been vitiated by her lack of knowledge about the disease. It was on the basis of similar logic that Clarence was convicted at first instance. Justice Shee explained in Sinclair,

if he knew that he had such a disease, and that the probable consequence would be its communication to the girl, and she in ignorance of it consented to the connection, and you are satisfied that she would not have consented if she had known the fact, then her consent is vitiated by the deceit practised upon her, and the prisoner would be guilty of an assault.996

In the case of Clarence Fulton invoked Hale’s notions about irrevocable consent to dismiss the

debate about ‘vitiated consent’ as irrelevant altogether. Fulton maintained that the crime of

assault rested on consent not harm, as apparently was the ratio of Sinclair, and that consent was

implicit in the marital ‘contract’. Fulton claimed simply, that ‘assault implies lack of consent’,

when in fact this is not the case. Despite the confusion that has run through cases involving both

sex and assault, such as Bennett and Sinclair, it generally has been held that consent is all but

irrelevant to the crime of assault. The issue had been resolved when addressed at length in the

case of Coney in 1882, just six years prior to Clarence.

993 In the 1912 case of May it was ruled that ‘it is clear law that consent is an absolute defence to a charge of indecent assault (unless the person assaulted is under thirteen), and that the onus is on the prosecution to negative consent’ (The King v May [1912] 3 KB 572). 994 R v Sinclair [1867] 13 Cox CC 28 per Shee J. 995 Ibid. 996 Ibid.

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Coney: the harm of violence and the irrelevance of consent to ‘real’ assault

The case of Coney concerned prize fighting, or ‘real assault’, not sexual assault. In this section of the chapter I might appear to digress from my discussion of sex and the state. However

Coney, as the authority on consent and assault, was one important precedent used to support the convictions for SM in Brown. Coney rules that consent is irrelevant to assault, and this was upheld in the case of SM. Along with its centrality to Brown, Coney is important to understanding the state’s view of sex, in the contrast of its ratio of consent and assault to that of

Clarence, decided just six years later. I have already illustrated the creative manipulation by

Forrest Fulton of the Offences Against the Person Act 1861 to ensure the quashing of convictions for the assault identified in sexual harm. In discussing Coney I illustrate the deviation of the Bench in Clarence from contemporary common law wisdom concerning the

nature of consent and assault: a deviation that was used to quash convictions for sexual harm.

Coney reveals much about the state’s characterisation of sex in relation to ‘real’ assault.

Coney involved the appeal of three men for their convictions of aiding and abetting common

assaults after they were arrested for watching a prize fight. The trial judge had directed the jury

that as prize fights are illegal,

all persons who go to a prize fight to see the combatants strike each other, and who are present when they do so, are guilty in law of an assault, and that if the persons charged were not casually passing by, but stayed at the place, they encouraged the fight by their presence, although they did not say or do anything.997

On appeal the convictions were quashed with the ruling that while the prize fight did constitute common assaults, the men’s presence in the audience could not be proven to constitute aiding and abetting the assaults. In clarifying the illegal nature of prize fighting, and its connection to assault, Justice Cave explained the irrelevance of consent as follows, ‘the true view is, I

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think….that a blow struck in anger, or which is likely or is intended to do corporal hurt, is an assault….and that an assault being a breach of the peace and unlawful, the consent of the person struck is immaterial’.998

The different treatment of ‘real assault’ and ‘sexual assault’ within the same period in history

reveals much about the underlying assumptions of the state about the nature of both sex and

assault. It exposes the remarkable and purposeful nature of Clarence in its intent to protect the

sex of men from the rule of the state. The treatment of non-sexual assault has evolved in the

law. In Brown, to assess the crime of SM, Lord Templeman outlined this evolution, highlighting the ongoing tensions between the outlooks of the old and the new states, and the emergence of the individual as opposed to the subject:

In earlier days some other forms of violence were lawful and when they ceased to be lawful they were tolerated until well into the 19th century. Duelling and fighting were at first lawful and then tolerated provided the protagonists were voluntarily participants….The act of maim was unlawful because the King was deprived of the services of an able-bodied citizen for the defence of the realm. Violence which maimed was unlawful despite consent to the activity which produced the maiming…..

When duelling became unlawful, juries remained unwilling to convict but the judges insisted that persons guilty of causing death or bodily injury should be convicted despite the consent of the victim. Similarly, in the old days, fighting was lawful provided the protagonists consented because it was thought that fighting indicated bravery and skill and physical fitness. The brutality of knuckle fighting however caused the courts to declare that such fights were unlawful even if the protagonists consented.999

Stephen himself noted, in writing of the history of the English law, that the English common law tradition did not recognise the gravity of personal harm: ‘the extraordinary leniency of the

English criminal law towards the most atrocious acts of personal violence forms a remarkable

997 The Queen v Coney and Others [1882] 8 QBD 535 at 536. Coney is considered an important judgment in the criminal law. In Stephen’s obituary in The Times, his judgment in Coney is referred to as one of his few ‘excellent’ decisions (The Times, 13 March 1894, 11). 998 The Queen v Coney and Others [1882] 8 QBD 535 at 539 per Cave J. My emphasis. 999 R v Brown [1993] 2 AII ER 75 at 79 per Lord Templeman.

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contrast to its extraordinary severity with regard to offences against property’.1000 As I have

noted, the tradition of understanding assaults on persons has been to value the impact of the

assault on the sovereign or on the public interest, rather than on the individual in question.

Nonetheless, the gravity of personal assault has consistently been more comprehensively

recognized and acknowledged in the case of ‘real’ physical assault, than it has in the case of

sexual assault and sexual harm, such as in the case of Clarence. In particular, as I have argued,

sexual assault of women was traditionally understood in terms of its impact on men.

Stephen and Coney: upholding the public interest in regard to individual assault

Stephen in fact had contradictory views on the criminal nature of assault, which caused

confusion for the Lords in Brown. Stephen seems to have separately advocated the legality of

consensual assault, as well as the legal irrelevance of individual consent to assault, which is in

fact a matter of public interest. In his Digest of the Criminal Law, in editions published before

and after Coney, Stephen wrote that ‘everyone has the right to consent to the infliction upon himself of bodily harm not amounting to a maim’.1001 However when ruling in Coney in 1882,

Stephen clarified that the primary interest of the law in assault concerns not the individual’s consent, by rather, the public good. In Coney, Stephen shared his opinions on the nature of assault, that he was in agreement with Justice Cave that,

when one person is indicted for inflicting personal injury upon another, the consent of the person who sustains the injury is no defence to the person who inflicts the injury, if the injury is of such a nature, or is inflicted under such circumstances, that its infliction is injurious to the public as well as to the person injured.1002

Stephen’s focus on the ‘public interest’ in Coney was in regard to the attempt by the court to

speculate might any form of assault be legal were consent present. According to Stephen,

in cases where life and limb are exposed to no serious danger in the common course of things, I think consent is a defence to a charge of assault, even where

1000 Sir James Fitzjames Stephen, A History of the Criminal Law of England (London: Macmillan & Co. London, 1883), 109. 1001 R v Brown [1993] 2 AII ER 75 at 87-88 per Lord Jauncey. 1002 The Queen v Coney and Others [1882] 8 QBD 535 at 549 per Stephen J.

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considerable force is used, as for instance, in the case of wrestling, single–stick, sparring with gloves, football and the like; but in all cases the question whether consent does or does not take from the application of force to another its illegal character, is a question of degree depending on circumstances.1003

Imposed consent: the consistency of the modern law

In Clarence, consent was found to have transformative powers, solely to preclude the very

possibility of assault. In Clarence a wife’s ‘consent’ meant that assault was incomprehensible,

therefore non-existent. Consent was held to direct the meaning of harm, and its relation to

assault. Yet in Coney the performance of an assault meant that consent was irrelevant. In Coney

the assault comes first and determines that consent is irrelevant. In Clarence consent is

1003 The question of degree depending on circumstance was clarified in Brown: injuries of a transient and ‘trifling nature’ might be permitted, but the circumstances of ‘satisfying sado-masochistic libido’ do not warrant more serious assaults (R v Brown [1992] 2 AII ER 552). Stephen’s focus was on ‘manly diversions’ such as sport. Dangerous, though well-intended ‘manly’ pursuits generally have provided the few examples of what might constitute a lawful ‘consensual assault’. Similarly, ‘rough play’ if intended as ‘a joke’ has been determined to be legal and held not to constitute an assault, apparently no matter what its disastrous consequences might be. In the 1847 manslaughter trial of Bruce it was held that ‘consent’ to joking ‘rough play’ determined the legality of the actions. However the character of valibid consent was not considered in depth. Consent was likened to a lack of resistance, or perhaps to a lack of disapproval. And it seems that a benign intention such as ‘a joke’ may also be inferred as an element essential to determining the non-criminal nature of the activity. Bruce involved a charge of manslaughter against a man who when drunk, had burst into a shop where a ‘young lad’ was sitting and grabbed the young lad, ‘shoved him to the door, and from the door back to the counter….The prisoner then put his arm around his neck and spun him round, and they came together out of the shop; the prisoner ‘kept hold of the [young lad] when they were outside, and kept spinning him round; the latter broke away from him, and….the prisoner reeled out into the road and knocked against a woman who was passing and knocked her down. The prisoner was very drunk and staggered as he walked’. The passing woman died as a result of the impact of the staggering, spinning, drunken defendant. To determine the manslaughter charge, the court had to determine first whether the defendant had been committing a crime at the time of his collision with the woman. For, ‘where the death of one person is caused by the act of another, while the latter is in pursuit of any unlawful object, the person so killing is guilty of manslaughter’. Based on the ‘young lad’s’ testimony it was determined that the ‘rough play’ was consensual, as the young lad had ‘not resisted the prisoner during the transaction’. The lad testified that ‘he thought the prisoner was only playing with him, and was sure that it was intended as a joke throughout’. From the testimony of lack of resistance, the court inferred ‘consent’, providing an uncanny parallel with how testimonies of ‘consent’ in rape cases were viewed in the same period. As noted, prior to the clarification given in Camplin in 1845, non-consent had been predicated on lack of resistance to rape. Until the clarification of Camplin, ‘consent’ was difficult for the courts to understand without reference to resistance. It seems the two concepts of ‘consent’ and ‘lack of resistance’ were used interchangeably in Bruce as well. It was determined in Bruce that ‘there was nothing unlawful in what the prisoner did to the lad, and which led to the death of the woman. Had this treatment of the boy been against the will of the latter, the prisoner would have been committing an assault - an unlawful act – which would have rendered him amenable to the law for any consequences resulting from it; but as everything that was done was with the witness’s consent, there was no assault, and consequently no illegality. It is, in the eye of the law, an accident, and nothing more’ (The Queen v Bruce [1847] 2 Cox CC 263). Bruce suggests that some behaviour that might resemble an assault could be transformed into a lawful act by the presence of consent and a benign intention. Coney suggests that some activities involving force, such as wrestling or football, similarly

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determined first to preclude the criminality of harm, therefore the existence of assault.

However, common to both directions is a disregard for an individual’s experience of consent.

Consent is an imposed, abstract concept in both cases. In Coney a prize fighter is told he cannot choose to fight. In Clarence a woman is told she cannot choose not to have sex, even harmful

sex.

The supple use of consent directs the meaning of assault, particularly given that Coney and

Clarence were decided just six years apart. It could be argued that the obvious difference

concerns the nature of the assaults, in that one involves sex. As noted, the crime of rape did

(and does) involve a constitutive component of consent. This seems to have been the implicit

argument of Fulton: that rape requires, by definition non-consent. However Fulton confused the

issue greatly by stating that ‘assault implies lack of consent’. Clarence’s convictions were not

for sexual crimes, and Fulton was not defending sexual crimes. Yet the convictions were

discussed and assessed in terms of sexual consent. The primary focus of the debates in Clarence

concerned whether or not the fraud of Clarence’s concealment of his disease vitiated his wife’s

consent to sex with him. This was despite the straightforward and recent direction in Coney that

consent is irrelevant to assault.

In Clarence the prejudices surrounding a woman’s experience of harm and assault and law

enabled convictions of GBH and assault to be hijacked in terms of consent to sex, and then

dismissed. This might seem to be a banal observation. For surely sex within marriage is of a

nature different entirely from prize fighting, and should be understood differently by the criminal

law. Leaving aside the mythology of the marital rape exemption and ‘irrevocable consent’, the

fundamental difference in law involves the operation of consent and how it is understood. In the

case of most acceptable ‘forceful’ activities such as boxing, wrestling, sport and so on, one must

establish consent on the part of both parties for the activity to be considered lawful. In the case

may be transformed by consent and a benign, or at least a non-malicious intention. However this was so

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of sex, notably even harmful sex communicating disease, one must establish non-consent for the activity to be deemed unlawful.1004 In the case of sex, harm is not the determining factor in

identifying assault and assault is not the determining factor in identifying legality.

Conclusions: supple consent and the consistency of the public interest

Coney would suggest that the 1880s state was not supremely interested in the rights and preferences of individuals to consent. Coney tells us that personal choice, volition, is immaterial to the criminal law of assault: regardless of our desires to partake of violence, we do not hold such a right. As Justice Cave explained in Coney, assault is unlawful not due to its impact on the individual ‘victim’. Rather assault is a ‘breach of the peace and [therefore] unlawful’.1005 A

breach of the peace is an offence against the public order, or perhaps the state. Hence, for

Justice Cave, ‘the consent of the person struck is immaterial’.1006 In this understanding the

illegal, harmful nature of assault is determined by the law without reference to individual

desires. Conversely, in considering the possibility of lawful assaults the law again favours

notions of the public interest, by isolating ‘manly diversions’ that might benefit the Crown as

exceptional and to be protected.1007

The view upheld in Coney might seem typical of the 1880s state in its disregard for the

individual and in its focus on the sovereign and the public interest. And yet, it was in the

wisdom of 1888 and Clarence that Lord Mustill found authority for his arguments for the

supremacy of consent, privacy and the individual in Brown. How might the judgments of Coney

and Clarence be reconciled? Although Clarence and Coney might seem at odds, the public

only in the case of exceptions. As a general rule, consent is held to be immaterial to assault. 1004 Donovan and Brown notably were not understood as sex but as assaults. 1005 The Queen v Coney and Others [1882] 8 QBD 535 at 539 per Cave J. 1006 Ibid. 1007 R v Brown [1992] 2 AII ER 552 at 559 per Lord Lane. For Bruce, isolating a benign intention is imperative to understanding ‘assaults’ as lawful. The joking nature of the defendant’s behaviour was an important, probably essential, consideration in determining the lawful nature of his conduct. Perhaps as well, ‘rough play’ was viewed in a manner similar to the acceptable ‘manly diversions’ like sport and wrestling and so on. Bruce determines that we are entitled to consent to certain behaviour that otherwise

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interest prevails in both. In considering Clarence and Coney, it is apparent that the role of consent in criminal law is both supple and manipulated, yet the role of personal experience and volition is consistently undermined.

The argument that privileges notions of the public order over individual preferences was criticised when enforced in the case of Brown, as illiberal, patronising and persecutory of individual preferences. Brown has been considered condescending to the notion of an adult’s autonomy, for its disregard for the value of an individual’s consent and private choices. It is not surprising that in the prevalent view of today’s permissive state, Brown has been criticised in its deference to the authority of a case of 1882 that did not concern sex, and which privileges the public interest over the rights and wishes of the individual. From Lord Mustill’s arguments in

Brown it might be thought that Clarence upholds the rights of the individual to consent, in contrast to the invocation of the supremacy of the public good evident in both the majority ruling in Brown and the judgment of Coney. Lord Mustill relied on Clarence, in opposition to

Coney, to argue that an individual’s consent is the important, determining feature of the legality of assault. The judgment of Clarence might then be thought to privilege the individual over the old fashioned ideas about the public interest, and the interests of the state. However, Clarence in fact does privilege the same notion of public interest that was upheld in both Coney and Brown.

Lord Mustill’s use of Clarence involved an invocation of the public interest: the public interest was understood to have been served by the Bench in Clarence by way of its upholding of men’s unencumbered right to sex, the sanctity of men’s family privacy and marital dominion, and the precluding of the right of prostitutes to seek redress for non-contractual obligation by men, that was upheld in the ruling.

In simple terms, the judges in Clarence bought the defence counsel’s argument that it would be dangerous and against the public interest to affirm the convictions for assault. Fulton’s focus

might resemble an assault. But just as in Coney, it is the role of the law or the courts to determine that

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was on the perils of disputing Hale’s irrevocable consent on the grounds of fraud, as this would mean that any fraud might vitiate consent, and that ‘any deceit practised by a person by means of which he obtained a woman’s consent would render such a person guilty of rape’.1008 The

Bench accepted the wisdom of Forrest Fulton that this outcome would be disastrous for men and for the nation, given the importance of men’s access to sex to social stability.

The Bench in Clarence was afraid of disputed consent, allegations brought by prostitutes and other victims of men’s inherently dishonest seduction. Prostituted sex was an important social

‘outlet’ which kept men from rape, masturbation and sodomy, and also separated men’s lusts and common women from the respectable woman who could be left unsullied by men’s sexual needs. Maintaining men’s access to sex, from prostitutes, seduction or the wife, was the object of Clarence, an object motivated by concern for the public interest and therefore the state. The figure of the prostitute haunts Clarence. I turn to her next.

behaviour to which one may consent. 1008 R v Clarence [1888] 22 QBD 23.

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Chapter Eight: What is a Prostitute?

The legislature, by refusing to interfere have tacitly declared the existence of prostitutes to be a necessary evil, the suppression of which would produce alarming and disastrous effects upon the country at large. Bracebridge Hemyng (1865)1009

The Bench in Clarence was haunted by prostitution. That is, in appearing to assess the criminal

harm of the sex for women, the judges were concerned with the potential harm to men of

unscrupulous prostitutes and other dishonourable women, potentially all women. While Justice

Wills did concede that Charles Clarence’s actions were both ‘wicked and cruel enough’,1010 this

acknowledgment did not outweigh his greater concern, the protection of men’s contracting of

sex. For the Victorian patriarchs of the Queen’s Bench, sex was understood to be imperative to

the wellbeing of society, to be mysterious and beyond the proper scope of the criminal law.

Men’s access to sex was understood as more crucial than a woman’s deception or dishonestly

gained ‘consent’. And this right of access to sex for men explicitly concerned access to the

common prostitute.

For Justice Wills, if Clarence’s convictions were upheld, then every man who ‘knowingly gives a piece of bad money to a prostitute to procure her consent to intercourse or who seduces a woman to by representing himself to be what he is not, is guilty of assault, and it seems to me therefore, of rape’.1011 For Wills, legally addressing such guilt was not desirable: it would prove

impractical, due to the magnitude and frequency of the practice of men deceiving women for

sex. Wills assessed the harm of sex obtained by duplicity as minimal, and the risk to men of the

law ‘going wrong’ in its assessment of the offence, as great. Wills warned that the logic of

Clarence’s convictions proved not only distasteful but also too difficult and dangerous for men:

Surely these considerations point to the conclusion that a wide door will be opened to inquiries not of a wholesome kind in which the difficulties in the way

1009 Bracebridge Hemyng, ‘Prostitution in London’ in, Henry Mayhew, London Labour and the London Poor, 4 Volumes (1865) (New York: Angus M Kelly Bookseller, 1967), 212. 1010 R v Clarence [1888] 22 QBD 23 at 34 per Wills J. 1011Ibid at 28, per Wills J.

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of arriving at the truth are often enormous, and in which the danger of going wrong is as great as it is by people in general inadequately appreciated.1012

As I note in Chapter Six, for Fitzjames Stephen, natural vice such as adultery and men’s use of

prostitutes was not the appropriate target of the criminal law. Although the activities themselves

are immoral, the regulation or targeting of men’s extra-marital sex by way of the criminal law

was not appropriate due to the infringement Stephen envisaged on men’s privacy. For Stephen,

the supremacy of men’s privacy was a ‘conclusive reason’ against treating natural vice as a

crime.1013 Stephen dismissed the convictions in Clarence, warning that if sex obtained by fraud

were to be recognised as a crime, then ‘many seductions would be rapes, and so might acts of

prostitution procured by fraud, as for instances by promises not intended to be fulfilled.’1014

The focus on prostitution and ‘seduction’ in Clarence reveals much about the state’s understanding of sex. Historically, rape and prostitution are inextricably entwined in law. Sex has long been understood as a ‘thing’, or a commodity that men require, and therefore that men might purchase or take through seduction, through the marital contract or through violence in the case of rape. In this analysis, consent involves a transaction, by way of a commercial contract, a marital contract or perhaps through the persuasion of seduction or the theft of rape.

This analysis posits the heterosexual man as the subject of sex law, for it is he who is the subject of the transaction with the object of the woman, typically understood as a common prostitute or wife.

The focus on prostitution in Clarence reveals that in a case addressing a woman’s complaints of sexual harm, the heterosexual man is in fact the subject, and protecting his liberty and freedom to obtain sex is the interest of the state. The law’s treatment of prostitution in general, beyond

Clarence, supports this view of the state, as interested to maintain men’s access to women’s

1012Ibid at 32, per Wills J. 1013 Sir James Fitzjames Stephen, Liberty, Equality, Fraternity, 151. 1014 R v Clarence [1888] 22 QBD 23 at 44, per Stephen J.

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bodies. To understand the interest of the state in sex it is important to understand the history of the treatment of prostitution in law, for the model of sex which is upheld by the state, is in fact a model of prostituted sex: that is, sex is understood as a commodity to which men must have liberty and access, for the sake of the nation.

In this chapter I examine the treatment of prostitution by the state, in regard to the Wolfenden

Report and the Street Offences Act 1959. To reveal the genesis of Wolfenden, I note the treatment of prostitution in law in the guise of the judicial question ‘what is a prostitute?’. In tracing this genealogy I determine the state’s interest in prostitution to illustrate that the

Wolfenden approach involves no permissive shift, but is simply a re-configuration of the old. I note the motivation of the state in intervening in the commercial sex contract: an interest in the sustained sexual availability of women to men and a related resistance to interference in (men’s) heterosexual privacy, and a general fear for men who might fall victim to prostitutes, as emphasised in the Wolfenden Report, and in Clarence. I illustrate that despite the myth of a permissive revolution, or break with the past, the state’s treatment and view of prostitution has remained remarkably consistent throughout the 19th and 20th centuries.

I present a social and political artefact of the 1860s, an article on prostitution from Henry

Mayhew’s London Labour and the London Poor, to provide a general picture of one prevalent understanding of the economy of Victorian prostitution. In mapping the genealogy of ‘what is a prostitute’ in law, I deviate from England to include examples from Australia, due to the importance of Australian case law in the evolution of this definition.1015 Again I emphasise the flaws in modern mythology that would characterise the old state as anti-sex.

The consistent motivation of the state in regard to sex is premised on a particular understanding of sexuality, both men’s and women’s. The history of prostitution law reveals a state not

1015 I also briefly note an important case from New Zealand.

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interested in the regulation of sex: the regulation of prostitution has focused consistently on the non-sexual aspects of the trade. The Wolfenden Report signified the 20th century solidification of this view, premised on the inevitable, natural and necessary function of prostitution for men and society. It involved the latest stage of the creation and solidification of the female sexual subject as an object of control: the anachronistic common prostitute, common to all men.

It is sometimes noted that the state’s interest in prostitution is premised in base terms on the logic that ‘men need sex’, therefore prostitution is necessary. Barbara Sullivan observes the

approach of the state to prostitution throughout the 20th century:

For men without other sexual outlets, prostitution was usually considered to be the lesser of two evils….If deprived of easy access to prostitution men were regarded as more likely to rape innocent women and children. This representation of male sexuality as an unstoppable force, as a drive that demanded an outlet, or if blocked, produced significant social consequences, meant that prostitution could continue in the 20th Century to be regarded as both inevitable and necessary.1016

In the 19th century prostitution was also considered necessary to ward off the evils of masturbation, and sodomy that ‘would be felt in every household in the kingdom’, if men’s natural sex drive was not sated by women.1017 These ideas about men’s sexuality are well known. There is little new here. However more important, and much less readily acknowledged is another primary and consistent premise that I have identified in prostitution law: prostitution is natural and inevitable because women are prostitutes by nature. These two premises combine to form the primary, consistent tenet of prostitution law, that prostitution is a natural and inevitable product of heterosexuality. In explaining that the law understands prostitution as natural, I note its assumptions made about men’s and particularly, women’s sexuality. I conclude that the interest of the state in regulating commercial sex is that of sustaining men’s sexual access. This interest has survived (and I would argue, informed) both the ‘repressive crackdown’ of the 1880s and the ‘permissive revolution’ of the 1960s.

1016 Barbara Sullivan, The Politics of Sex, 30.

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This chapter is focused on two main inroads of the state into commercial sex: the creation of the common prostitute, and the evolution throughout the 19th and early 20th century of a judicial

definition of ‘what is a prostitute?’. Each example indicates the primary premise of prostitution

law: a fundamental lack of interest in the sex of prostitution, built on the fiction that prostitution

is inevitable, necessary and natural. The state is not interested in the act of prostituted sex.

Despite what common sense might tell us – that prostitution by definition concerns sex – the

law exhibits no interest in the sexual aspects of prostitution. The criminal law concerning

prostitution has been invoked mainly to punish select individuals for non-sexual activities.

Consistently in different periods in history, only the ancillary ‘offensive’ and profiteering

aspects of the commercial sex industry have been outlawed by the state, such as soliciting for

the purposes of prostitution, living on the earnings of prostitution, and using or allowing the use

of premises for prostitution.1018 The state has little interest in regulating sex. In particular, it has

little interest in impinging on men’s natural ‘right’ to sex with women.

The rights of tenacious men: the underlying premise of prostitution law

Here I want to briefly present a prevalent view of prostitution in the 19th century.1019 In 1851

Henry Mayhew published his detailed study of London Labour and the London Poor. By 1861

Mayhew had enlarged his work to four volumes, covering ‘those that will work, ‘those that cannot work’ and ‘those that will not work’, with the latter comprising prostitutes, thieves, swindlers and beggars.1020 In Mayhew’s analysis, prostitution would appear not to be

understood as ‘work’ (although he does acknowledge its connection to the low wages that ‘the

female industrial classes of this great city receive in return for the most arduous and wearisome

1017 Sir James Fitzjames Stephen, ‘Anti-Respectability’, 290. 1018 David Brown, David Farrier, Sandra Egger, & Luke McNamara Criminal Laws: Materials and Commentary on Criminal Law and Process In New South Wales (Sydney: The Federation Press, 2001), 1062. 1019 Although not a strict ‘artefact’ of the state, the article is rich in detail and provides important insight into a prevalent 19th century view of prostitution. 1020 Henry Mayhew, London Labour and the London Poor, 4 Volumes.

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labour’).1021 Rather, it concerns something other than labour power and an economic transaction. Mayhew’s volume illustrates a prevalent Victorian view of prostitution as natural, inevitable and vital to the wellbeing of the nation.

‘Prostitution in London’ is addressed in the volume in an article by Bracebridge Hemyng.1022 In

its focus on women’s nature, the inevitability of sex and prostitution, and men’s liberty, its

relationship to the ethos of the Wolfenden Report is stark. Hemyng appears to be of the same

orthodox opinion as Stephen, that men’s ‘immoral’ (non-marital) sex is an inevitable

component of social relations. Thus the prostitute is the necessary evil to whom men must have

sexual access. Again, similar to Stephen, Hemyng ties man’s right of sexual access to broader

rights of liberty, as well as to the dangers of denying men unencumbered heterosexual access.

Hemyng explains that prostitution is not illegal because ‘the liberty of the subject is very

jealously guarded in England, and so tenacious are the people of their right and privileges that

the legislature has not dared to infringe them, even for what by many would be considered a just

and meritorious purpose’.1023 However, Hemyng does not have in mind the rights of the

‘tenacious people’, rather he has in mind the rights of ‘tenacious men’.

Hemyng notes the scorn of French authors, who in his opinion had themselves succumbed to immorality, due to the ‘demoralising effects of the French Revolution’. Such authors professed the

profoundest of horror of our social economics….all unite condemning our system of blind and wilful toleration. They do not understand the temper of the nation, which would never allow the state to legislate upon this subject. But nevertheless, we must confess, that the profligacy of the metropolis of England, if not so patent and palpable as that of some continental cities we have had occasion to refer to, is perhaps as deeply rooted, and as impossible to eradicate. The legislature, by refusing to interfere have tacitly declared the existence of prostitutes to be a

1021 Ibid Volume 4, 213. 1022 Bracebridge Hemyng, ‘Prostitution in London’ in Ibid, 210-269. Bracebridge Hemyng is the pseudonym of Samuel Bracebridge Heming, fiction author of the late 19th century. 1023 Ibid, 211.

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necessary evil, the suppression of which would produce alarming and disastrous effects upon the country at large.1024

Hemyng clarifies that the law is ‘careful to punish anything that can be construed into a

misdemeanour or a felony’, such as the riotous public behaviour outlined in the Vagrancy Act

1824.1025 The state of the 1800s did not interfere with men’s heterosexual access, only with women’s unseemly, indecent and raucous displays of its actualisation, just as in the modern

Street Offences Act 1959.

The common prostitute: a natural phenomenon

The archetype of the female subject of law is the heterosexual common prostitute. The

‘common prostitute’ was invented as a ‘legal subject’ in the Vagrants Act 1824 that targeted

‘idle and disorderly persons’ under which ‘every common prostitute wandering in the public streets or public highway, or in any place of public resort, and behaving in a riotous or indecent manner’ was deemed an idle or disorderly person.1026 Vagrancy legislation was aimed at the

growing numbers of ‘rootless and unemployed people’ of England’s early industrial

development who were viewed by the state as a ‘threat to social stability’.1027 Although women who worked as prostitutes had been targeted by the state at least since the reign of Henry VIII, the pathological legal identity of the ‘common prostitute’ was a product of the 1800s. She was a

Georgian creation, but achieved mythical and maligned status by the 1860s amid panic over venereal disease. Despite her Victorian moralism and stigma, her apparent anachronism, the

Wolfenden Committee entrenched the common prostitute in modern law.

In the early 19th century prostitution was dealt with variously, but the underpinning assumption was consistently that of the ‘necessary evil’, both in terms of men’s natural hydraulic sex drive, and in terms of liberty and men’s rights to privacy. Common prostitutes were targeted by the

1024 Ibid, 212. 1025 Ibid. 1026 Helen J Self, Prostitution, Women and the Misuse of the Law, 38. 1027 Ibid.

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state, but only for their independence and itinerancy or for ‘behaving in a riotous or indecent manner’. Their sex for sale was of no concern to the law – it was assumed to be inevitable and to provide a necessary outlet for men’s lust. In the Victorian approach (and as I have already argued, persisting in the modern approach) prostitution is understood as inevitable because of

men’s sexuality. But it is also understood of as inevitable because of certain women’s sexuality.

As indicated in the diagnostic legal slander of the ‘common prostitute’, certain women have

been understood to be prostitutes by nature. Those who ‘would not work’ failed the

respectability test of Fitzjames Stephen: they did not rise to the challenge of respectable

womanhood to uphold the morality of the empire. Prostitutes were seen as naturally unevolved,

even for women;1028 they floundered in their innate moral weakness. They were natural ‘moral

imbeciles’.1029 This had implications for all women, who in their innate weakness were after all,

potential prostitutes.

Despite a focus on labour and the poor, Bracebridge Hemyng understood women’s sexual

immorality not in terms of economics. For Hemyng, women are immoral by nature, victims of the ‘passions’. For Hemyng, prostitution was inevitable in England in particular because in

‘cold climates, as in hot climates, we have shown that the passions are the main agents in producing the class of a woman that we have under consideration, but in temperate zones the animal instinct is less difficult to bridle and seldom leads the female to abandon herself to the other sex’.1030 Thus, in England at least, prostitution was inevitable both for men and women, due to their natures. Prostitution could not be eradicated, due to the nature of heterosexuality, and due to the ‘jealously’ guarded value of men’s rights to sexual liberty and privacy. Hemyng warned that ‘it is a vulgar error, and a popular delusion, that the life of a prostitute is as

1028 Lucy Bland, Banishing the Beast, 57-58. 1029 Ibid, 58. This view informed the British Medical Association’s evidence to the Wolfenden Committee in 1955 that prostitutes possess an ‘innate deviation of temperament which amounts to a perversion of the normal female sexual impulse’ (1955: 51) 1030 Bracebridge Hemyng, ‘Prostitution in London’, 212.

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revolting to herself as it appears to the moralist sternly lamenting over the condition of the fallen’.1031 Women enjoyed the life. It was their nature.

Immorality (or anti-respectability) was also understood to be a particular quality of the working

class, for whom ‘to be unchaste’ is not always a ‘subject of reproach’.1032 Hemyng acted as the

brave anthropologist, transgressing the wild side of London’s East End, to educate his middle

class readers that ‘many a shoeblack, in his uniform and leather apron, who cleans your boots

for a penny at the corner of the streets has his sweetheart’.1033 Hemyng did not contest that

middle class prostitution also flourished, but observed that the raucous, street dwelling common

prostitute was the sensible focus of the state: the ‘metropolitan police do not concern themselves

with the higher classes of prostitutes; indeed it would be impossible, and impertinent as well,

were they to make the attempt’.1034 The impertinence of infringing on middle class and upper

class men’s heterosexual rights was inconceivable for Bracebridge Hemyng.

A necessary evil: prostitution, desire and the creation of the sexual object

The common prostitute was demarcated in statute and in established understanding as a persona,

and was understood to be a necessary evil; necessary in the sense that she was inevitable due to

her nature, and necessary in the sense of providing a ‘safety valve’ for men’s lust. One

important problem of this view for women was what it meant for the value of women’s consent

and sexual agency (subject status) beyond prostitution. Women’s lack of legal subject status in

testifying to rape and sexual assault is historically, intrinsically related to the status of the

prostitute in law. The ‘problem’ of prostituted sex was immorality. Similarly, rape was

understood in terms of mere morality. As I have argued, and as is revealed in the paranoid

debates of the Bench in Clarence, seduction has been confused with rape in the law. When sex

1031 Ibid. 1032 Ibid, 221. 1033 Ibid. 1034 Ibid, 215.

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is understood as premised on a transaction, as in the view of the state, the nature of sex is irrelevant: as long as some form of transaction has taken place, sex is harmless.

The respectability imperative ensured that women who were tainted with men’s immorality, remained so, often regardless of their role in the immoral behaviour. As Hemyng himself observed, the immoral persona of the prostitute was not widely understood to be dependent on her economic dealings. Hemyng wrote: ‘literally every woman who yields to her passions and loses her virtue is a prostitute, but many draw a distinction between those who live by

promiscuous intercourse, and those who confine themselves to one man’.1035 While ‘many’ might draw this distinction, clearly Hemyng and Henry Mayhew did not. The law, however, has consistently disregarded the sex of prostitution. The law is concerned with women’s public independent behaviour in general, more than it is with their sex or sexuality, as evidenced in the

Vagrants Act 1824 and the Street Offences Act 1959.

In the 19th century the discussion of sex in terms of ‘nature’ became increasingly prominent,

particularly after the 1871 publication of Darwin’s The Descent of Man and Selection in

Relation to Sex: Darwin’s work signified the possibility that sex could become a subject of a

‘scientific study distinct from the purely medical – no longer a question of pathology or disease,

but a “natural” phenomenon’.1036 With the advent of Darwinism, the Church began to be rivalled by medicine and natural science as ‘the key self-declared definers of sexuality’.1037

Despite its premise that prostitution is natural, the state has not allowed for free trade. Instead, it has to varying degrees throughout history, maligned, marginalised and threatened women, and periodically intervened in the ‘trade’ to promote the myth that the criminal law is actually concerned with commercial sex. The state historically has punished women for acting in their

1035 Bracebridge Hemyng, ‘Prostitution in London’, 212. 1036 See Porter Roy and Lesley Hall, The Facts of Life, 155. 1037 Bland Lucy Banishing the Beast, 48.

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‘nature’, as it has defined their ‘nature’. It has defined prostitution as natural and inevitable, yet still so offensive as to warrant women’s punishment. The naturally occurring persona of the common prostitute informs a state that is not interested in prohibiting commercial sex.

Most statutes covering prostitution have involved regulation of the ‘industry’, and penalties for profiteering in the third person (particularly for men). While soliciting, loitering and vagrancy statutes have been invoked consistently to penalise women for advertising and facilitating their trade, the sex of prostitution has not been considered a criminal offence. The commercial activities surrounding the essential sex act have been the primary target of the criminal law. The act of sex itself is all but immaterial to the law. As Jeffrey Weeks observes, ‘the widespread tolerance of prostitution was reflected in the absence of any serious legislative attack on the problem until the 1860s’ and the passing of the Contagious Diseases Acts.1038 And even this

‘attack’ is of dubious motivation. Indeed, these most notorious of all statutory interventions into

the prostitution market can be viewed with little effort as a state-sponsored, safe sexual access

campaign for the Queen’s army. That is, little to do at all with deterrence of the market.

Contagious diseases legislation in the 19th century: prostitution as essential to the Empire

Much has been written about the English Contagious Diseases Acts of the late 19th Century, and

their subsequent repeal.1039 I do not discuss them at length in this thesis. However they are an important consideration for my purposes in illustrating, along with the persona of the common prostitute, the significance granted men’s free access to sex in the legal consideration of

1038 Jeffrey Weeks, Sex, Politics and Society 2nd edition, 85. 1039 See in particular Paul McHugh, Prostitution and Victorian Social Reform (London: Croom Helm,1980), Jeffrey Weeks Sex, Politics and Society: The Regulation of Sexuality Since 1800 1981 & 1989, Judith R Walkowitz, Prostitution and Victorian Society: Women, Class and the State, Mary Spongberg, Feminising Venereal Disease: The Body of the Prostitute in Nineteenth Century Medical Discourse (London: MacMillan Press, 1997), Jane Shordan and Ingrid Sharp (eds), Josephine Butler and the Prostitution Campaigns: Diseases of the Body Politic (New York: Routledge Curzon, 2002). For an Australian perspective see, Diane Kirkby (ed), Sex Power and Justice: Historical Perspectives on Law in Australia (Melbourne: Oxford University Press, 1995).

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prostitution. In the contradictory discourse that is prostitution law, the theme of men’s inevitable need for sex is paramount.

The various Contagious Diseases Acts were enacted in designated garrison and naval towns across England from 1864 until 1886, when Josephine Butler had success in her large-scale public campaigns for their repeal. The Acts provided for the non-consensual examination of common prostitutes by designated doctors with the newly developed speculum. Women identified to be infected with venereal disease were detained in lock hospitals until ‘clean’.

Notoriously the 1864 English Act was introduced ‘in a thin house, late at night, a government measure with a title deceptively similar to an act dealing with veterinary rather than venereal

disease’.1040 As Kay Saunders describes, it was initially debated at an almost empty sitting of

the House of Commons by members who ‘mistakenly thought they were debating the further

control of noxious diseases in cattle’.1041

The 1864 Act was aimed at the control both of gonorrhoea and syphilis, despite the lack of any

effective scientific diagnosis for gonorrhoea before 1879, and well before the development of a

blood test for syphilis as late as 1906.1042 The legislation was developed in response to high rates of venereal disease among soldiers. However, Barbara Sullivan contends that there is evidence that the incidence of venereal disease in the armed forces was actually declining after

1860.1043 Nevertheless, women were viewed as the source of this male problem and thus were subject to regulation and scrutiny.1044

1040 Jeffrey Weeks, Sex, Politics and Society 2nd Edition, 37. 1041 Kay Saunders in Kirkby (ed), Sex Power and Justice, 6. Allegedly Queen Victoria was among those who believed that the Act concerned cattle (Porter & Hall: 1995: 139). 1042 Paul McHugh, Prostitution and Victorian Social Reform, 259. 1043 Barbara Sullivan, The Politics of Sex, 19. 1044 Periodic inspection of soldiers was abolished in 1859 due to its effect on morale (McHugh: 1980: 35).

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For Jeffrey Weeks, the insistence on high military morale was tied to a deep regal fear that

Britain would follow Rome into Imperial decline.1045 Less dramatic, Paul McHugh claims the

object of the Acts was to protect members of the armed forces from the consequences of

venereal disease, and the government from the cost of treatment and loss of manpower.1046 It is apparent that the primary concern was men’s (soldiers’) contraction of venereal disease and that this concern was based on an unquestioned acceptance of men’s use of prostituted women. As ordinary servicemen were not permitted to marry without permission of the commanding officer, access to prostitutes was seen as a necessity.1047 It was not until World War I that condom distribution became the preferred tactic for combating the spread of venereal disease.1048

The Acts were criticised both by men and women for ‘giving the sexual double standard the force of law’.1049 Florence Nightingale famously opposed them for sanctioning ‘vice’.1050 John

Simon, ‘leading sanitarian of the day’, was ‘extremely dubious about them and strongly resisted their extension to civilian areas’.1051 The rationale behind the legislation was that prostitutes infected men with venereal disease. Therefore infected prostitutes must be detained until

‘clean’. And thus was born perhaps Britain’s first safe-sex campaign, based on the principle of men’s right to use ‘clean’ prostitutes.1052 Women were considered akin to the source or cause of

1045 Jeffrey Weeks, Sex, Politics and Society 2nd Edition, 20. 1046 Paul McHugh, Prostitution and Victorian Social Reform, 16. 1047 Helen Self, Prostitution Women and the Misuse of the Law, 40. 1048 Mary Fissell ‘Speculations on the Speculum’ (2000) Women’s Health in Primary Care, 3, 4 April, 298. 1049 Roy Porter and Lesley Hall, The Facts of Life, 137. 1050 Judith Walkowitz, Prostitution and Victorian Society, 1. 1051 Roy Porter and Lesley Hall, The Facts of Life, 137. John Stuart Mill opposed the Acts and wrote to William Malleson that he would be ‘extremely rejoiced if they could be repealed: since not only do I reject them altogether on principle but I think that in the long run those measures are likely rather to increase than diminish the evil they are intended to attack. Moreover I fully agree with you in thinking that opposition to these Acts is more particularly incumbent on the defenders of the interests of working men, because working women are likely to be the greatest sufferers of this system of legislation’ (in Minkea & Lindley: 1972: 1688). 1052 As Kay Saunders notes, women ‘were the targets of surveillance, harassment and incarceration. For at no time could medical practitioners and politicians, despite their misgivings about the ineffectiveness of a partial system of identification and compulsory treatment, challenge the collective privileges of men for unencumbered heterosexual indulgence’ (Kirkby: 1995: 18).

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men’s disease. Prostitutes in particular were seen as the ‘potential source both of physical and moral contagion for middle-class men’.1053 Prostitutes not only were ‘the most visible purveyors

of illicit intercourse, they also appeared to be the source of the disease. Yet how women

contracted the diseases was not discussed.1054

The fear of diseased prostitutes was based on an unquestioned acceptance of men’s large-scale commercial use of women. In an odd contradiction, prostitution came to be known at this time as the ‘great social evil’, with venereal disease demurely coined ‘social disease’.1055 In fact, the terms came to be used interchangeably. Prostitutes were seen as both ‘physically and metaphysically responsible for the spread of venereal disease’.1056 Early ‘social investigators’ had identified prostitution as an ‘intolerable evil that threatened the sanctity of the family as well as the social order’.1057 Yet access to ‘clean’ prostitutes was deemed the appropriate

remedy for this evil. The irony is inescapable that the great social evil was facilitated and

legitimised by public health promotion.

Prostitution was not simply an affront to morality but a ‘vital aspect of the social economy as

well’.1058 It was accepted that prostitution was of such magnitude that unregulated, it threatened the public health, and that venereal disease was indeed a ‘social’ problem. Yet prostitution was contradictorily maintained to be of evil character. Men’s natural urge for ‘sexual satisfaction’, as McHugh puts it, was accepted as inevitable yet still acknowledged as involved in some

1053 Leonore Davidoff, ‘Class and Gender in Victorian England’ in Judith L Newton, Mary P Ryan & Judith R Walkowitz, (eds), Sex and Class in Women’s History (London: Routledge & Keegan, 1983), 19. 1054 The primary premise of the legislation, according to Paul McHugh, was that ‘women but not men were responsible for the spread of venereal disease and that while men would be degraded if subject to physical examination, the women who satisfied male sexual urges were already so degraded that further indignities scarcely mattered. Protection of males was supposed to be assured by inspection of females’ (1980:17-18. My Emphasis). 1055 Jeffrey Weeks, Sex Politics and Society 2nd Edition, 85. 1056 Mary Spongberg, Feminising Venereal Disease, 45. 1057 Judith Walkowitz, Prostitution and Victorian Society, 33. 1058 , 32.

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process of evil.1059 The greater threats of male sodomy and masturbation (or ‘self abuse’) should

men not be ‘satisfied’, outweighed concerns over men’s ‘promiscuity’ with prostitutes.1060

Woman as sewer: contagion and filth

The metaphor of the sewer is most apt. According to Leonore Davidoff, ‘defenders of prostitution saw it as a necessary institution which acted as a giant sewer, draining away the distasteful but inevitable waste products of male lustfulness, leaving the middle class household and middle class ladies pure and unsullied.’1061 Mary Spongberg points to this metaphor as well, claiming that, ‘prostitutes were to be treated as sexual canals used to drain the seminal excesses of male desire. The task of public hygienists was to sanitise these sewers so as to promote their cleanliness and efficiency’.1062 This was all premised of course on an unflagging acceptance of the inevitability of men’s sexual need (or the perceived need for satisfaction of sexual urges, as

McHugh prefers). The basis for this ‘natural’ occurrence goes routinely unexplained.

Jeffrey Weeks writes of an ‘essentialist’ view of sexuality that informs analyses such as those exhibited in the Contagious Diseases rationale. He maintains that such a view conceptualises sex as

an overpowering force in the individual that shapes not only the personal but the social life as well. It is seen as a driving, instinctual force, whose characteristics are built into the biology of the human animal, which shapes human institutions and whose will must force its way out, either in the form of direct sexual expression or, if blocked, in the form of perversion or neuroses.1063

1059 Paul McHugh, Prostitution and Victorian Social Reform, 17-18. 1060 In 1857 William Acton warned of the perils of masturbation: ‘Indulgence is fatal….The pale complexion the emaciated form the slouching gait the clammy palm of the glassy eye and averted gaze indicate the lunatic victim to this vice’ (in Chandos: 1984: 291). 1061 Leonore Davidoff, ‘Class and Gender in Victorian England’, 19. 1062 Mary Spongberg, Feminising Venereal Disease, 37. The sewer metaphor can be traced at least to a 13th century glossator of St Augustine, who explained that ‘the prostitute in society is like the sewer in the palace. If you take away the sewer, the whole palace will be contaminated’ (Richards: 1991: 118). 1063 Jeffrey Weeks. Sex, Politics and Society 2nd Edition, 2.

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For Weeks, this ‘drive’ at heart is a male drive, and is also ‘firmly heterosexual’.1064 For Justice

Wills in Clarence, sex was mysterious and its regulation, if not impossible, was fraught with

difficulties.1065 Such descriptions are closely reminiscent of a neo-Freudian ‘hydraulic’ model of male sexuality that assumed a ‘powerful natural instinct which pressed against the bonds of social control’.1066 Within this understanding Victorian sexuality, particularly male sexuality,

became the ‘focus of a more generalised fear of disorder and of a continuing battle to tame

natural forces’.1067 Sex, particularly prostituted sex, was a matter of self-discipline.1068

In the state’s contradictory creation of the inevitability of prostitution, both male access and restraint are elevated in the modern analysis. As Catharine MacKinnon notes, ‘liberty for men is often construed in sexual terms and includes liberal access to women, including prostituted ones’.1069 Yet personal sexual restraint was also, paradoxically, valued in men in the 1860s.1070 It was respectable men’s duty to rise above their base nature (though still maintain their god-given right of sexual access). The prostitute, especially the diseased prostitute, became the great social evil to whom modern men at least must have safe sexual access, should they flounder and succumb to their base natural instincts. Weeks draws on the analysis of Michel Foucault to argue that there is a contradiction inherent in the dominant sexual ethos of the Victorian era.

Weeks claims in florid language that, ‘sex was publicly, indeed ostentatiously denied, only to return repressed to flourish in the fertile underground, yet simultaneously and apparently

paradoxically it was during the 19th Century that the debate about sexuality exploded’.1071

1064 Ibid , 3. 1065 R v Clarence [1888] 22 QBD 23 at 32-33, per Wills J. 1066 Sheila Jeffreys, The Idea of Prostitution,199. 1067 Leonore Davidoff, ‘Class and Gender in Victorian England’, 20. 1068 Roy Porter and Lesley Hall, The Facts of Life, 127. 1069 Catharine A MacKinnon, ‘Prostitution and Civil Rights’ (1993) Michigan Journal of Gender and Law, Vol 1, 14. 1070 Leonore Davidoff, ‘Class and Gender in Victorian England’, 20-21. 1071 Jeffrey Weeks, Sex, Politics and Society 2nd edition, 19.

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In his emphasis on denial, Weeks persists with the myth of an anti-sex (or sexually ignorant) state. However it is apparent that sex was not denied so ostentatiously by the state, especially given the prevailing discourse of the inevitable, natural (if distastefully primitive), insatiable male sex drive. In fact I identify in the modern medical, disease conscious approach of the state to prostitution, the affirmation and creation of an unhalting acceptance of large-scale prostituted sexual behaviour, premised ‘scientifically’ on ‘naturalness’. Porter and Hall contest that ‘far from being an era of silence, a matter swept beneath the carpet under the probably apocryphal pantalooned piano legs, sex was a recurrent topic of debate during the Victorian era….The dangerousness of sex was the unavoidable theme, though differences might appear concerning where, precisely, the danger lay’.1072 Weeks himself also acknowledges that ‘far from being

simply denied in the 19th Century, sex acquires a peculiar significance in structuring ideology and social and political practices and in shaping individual responses’.1073 He notes (another) contradiction, this time in regard to female sexuality. He argues that female sexuality was seen as ‘more problematic in Victorian ideology than was male’. And a double standard of morality existed, relying on

this separation between the public and the private. The private was the nest of domestic virtues: the public was the arena of prostitution, of vice on the streets. So as the struggle against the double standard developed, particularly amongst social purity crusades from the 1860s onwards, one of the prime targets in trying to establish a single standard of morality (the morality essentially of the chaste woman) was the drive against public manifestation of vice.1074

If, as is likely, autonomous sexual agency and desire on the part of women was generally denied, their most base sexual nature (that of the receptacle and provocateur of male desire) seems embedded in Victorian law. As I have argued, the discussion of the Bench in Clarence in

the same period as Weeks’s sexual annus mirabilis, reveal a general obsession of the state with

1072 Roy Porter and Lesley Hall, The Facts of Life, 153. 1073 Jeffrey Weeks, Sex, Politics and Society 2nd edition, 21. 1074 Ibid, 81. The nature and role of female sexuality in this period is unclear. Weeks claims it to have been ‘problematic’, and he suggests that ‘a denial of female sexuality is often seen as the most characteristic manifestation of Victorian prudery and hypocrisy’ (1989: 40). Yet obviously the converse of the inevitability of male heterosexual desire involves the sexualisation of women.

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protecting sex. Women were cast as pure sex, or merely sex, the primitive trap of which men must be wary. Far from a denial of female sexuality, I identify a reduction of women to their

(imposed?) sexuality in the Victorian state’s approach to prostitution. And the Contagious

Diseases Acts prove positive. As Mary Spongberg argues, in the Victorian period

fear of venereal disease had become the way in which men articulated the anxieties caused by prostitution. It opened the debate on prostitution, making it a health problem. It allowed an expression of the idea that prostitutes were a necessity. On one level it left the notion of women as innately pure and untainted by making the prostitute pathological. But on another level it meant that all women were tainted because of the connection between venereal disease and femininity.1075

Although repealed after high-profile public protests and feminist campaigns, the Contagious

Diseases Acts embedded the legacy of the common prostitute in statute. She appeared in the

Criminal Law Amendment Act 1885.1076 The repeal campaigns argued against the inevitability of prostitution, and for men’s ‘control’ of lust. However, despite the repeal of the acts, and lip- service paid to ‘the idea of male continence’, men’s need for regular (hetero)sexual outlet was understood as a matter of health.1077 And, in particular, the working class was understood as lacking in self-discipline, therefore permissive and disposed to prostituted sex.1078 In the state’s contradictory creation of the inevitability of prostitution, both male access and restraint are elevated in the modern analysis.1079 And so, when brothels were targeted by the Criminal Law

Amendment Act 1885 in the face of ‘white slavery’ scandals, women, pimps and procurers were prosecuted while male clients went ignored by the state.1080

What is a prostitute?: the offer of sex

Despite its incredulous approach to prohibition, the state has repeatedly gone to great lengths to legislate around the act of commercial sex, to the extent of invoking resources to fund the lock

1075 Mary Spongberg, Feminising Venereal Disease, 47. 1076 An Act to Make Further Provisions for the Protection of Women and Girls, the Suppression of Brothels, and other Purposes (Criminal Law Amendment Act) 1885. 1077 Lucy Bland, Banishing the Beast, 55. 1078 Porter Roy and Lesley Hall, The Facts of Life, 127. 1079 Leonore Davidoff, ‘Class and Gender in Victorian England’, 20-21.

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hospitals of the 19th century and the Wolfenden Committee of 1954 as well as the enforcement

of its legislative recommendations. However, despite the mobilisation of resources, state

intervention has always proceeded without a coherent understanding of the state’s interest and

intention. Indeed it took until 1993 and the case of McFarlane before the state had even

identified ‘what is a prostitute?’.1081 The House of Lords found the question relevant in 1993

when Lord Taylor noted ‘surprisingly’ it had not been the ‘subject of judicial decision with any

finality’ before.1082 In the three years of deliberations of the Wolfenden Committee the simple question of ‘what is a prostitute?’ seems not to have been addressed. The belief propagated by the Committee that certain women are prostitutes by nature probably rendered the question redundant.

1080 Lucy Bland, Banishing the Beast, 101-102. 1081This question was only prompted by the scrutiny and punishment of that abhorred and sought after creature, he who lives on the earnings. The unfortunate man in question was Eric McFarlane. On 16 December 1991 Eric McFarlane was convicted in the Crown Court at Knightsbridge of living on the earnings of prostitution. He was sentenced to four months imprisonment and appealed his conviction based on a point of law as to the meaning of ‘prostitution’. McFarlane lived ‘as man and wife’ with Miss Josephs who on the judge’s ruling, was a prostitute. The couple had lived together for eleven years, five of which involved Miss Josephs’s ‘association’ with the sex industry. McFarlane was observed over a period of time driving Miss Josephs to her various places of soliciting and receiving something from her that she ‘kept in her shoe’. During this period Miss Josephs twice had the misfortune to offer sex to police officers for cash. Presumably the officers were undercover and according to Lord Taylor her offers, of course, were refused. Eric McFarlane claimed innocence: he claimed he didn’t do it. More accurately, he claimed that she didn’t do it. Miss Josephs testified that she was a clipper, as opposed to a ‘hooker’, as Lord Taylor explained. A clipper is a ‘woman who offers sexual services for reward and pockets the reward in advance never intending to provide the service’. Miss Josephs’s foray into the sex industry involved her working as a clipper four or five nights a month, with the assistance of McFarlane. It was argued first that Eric McFarlane was ignorant of Miss Josephs’s trade as he believed she worked as a coat attendant, and second that he was not guilty of living on the earnings of prostitution: Miss Josephs was not a prostitute because she did not have sex with the men from whom she solicited money. However for the trial judge, Miss Josephs certainly was a prostitute. He directed the jury, ‘there are prostitutes who are honest and prostitutes who are dishonest. Miss Josephs tells you that she is a dishonest prostitute. But she is a prostitute’. In McFarlane it had to be determined whether Miss Josephs’s intention was relevant to the crime of prostitution. The judges in McFarlane were lost. They turned to Blackstone, textbooks and the dictionary for answers and eventually decided that the act of prostitution did not entail lewd or physical activities. It entailed the offer. The trial judge explained to the jury, ‘she has told you she is not a prostitute, she is a clipper. But, a prostitute is a person who offers her body for lewdness for reward. Put in slightly more “with it” words….she “offers sexual services”. I am bound to say that I prefer the directness of the old Anglo-Saxon, but there it is. Miss Josephs said, “Yes I do offer sexual services, but I do not mean to make that offer good”. And she suggests to you for that reason she is not a prostitute. But, members of the jury, she has made the offer. It is at that point that she is a prostitute. The fact that the offer is bogus, rather than genuine, if it was, is neither here nor there’. It was ruled that ‘the crucial feature in defining prostitution was the making of an offer of sexual service for reward’. The act of sex or any form of ‘lewdness’ was decreed irrelevant. The crime lay in the offer (R v McFarlane [1994] 2 WLR 494). Thus The Times was able to declare that prostitution had been ‘judicially defined for first time’ and Eric McFarlane remained convicted of living on the earnings of prostitution (27 December 1993). 1082 R v McFarlane [1994] 2 WLR 494 at 495 per Lord Taylor.

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Here in this section I focus on case law to explain the genesis of Wolfenden in the early 20th century. Case law reveals a distinct lack of interest in sex itself, in the regulation of prostitution: a lack of state interest that informed the Wolfenden Committee that sex is not the problem of prostitution. From the early 1900s cases appeared before the courts that led to the development of an understanding of what is the state’s interest in prostitution. Notably, most of these cases concerned profiteering and living on the earnings of prostitution.1083 Prior to McFarlane there exists almost a century of evolution of a definition of prostitution. It is a confused history. It appears the state first decreed prostitution legally problematic, and then only when called upon has it hesitantly developed a definition outward from this presumption. The definitions of what characterises a prostitute (or common prostitute) and what constitutes prostitution appear to follow the a priori canon that prostitution in essence is a criminal offence, despite the affirmation of its inevitable, timeless and necessary nature. The history stems most notably from the early 20th century.1084

Skinner: the commercial importance of prostitution

Here I briefly illustrate that one myth other than the anti-sex Victorian state, is that of state pre- occupation with sex. However, the state in regard to prostitution has not shown interest in sex itself. In 1913 in Skinner, the High Court of Australia considered the meaning of ‘a common prostitute’. Skinner concerned the appeal of a carnal knowledge conviction. The identity

‘common prostitute’ featured in a defence for carnally knowing a girl over the age of ten years

(yet under the age of sixteen). It was a New South Wales statutory defence to carnal knowledge

1083 See in particular R v Silver and Others [1956] 1 AII ER 716, R v Thomas [1957] 2 AII ER 181, Shaw v DPP [1962] AC 220 (HL), R v Webb [1964] 1 QB 357, R v Robinson [1978] 1 NZLR 708, Re Applications of Shephard [1983] NSWLR 97, R v Morris-Lowe [1985] 1 AII ER 400, Sibuse PTY LTD v Shaw, [1988] NSWLR 98, R v McFarlane [1994] 2 WLR 494. 1084 Singleton v Ellison [1895] 1 QB 607, involved the charge of ‘keeping a brothel’, contrary to the Criminal Law Amendment Act 1885.This was an important case, discerning what constitutes a brothel, but it did not involve discussion of the nature of prostitution per se.

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that the girl was a common prostitute (as long as she was over the age of 14).1085 The logic

seems to have been that young ‘prostitutes’ warranted less protection than did young chaste

girls. As well, grown men were perceived to require protection from seduction by wily young

professionals. In an odd contradiction, the girls deemed to be in need of the greatest ‘protection’

from male sexual advances were those who were deemed not to associate with or act as

common prostitutes. The theme was typical of the times. Kim Stevenson notes a similar

sentiment apparent in the Offences Against the Person Act 1861. According to Stevenson,

the 1861 Act also failed to protect the morality of young girls in that it was not deemed necessary to raise the age of consent from 12 years, first established in the Act of 1576. Sections 50 and 51 basically reiterate the 1828 provisions that carnal knowledge with a girl under 10 remains a felony, and between 10 and 12 a misdemeanour.

The Act therefore maintained the position that it was no offence to have sexual intercourse with a girl under 12 who “freely consented”, however ignorant of the carnal connection she may be….Where a girl had been sexually abused it was often regarded as self-evident that she had already been corrupted, relieving the defendant of any criminal responsibility.1086

In effect, in NSW in 1910 a man could not have sex with a girl under 16 unless he paid her.

Herbert Skinner chose the ‘common prostitute’ defence against his charge of carnal knowledge and in appeal of his conviction and sentence of seven years. According to Justice Pring in the

Supreme Court, the carnal knowledge offence of the NSW Crimes Act was ‘intended to protect girls of vicious sexual tendencies against themselves’.1087 Yet it also provided an escape clause for men by allowing the sexual use of common prostitutes over the age of 14. Apparently such girls were beyond protection, or unworthy of protection from their own ‘vicious sexual tendencies’. In effect, the clause provided for male sexual access to young women (alas, not for

Herbert Skinner whose appeal failed). This provision was particularly pertinent in NSW in

1913, as the age of consent for girls had only recently been raised from 14 to 16 in 1910. And as

Jeffrey Weeks notes, the age of consent debates across the way in Britain had revealed peculiar, sometimes explicit male paranoia. According to Weeks, the English parliamentary debates over

1085 Within the meaning of Section 2 of the Crimes (Girls’ Protection) Act 1910. 1086 Kim Stevenson, ‘Observations on the Law Relating to Sexual Offences’.

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the Criminal Law Amendment Act 1885 to raise the age of consent for girls from 12 to 16 were influenced by concern for men’s access to prostitutes.1088

The Criminal Law Amendment Act 1885: aimed not at sex?

Most legendary, the 1885 Act was invoked in response to a ‘white slave trade’ of mythical proportions reportedly luring young British women into a life of sexual trafficking. Thus scandals concerning child prostitution and abduction of British girls into foreign brothels are usually understood as the prime motivation behind the Act.1089 The campaign is supposedly

idealised in the passage of the 1885 Act, but the motivation behind the legislation appears as

spurious as well. As I have emphasised, the 1885 Act is typically elevated in histories of this

period as ‘proof’ of the Victorian assault on sex. Such characterisations of the Act are

imperative to modern mythologies of 20th century progress away from the ‘annus mirabilis’ of

sexual politics that supposedly was 1885.1090

1087 R v Skinner [1913] 16 CLR 338. 1088 Jeffrey Weeks, Sex, Politics and Society 2nd edition, 88. 1089 Kim Stevenson, ‘Observations on the Law Relating to Sexual Offences’. According to Wendy Chapkis, ‘one of the most widely read exposes of sexual trafficking appeared in 1885 when a British journalist, WT Stead, described his purchase of a young London girl from her mother, purportedly for use in Parisian prostitution. Public response was overwhelming and included a demonstration of more than 200 000 people in London, demanding among other things, legislation to raise the age of consent (1997: 41). There is debate over the ‘truth’ behind the white slave scandal. Nickie Roberts considers it ‘Victorian fantasy’ (1992: 253) and Chapkis refers to it as enigmatic and nebulous. Chapkis claims historical records suggest that ‘most British prostitutes were not children sold into the trade but rather young women who consciously engaged in prostitution for economic reasons’ (1997: 42). According to Chapkis, the ‘traffic’ was mostly consensual and in direct response to the burgeoning capitalist economy. She maintains that, ‘while far more women were “trafficked” out of the home by the forces of industrial capitalism than sexual slave traders, prostitution served as a convenient symbol for anxiety over women’s entry into industry’ (1997: 44). Or as Nickie Roberts suggests, prostitutes were in fact migrating for work on their own steam (1992: 253). As noted, Roberts targets ‘reformers’ who lobbied for the 1885 Act as misinformed, having ‘based their evidence for the “white slave trade” on the actual international migration of whores, which had begun to be a sizeable phenomenon during the latter part of the century’ (253). As a result, she claims, parliament passed the Amendment Act which ‘raised the age of consent to 16, gave the police extensive powers against procurers and brothel-keepers and incidentally outlawed male homosexuality’ (257). Roberts credits the Act and its supporters for a ‘new wave of repression’ in the aftermath of which ‘nearly every major city in Britain swung into action, closing down lodging- houses and brothels, and prosecuting whores when they subsequently took to the streets’ (257). The campaign began in London in 1875 through the work of Josephine Butler, and was accelerated in 1879 by ‘AS Dyer’s well-publicised discovery of an English girl, confined against her will in a licensed house of prostitution in Brussels’ (Roberts: 1992: 257). 1090 Jeffrey Weeks, Sex, Politics and Society 2nd Edition, 87.

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The Act was exhaustively entitled An Act to Make Further Provisions for the Protection of

Women and Girls, the Suppression of Brothels, and other Purposes. It provided for the suppression of brothels by making the landlord, tenant, lessee or occupier liable to prosecution if she or he knowingly harboured prostitutes or allowed any part of the property to be used for the purpose of prostitution.1091 Common descriptions of the 1885 Act focus on its prohibitive

capacity and character. However, rarely noted in these descriptions is the implicit subject status

of the heterosexual male whose liberty is maintained and protected in the supposed assault on

sex by the state. Although brothels were targeted and closed, heterosexual men were not

targeted. In fact, sex was not targeted. Rather, the commercial institutions of brothels were

targeted. The Criminal Law Amendment Act does not suggest that prostitution itself might be

targeted or curtailed. It further entrenches the ‘natural’ persona of the common prostitute in law,

as though she inevitably exists.

Helen Self accepts that the motivating concern of the Act’s sponsors was ‘the protection of

innocent white women and children from abduction, transportation and abduction,

transportation and detention for the purpose of prostitution in foreign brothels’.1092 However

Kim Stevenson identifies a different, more oblique motivation. For Stevenson, the driving force

behind the Act was ‘the perceived need to protect men from immoral girls and women, rather

than any primary desire to protect vulnerable females from male sexual violence’.1093 Stevenson

notes a disturbing fear of ‘wholesale extortion’ by ‘girls of bad character’ that influenced

parliamentary debates on the Act.1094

In discussing the legislation and its passage through parliament, Jeffrey Weeks emphasises the

‘social purity’ movement and its influential pressure to pass the Act, while Kim Stevenson

focuses more on parliament’s perceived need to protect men from ‘feminine wiles’ (particularly

1091 Helen Self, Prostitution, Women and the Misuse of the Law, 43. 1092 Ibid. 1093 Kim Stevenson, ‘Observations on the Law Relating to Sexual Offences’.

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unscrupulous prostitutes). Stevenson states the new Act generated considerable parliamentary debate over the age of consent but that this was

mainly limited to the context of prostitution. Public concern focused on the problem of “immoral” girls corrupting young men and leading them astray. Lengthy debates considered the need to protect men from such feminine wiles, but there was virtually no significant discussion of the problem caused by men sexually violating women and how that may be addressed.1095

In practice, the Act was a ‘partial measure’ to address exploitation.1096 It did not cover incest. It had a three month statute of limitations, and in regard to the age of consent it incorporated a provision that enabled a man to escape prosecution by swearing that he believed the girl in question was over the age of 16 at the time of the offence.1097 Jeffrey Weeks does acknowledge

Stevenson’s emphasis, that there was overt parliamentary concern over the legislation’s ramifications for men, for whom access to prostitution seemed a birth right. According to

Weeks, ‘for many upper-class men’, prostitution appeared both necessary and inevitable.1098

The objections in parliament to raising the age of consent ‘often arose from fear that either they or their sons might be threatened by the new legislation’.1099

The Labouchere Amendment: aimed not at sex?

However Weeks characterises the 1885 Act as the product of misguided social purity. The Act

also included the Labouchere Amendment, ‘quietly inserted into’ the 1885 bill.1100 According to

Lord Brabazon of Tara in the House of Lords in 1957

right at the end Mr Labouchere added a clause making indecent acts between males in public and in private a criminal offence. It was never even debated; it was passed without debate. It shows the weakness of another place [the House of Commons] that nobody got up to protest because they would have been accused immediately in their constituencies of being in favour of homosexual acts.1101

1094 Ibid. 1095 Ibid. 1096 Helen Self, Prostitution, Women and the Misuse of the Law, 43. 1097 Ibid, 43-44. 1098 Jeffrey Weeks, Sex, Politics and Society 2nd edition, 88. 1099 Ibid. As Judith Walkowitz observes, ‘a casual acceptance of male sexual licence was traditional among the British upper classes and continued to be upheld by aristocratic “reprobates” in parliamentary debates’ (1980: 3). 1100 Kim Stevenson, ‘Observations on the Law Relating to Sexual Offences’. 1101 Lord Brabazon of Tara, House of Lords, Hansard, 4 December 1957, 763.

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The Labouchere Amendment is as mythical as Wolfenden. Theories abound as to why in 1885 men’s gross indecency was outlawed. Oscar Wilde’s 1895 trials under the Act have brought celebrity to the Amendment, with Wilde having becoming the poster-boy for the sexual

oppression of 1885 and Labouchere. Supposedly Henry Labouchere was persuaded to draft the amendment by Social Purity campaigner William Thomas Stead, who sent the MP a report on male prostitution in 1885. WT Stead was the famed editor of the Pall Mall Gazette who is credited with exposing (alternatively, exaggerating), the ‘White Slave Trade’ of the 1880s, along with child prostitution scandals in his ‘Maiden Tribute of Babylon’ newspaper articles.

Stead viewed himself as ‘the people’s preacher’, whose responsibility it was to ‘attack the devil’ through his editorial position by exposing the seedy side of London’s rapid growth and industrialization.1102 Michael S Foldy argues that the intention of Labouchere for the legislation was the protection of young boys from indecent assault.1103 However as Louise Jackson notes,

the motivation of the MP might not have been straightforward. She writes:

historians have suggested a whole string of motives for Henry Labouchere’s amendment, including a desire to sabotage the whole Criminal Law Amendment Bill, which he thought “absurd”, by introducing a clause at a late key stage that he believed MPs would never agree to. Five Years after its enactment Labouchere offered another explanation for his motives, citing the influence of a report on male prostitution which was sent to him in 1885 by newspaper editor WT Stead.

He claimed that, having read the report, he drew up the amendment in an attempt to facilitate the securing of evidence in such cases. Stead’s alleged report on male prostitution has proved untraceable and FB Smith has persuasively argued that it must have been a figment of Labouchere’s imagination, inspired by professional rivalry as editors of competing sensationalist newspapers [Labouchere was the editor of Truth].1104

The Labouchere Amendment has been cited as evidence of the great anti-sex crusade or panic of the late Victorian state and establishment, that serves well a permissive mythology of

1102 Lucy Bland, Banishing the Beast, xiv. 1103 Michael S Foldy, The Trials of Oscar Wilde, 88. 1104 Louise A Jackson, Child Sexual Abuse in Victorian England, 105.

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subsequent liberation.1105 However, as I have illustrated in Chapter Six, men’s homosexual sex was not typically thought of as sex, or even vice, in this period. As illustrated by the tirades of

Stephen, men’s homosexuality was commonly understood as ‘unnatural vice’. The prohibition of men’s homosexual sex in this period has been well documented. But the Labouchere

Amendment should not be confused with a general prohibition of sex, which was understood by definition, as heterosexual. Indeed, as I have emphasised, ‘unnatural vice’ was routinely understood as the product or the effect of the unnatural limiting or restricting of a man’s hydraulic sex drive, as illustrated in the fears of both Hemyng and Stephen.

By the late 19th Century in Australia public pressure was growing for the colonies to follow the

English example. In 1910 in NSW the age of consent for girls had was raised from 14 to 16. It is apparent that the new legislation did affect men’s access to sex with young women.1106 Notably, the NSW Crimes Act of 1910 soon allowed leeway for men who liked to use underage prostitutes. The point of appeal in Skinner was the meaning of ‘common prostitute’, which was not defined in statute. Herbert Skinner pleaded not guilty to the charge of carnal knowledge on the grounds that the girl he had sex with was a common prostitute over the age of 14. It was contested by the defence that a common prostitute was a woman/girl given to ‘indiscriminate intercourse with men, not necessarily for business or for gain’.1107 But this definition was

1105 For example see Richard Davenport-Hines, Sex Death and Punishment, 132-135, Jeffrey Weeks, Sex, Politics and Society 2nd edition, 102-103. 1106 The new Australian age of consent laws threatened men’s access to sex. In Jill Bavin-Mizzi’s analysis of criminal charges in three Australian colonies she notes a dramatic rise in the number of carnal knowledge complaints after the initial change in legislation in the 1890s. The number of young complainants of carnal knowledge remained constant throughout the 1890s. However the rise in the age of consent produced a large group of older complainants, constituted by adolescent girls of between 12 and 16 years of age. Adolescent girls were provided a new language by which to explain forced sex – that of carnal knowledge But it was not as helpful as they might have hoped, for their complaints were not taken as seriously as adult complaints of ‘violent’ rape. Bavin-Mizzi explains that ‘for young adolescent girls, the increases in the age of consent were a mixed blessing. They now had the option of prosecuting for carnal knowledge rather than rape (thereby avoiding any legal obligation to prove resistance), and the tremendous increase in the number of carnal knowledge cases during the 1890s suggests they used this new option. But the new statutory penalties for carnal knowledge were much lighter than the penalty for rape….What is more….conviction rates for adolescent carnal knowledge complaints were even lower than those for adolescent rape complaints and the sentences awarded, as the statutory maximums ensured, were indeed minimal’(1995: 70-71). 1107 R v Skinner [1913] 16 CLR 336 at 338 per Jacobs.

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rejected by the High Court in favour of one emphasising the commercial nature of the sexual interaction. It was held that a common prostitute was one who ‘carries on the trade or business

of prostitution and submits herself to men for the purpose of gain’.1108 Apparently Skinner’s girl did not fit the description. Sex was not the defining feature of prostitution law: commerce posed the problem. deMunck: consolidating the definition, the act of lewdness, not necessarily sex

Having emphasised the commercial quality of prostitution, the courts were soon faced with the task of discerning the sexual nature of the offence. In deMunck the court contemplated the nature of the act of prostitution. Armed with fresh knowledge that prostitution was necessarily a commercial transaction of a sexual nature, the courts had now to discern the nature of the

‘sexual’ (or lewdness, as it was considered in the early 1900s). In 1918 Mrs deMunck was convicted inter alia of attempting to procure her daughter Kathleen to become a common prostitute contrary to the Criminal Law Amendment Act 1885, and sentenced to 15 months imprisonment with hard labour. Like Herbert Skinner before her, Mrs deMunck’s conviction was appealed based on the meaning of ‘common prostitute’.

The mother and daughter team had been observed ‘accosting men in the street’ and Kathleen was noted ‘taking men’ to her mother’s house, and being left ‘alone with a man in a room furnished as a bedroom’.1109 It was argued that the evidence showed ‘that during a period of some months the appellant permitted her daughter to bring men to the appellant’s house and to be in private with them in circumstances which would lead to the inference that she had repeatedly had sexual intercourse with them’.1110 But the ‘evidence’ suggested in fact, that

Kathleen had not had sex with any man. Fourteen year old Kathleen was subjected to an internal

examination to determine whether she was a virgin, as was contested by the defence and the

young woman was declared virgo intacta. The defence argued that as Kathleen had not had

1108 Ibid at 337-338 per Pring J. 1109 R v deMunck [1918] 1 KB 635 at 636. 1110 Ibid at 637 per Darling J.

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intercourse with any man, her mother could hardly be guilty of procuring her to become a common prostitute. A prostitute, according to the Oxford dictionary, was one ‘who offers her

body to indiscriminate sexual intercourse, especially for hire – a common harlot’.1111 But the

Court dismissed this definition with its emphasis on intercourse. The delicately entitled Justice

Darling declared that

the term “common prostitute” in the [1885] statute is not limited so as to mean only one who permits acts of lewdness with all and sundry, or with such as hire her, when such acts are in the nature of ordinary sexual connection. We are of the opinion that prostitution is proved if it be shown that a woman offers her body commonly for lewdness for payment in return.1112

Notably, lewdness remained undefined, a judicial omission and ambiguity that was set to haunt

future prostitution trials. It was determined not to be confined to a woman who ‘offered her

body for natural sexual intercourse’, but could include the offer of a woman’s body ‘for the

gratification of the sexual passions of any man by any unnatural and abnormal act of

indecency’.1113 I can only speculate what the court imagined Kathleen to have been doing with the men in her bedroom. As I have illustrated, sodomy or ‘unnatural vice’ was not traditionally considered as sex. Whatever was in mind by the court, it was decreed lewd behaviour and constitutive of prostitution. Mrs deMunck’s appeal was denied.1114

1111 Ibid at 636 per Purchase. 1112 Ibid at 637 Darling J. 1113 Ibid. 1114 No mention of a commercial transaction was made in the court transcript. I presume this was undisputed evidence. In an earlier important case in New Zealand one intrepid constable accepted the challenge to fully undress in order to entrap a masseuse. The constable’s naked efforts resulted in the internationally significant 1977 trial of Robinson. Robinson together with our courageous Constable Palmer, helped pave the way toward a definition of prostitution. In the dispute over erotic massage it was declared that prostitution meant ‘a woman’s offering of herself as a participant in physical act of indecency for the gratification of men in return for money’. In this instance a ‘50/50’ (mutual) naked massage was deemed prostitution to the effect of keeping a brothel, contrary to the New Zealand Crimes Act. This was despite one primary witness’s testimony that as a client ‘there was no sexual content in these massages, even as to breasts’. (Constable Palmer’s rendezvous failed to proceed past the point of massage oil application). The trial judge directed the jury to use ‘common sense’ in determining whether the mutual naked massage constituted what he identified as the common understanding of prostitution, ‘a woman offering her body for lewdness in exchange for some sort of payment’. Evidentially the jury agreed that it did. (Although there was debate as to the prejudicial importance to the jury of the exhibit copy of the paperback The Art of Erotic Massage introduced as evidence secured from the premises). The two defendants were both found guilty of keeping a brothel, although the jury stated that this was ‘not a serious case of brothel keeping’. A $250 fine was imposed on each defendant with the appeals judge warning that such a lenient outcome would have been unlikely ‘had the [massage] services extended to the same range as the book [The Art of Erotic Massage]’. Thus Robinson brought us one step closer to a

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Conclusions: prostitution law, not aimed at sex

The trials of Skinner and deMunck formed important definitions in the legal understanding of prostitution. Skinner isolated payment (or gain) as essential, although the nature of ‘gain’ remained ambiguous. And deMunck corrected the misconception that prostitution necessarily involves intercourse. Yet interestingly, neither of these cases involved offences committed by prostitutes, or focused on sex.1115 The state’s inroads into the prostitution market have

proceeded without a coherent theory or position on what constitutes the harm of prostitution, or

indeed why its associated activities are criminal at all. Sex is not the target of the law. In the

Contagious Diseases Acts of the 1860s, women are implicated as harmful as the purveyors of

disease. In the Street Offences Act 1959, women who ‘clutter’ the streets are identified as the

primary problem, therefore criminal harm of prostitution. Men who live on the earnings of

prostitution or who run brothels have consistently been identified as criminal, and in fact ‘evil’,

with little explanation for why this is so. However the act of exchanging sex for money has not

been declared unlawful or harmful. And the act of exchanging money for sex has been largely

invisible before the state and in the law. This confused and contradictory legal position has

consistently been informed by the premise that prostitution is natural and inevitable.

The inevitability of prostitution was the starting point for Wolfenden; its ‘obvious’ truth was not

debated in the 1950s. It was simply accepted as a truth that has prevailed in prostitution law

throughout history. The ‘fact’ that prostitution is inevitable has not been explained or

definition of prostitution, one that made no mention of either intercourse or sex. While we can thank our brave constable for his heroic deeds and contribution to the evolution of prostitution law, unfortunately this definition failed to withstand the test of McFarlane (R v Robinson [1978] 1 NZLR 709). 1115 Skinner involved a carnal knowledge charge, and deMunck seems in relation to almost all related offences, except those of a prostitute. Mrs deMunck was charged with attempting to procure a woman to become a common prostitute, aiding and abetting prostitution, and causing or encouraging the prostitution of a girl under 16 years of age. In the anomaly that is prostitution law the act itself has not been considered the basis for an offence. From the 1900s onward, the law continued to be tried and tested over the meaning of the once famed ‘social evil’. Notably, the most judicially crucial (and famous) trials are those involving the industry and infrastructure of the trade. That is; either living on the earnings, running a disorderly house (or brothel), or procuring a woman to become a prostitute. This is not to underestimate however, the focus of law enforcement or policing. Brown et al. in particular are quick to remind that despite the statutory focus, in reality the majority of charges are aimed squarely at prostitutes, particularly for soliciting (2001: 1063).

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substantiated in court, in the law or in parliament. Neither has the common argument been justified that the inevitable nature of prostitution explains the law’s lack of interest in prohibition. This does not follow necessarily. The arguably inevitable occurrence of theft bears no relation to its criminal status. Perhaps the state identifies prostitution as simply harmless and private, therefore beyond the interest of the criminal law: this might explain a lack of interest in prohibition. However, the state has long shown an interest in regulating and prohibiting activities associated with prostitution - why the interest at all?

Along with the thesis of inevitability run important parallel assumptions about the nature of prostituted sex, and indeed, the nature of women. The premise that prostitution is inevitable is informed by the belief that prostitution is necessary and natural. As I noted in Chapter Four, the

Wolfenden Committee was influenced profoundly by the opinion of the British Medical

Association, that women who work as prostitutes possess an innate inclination to do so. This idea, that women are prostitutes by nature, is not new. It has informed the law since at least the

Middle Ages.1116 It has implications for women’s sexuality beyond the regulation of prostitution. The premise of ‘naturalness’ informs the view that prostitution is inevitable (as part of women’s nature) and that sex for money is simply one form of sex. In this view, prostituted sex is women’s sex.1117

The judgment in Clarence reveals a grave fear of the Bench that women might contest this

object position within the law. The Bench in Clarence was not anti-sex, but rather feared the recourse of prostitutes in the face of disputed consent, women who might contest their position as ‘common to all men’, especially those men by whom they are deceived. The modern permissive mythology that characterizes the late Victorian state as outlawing sex in its closure

1116 James A Brundage ‘Prostitution in Medieval Canon Law’ (1976) 1 4 Signs, 825-845. 1117 This view of the state also informs the anathema consistently and universally directed by it towards male pimps, who profit from, restrict and dominate an otherwise ‘naturally occurring’ relationship between men and women. See, Kate Gleeson ‘“Having Sunk as Low as Possible for a Man to Sink”: The Pimp in Law’ (Forthcoming 2005) Australian Feminist Law Journal, Vol 21.

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of brothels in 1885, misrepresents the fundamental agenda of the state, which, after all, views sex as the right of the freethinking tenacious man. Clarence confirmed, along with the

subordinate status of the wife, the expendable nature of the common prostitute as an object of

men’s privilege and state control. The judgment further eroded women’s capacity to testify to

sexual harm, a legacy that has persisted and prevails, as I now explain in the conclusions to my thesis.

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Conclusions: the Vision of the Modern State in Regard to Sex

Consensual activity between husband and wife in the privacy of the matrimonial home, is not, in our judgment, normally a proper matter for criminal investigation, let alone criminal prosecution.

(Lord Justice Russell In R v Wilson 1996)1118

Clarence, what it embodies and what it governs, is still at large. In spite of what the mythology of the 1960s permissive state would have us believe about the 20th century revolution in individual and sexual rights, Victoria still reigns. The Victorian patriarch rules beyond the case of Brown, in understandings of rape and prostitution. In Brown and its endorsement of the 1882 wisdom of Coney, this Victorian authority is popularly seen as an aberration in an inevitable, steady progress. Particularly since the overruling of the marital rape exemption we might be led to think that Clarence is dead, and that the Victorian hold on our right to our sexuality has died along with it.1119 After all, even Lord Mustill’s radical use of Clarence was not upheld. As I have argued however, it is indeed our acceptance of the mythology of the permissive state that leads us to deny the Victorian presence in our modern state.

At the outset of this thesis I explained that I am interested in writing what Foucault calls a history of the present. In this conclusion I briefly illustrate what it means to be living today in the shadow of the permissive project of the 1960s state. I want to bring together the central arguments of my thesis, that there has been no radical change of the state in regard to sex, and that the success of the permissive mythology has generally blinded us to this fact. The permissive mythology has persuaded us of the existence of a repressive Victorian state: the mythology relies on an illusion of progress away from Victorian repression. However the state’s interest in sex has long been concerned with securing men’s sexual liberty, particularly within the late Victorian period. This interest has not changed dramatically. And public demand, or

1118 R v Wilson [1996] 3 WLR 125 at 128, per Russell LJ.

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respect for the individual (other than men as a class) was not the impetus for the legislative shifts of the 1960s. Despite important changes in law in regard to marital rape and men’s gay sex, I argue that the ethos, intent and motivation of the state centre on a model of prostituted sexuality that privileges men’s sexual liberty and men’s need for sex.

I now return to Brown and the present to show how the success of the permissive mythology has been so effective, that even the Victorian arguments of Lord Mustill are routinely championed as permissive and progressive. I want to illustrate the continued and highly influential mythology of Wolfenden as a story of freedom and tolerance, despite the punitive and controlling agenda of the Report. As long as we continue to be led by the mythology of the permissive state, we will not see the Victorian agenda of our own state. I explain what this means for sex law today by briefly outlining the contemporary legacy of the permissive state and Victorian authority on sex. I do not provide an in depth analysis of more recent judgments, law and policy, but simply use them as examples. In discussing the case of Wilson I provide my own discrete aperture into the contemporary state.1120 At first glance, Wilson in 1996 appears to

support the permissive mythology. But in fact, it supports my thesis.

In 1996, during the same period as the various trials of Brown, Alan Wilson appealed to English

court of Appeal. Wilson had been convicted of assault occasioning actual bodily harm for

branding his initials on his wife’s buttocks with a hot knife. The charges were brought when

Mrs Wilson’s doctor noticed the scars on her body and informed the police. According to Dr

McKenna, this was not the first time Mrs Wilson had been branded in this way.1121 Mrs Wilson

did not give evidence in court, but Mr Wilson had testified to the police that his wife had

consented enthusiastically to the branding: ‘it was done for love. She loved me. She wanted me

1119 Especially since the 2003 ruling of Dica, Clarence is seen to be even less relevant. However, disease transmission is only one of the areas Clarence governs in regard to consent. Dica is pending appeal. See my discussion see note 776. 1120 Wilson, and the implications of consensual violence, deserves a thesis of its own.

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to put my name on her body’.1122 Mr Wilson explained that his wife had wanted a tattoo of his

name on her body, but as they did not how to create a tattoo, the couple agreed to use a hot

knife to brand her instead.

Justice Crabtree, the trial judge, ruled that despite the alleged consent of Mrs Wilson, he was

bound to direct the jury to convict, in the light of the Brown decision. Judge Crabtree lamented

the ruling in Brown and apologised that although he saw the judgment as incongruous with the modern role of the state in regard to sex and the rights of individuals,

the reality that I have to deal with is that….until such time as the legislature or the European Court do something about it we are now saddled with a law that means that anyone who injures his partner, spouse, or whatever, in the course of some consensual activity is at the risk of having his or her private life dragged before the public to no good purpose. Sadly, I take the view that I am bound by the majority in Reg. v Brown and that I have to, in those circumstances, direct the jury to convict.1123

Justice Crabtree ‘reinforced his view of the merits of the prosecution’ by sentencing Alan

Wilson to a conditional discharge.1124 On appeal, the merits of the prosecution were denied

entirely and the conviction was quashed. Lord Justice Russell identified ‘no factual comparison’

between the facts of Wilson and Brown, the activities of the latter being ‘truly extreme’ in his

assessment.1125 However, the nature and severity of assault were not the only considerations to inform Lord Russell’s judgment. Russell emphasised the appellant’s testimony that Mrs Wilson not only had consented to the branding, she had instigated it. Russell criticised the Crown

1121 Sangeetha Chandra-Shekeran, ‘Theorising the Limits of the “Sadomasochistic Homosexual” Identity in R v Brown’, 596. 1122 R v Wilson [1996] 3 WLR 125. 1123 Cited in R v Wilson [1996] 3 WLR 125 at 126 per Russell LJ. I am disturbed by the ‘whatever’ in this passage. 1124 Paul Roberts, ‘Consent to Injury: How Far Can You Go?’ (1997) The Law Quarterly Review, Vol 113, 27. 1125 Russell noted that the Lords in Brown had identified tattooing as an activity which ‘if carried out with the consent of an adult does not involved an offence under section 47, albeit that actual bodily harm is deliberately inflicted’. For Lord Russell there is ‘no logical difference’ between a branding and a tattoo’ (R v Wilson [1996] 3 WLR 125 at 127).

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Prosecution Service (CPS) for bringing the case, which ‘served no useful purpose at considerable public expense’.1126 According to Lord Justice Russell,

it is not in the public interest that activities such as the appellant’s in this appeal should amount to criminal behaviour. Consensual activity between husband and wife in the privacy of the matrimonial home, is not, in our judgment, normally a proper matter for criminal investigation, let alone criminal prosecution.1127

For Lord Russell there ‘must be exceptions’ to the proposition that consent is no defence to the deliberate infliction of actual bodily harm,1128 and the circumstances of Wilson provided an appropriate exception.

The different treatment by the courts of the activities in Wilson as against Brown is often used to support the view that the convictions in Brown rested on homophobia.1129 Especially since the

Wolfenden Report and the Sexual Offences Act 1967 and its subsequent equalising amendments, the state is thought unjustified in discriminating against gay men’s sexuality.1130

We are surely at the tail end of the unfinished 20th century revolution of sexual tolerance and

equality. Wilson was cited in the 1997 appeal by the Brown appellants to the European Court of

Human Rights (ECHR) as evidence of the discriminatory and homophobic nature of the English

House of Lords ruling. The ECHR unanimously ruled that the English convictions rested on the seriousness and the extreme nature of the assaults, not on homophobia.1131 However for those like Paul Roberts who criticise the Brown judgment the arguments for ‘severity’ and the seriousness of the assaults do not withstand scrutiny.

Roberts critiques the different treatment of consensual assault in Wilson and Brown, arguing that there are not adequate, consistent grounds for legally distinguishing between the activities

1126 R v Wilson [1996] 3 WLR 125 at 128 per Russell LJ. 1127 Ibid at 128, per Russell LJ. 1128 Ibid at 127. 1129 In its submission to the Home Office Sex Offences Review Team, the Gay and Lesbian Humanist Association identifies the different verdicts in Brown and Wilson as evidence of discrimination faced by gay men before the law (1999: 4). 1130 Tame Chris, ‘Why Sado-Masochism Should not be Criminalised’. 1131 Laskey, Jaggard and Brown v United Kingdom (21627/93) [1997] ECHR 4.

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in the two cases. Roberts contests Lord Russell’s assessment of the activities of Brown as ‘truly extreme’, suggesting that such a judgment involves considerations of taste and aesthetics, rather than an objective or legal assessment of harm.1132 Roberts notes that the Wilsons were married, that the different treatment by the law of homosexual men and married couples is ‘wrong in principle’, and that such different treatment contravenes the United Kingdom’s obligations in international law.1133

John Wadham, the Director of Liberty, the civil liberties organisation that funded the Brown

appellants’ appeal to the ECHR, and counsel for the appellants at Strasbourg, emphasises that

although the Court of Appeal distinguished the facts of Wilson from those in Brown, ‘the reality

is that in Wilson the couple were [sic] heterosexual and married, rather than homosexual

men’.1134 For Wadham, the line of reasoning in Wilson is correct and appropriate for the times, being characteristic of one that ‘most people would accept that, in general, adults should be entitled to make up their own mind about their own sexual practice’.1135 The logic of Wilson

might be thought to contradict Brown in order to correctly uphold the new vision for the state

1132 For Roberts, ‘Russell LJ’s assertion that the facts of Brown were “truly extreme” is also problematic. Although the Brown appellants’ idea of recreation might strike many people as bizarre or disgusting, the agreed facts, as they appear from the judgment of Lord Jauncey, were that “the receivers [“victims”] had neither complained to the police nor suffered any permanent injury as a result of the activities of the appellants”. Mrs Wilson’s scar tissue was, if anything, greater and more permanent disfigurement than any of the excruciating but temporary discomforts inflicted and suffered by the Brown defendants; although none of the injuries in either case could properly be described as “serious”’ (1997: 29). Much commentary on Brown criticises the judgment and, such as in the work of Roberts, stresses the non- permanent (therefore inconsequential) nature of the injuries sustained and inflicted by the appellants. Leslie Moran argues that SM such as that constituting the evidence of Brown, is typically safe, consensual and unrisky: ‘it is a world of spoken and unspoken preparatory negotiations, of agreements, of contracts, where activities are undertaken in a well ordered and highly controlled manner. Rather than a world of unruly violence it is a world of risk management and risk reduction. Here, the instruments of pain are clean and sterilised. Thus the limit of pain is negotiated, defined and enforced through verbal (the code word) and non-verbal signs that terminate the performance. It is a world where cruelty has been replaced by a particular etiquette of civility’ (1995: 237-238). In contrast, Susan Edwards argues that the injuries in Brown were in fact extreme and that practitioners of such behaviour should be protected from themselves and their assailants, by state and society in the form of ‘urgent psychiatric treatment’ (1996: 88). SM practitioner Leo Bersani suggests that the trend in certain contemporary texts to deny the violence (and sometimes even the pain) of SM, and the corresponding ‘emphasis on communal male jolliness’ is such that ‘you may think a Rotary Club Promotional piece had been mistakenly inserted in a volume on leatherfolk’ (1995:20). 1133 Paul Roberts, ‘Consent to Injury: How Far Can You Go?’, 34. 1134 John Wadham, ‘Consent to Assault’, 1813. 1135 Ibid, 1812.

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that values autonomy, privacy and consent in regard to sex: the proper vision for the state, championed by Lord Mustill in his arguments that would quash the convictions in Brown.

According to Paul Roberts, in assessing the judgments of both Wilson and Brown, it is apparent

that the criminal law is ‘seriously defective’ when the Court of Appeal feels ‘obliged to go as

far as it did in Wilson in taking liberties with their Lordships’ decisions so that common sense

and justice can prevail’.1136 For Roberts, in Wilson, Lord Justice Russell performed a correction of the Lords’ mistake in Brown, and brought the state back on track in its proper modern role of respect for sexual privacy and adults’ autonomy. In Roberts’s view, justice and common sense will ‘inevitably’ prevail once Brown is reconsidered, and he notes, ‘one suspects that Russell LJ will be amongst those hoping that Lord Mustill gets to write the majority judgment next time’.1137 For Roberts, the majority decision in Brown is ‘regrettable’ and Lord Mustill’s

judgment is correct and in line with that of Lord Russell’s appropriate ruling in Wilson.1138

Here I am not interested to debate the merits or the practicalities of the Wilson decision, except to briefly note the ways in which the case has typically been discussed, such as by Roberts and

Wadham above.1139 I am more interested in how both Wilson and Brown project the prevailing prejudices of the state in regard to sex. Possible homophobia on the part of the Lords in Brown is not the only prejudice of the law revealed by the judgment in Wilson. Although Paul Roberts characterises Wilson as an ‘unremarkable case’, except in its ‘ephemeral voyeuristic and entertainment value’,1140 the judgment is profound. Wilson does not confirm the sexual freedom

1136 Paul Roberts, ‘Consent to Injury: How Far Can You Go?’, 35. 1137 Ibid. 1138 Ibid. 1139 For that matter, despite the centrality of Brown to my thesis, I have not aimed to assess the merits Brown either, except in the broader context of what Lord Mustill’s decision says about the nature of sex as understood by the modern, ‘progressive’ state. As I have explained in the preface to this thesis, Brown merely provides my aperture into the views of the state. I view Wilson as similarly useful for my purposes of exposing the motivation and object of the new state. For a discussion of the problems and ramifications of addressing SM and consensual violence in law I would direct readers to Cheryl Hanna’s 2001 article, ‘Sex is Not a Sport: Consent and Violence in Criminal Law’. 1140 Paul Roberts, ‘Consent to Injury: How Far Can You Go?’, 35. I do not accept that Mrs Wilson volunteered to become the object of this voyeurism and entertainment that Roberts so freely (and I would

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of women. It confirms the longstanding status of the wife and the sanctity of marriage in the criminal law. In quashing Alan Wilson’s conviction, Lord Russell might simply have relied on the arguments for severity and nature of the assault, especially given his affirmation of the

House of Lords’ assessment that the activities in Brown, in contrast, were ‘truly extreme’.1141

However Lord Russell did not limit his arguments to the nature and character of assault. Lord

Russell affirmed the special private status of marriage as beyond the proper scrutiny of the criminal law.1142

Lord Russell’s chastisement of the CPS for wasting time and resources interfering in the sacred marital sanctum reveals his decision as even more closely related to Lord Mustill’s arguments concerning homosexual sado-masochism, than at first might be apparent. Perhaps predictably,

Paul Roberts identifies the arguments of both Lord Russell and Lord Mustill as representing

‘common sense’ and ‘justice’ in a controversial area of criminal law that in these modern times, bears upon activities ranging from boxing to ritual circumcision and to ‘minority’ sexualities.1143 However it is not simply ‘common sense’ that informs the judgments of both

Lord Russell and Lord Mustill. There is a more profound and telling link by which the two men are conceptually wedded: that is, the subordinate status of the wife.

argue, disrespectfully) advocates. In contrast to Paul Roberts, for Julie Bradwell Wilson is deeply remarkable and dangerous: it signifies a ‘legalisation of sexual violence in a private sexual context [that] will inevitably result in legalising violence against women because of difficulties of consent’ (1996: 1684). 1141 R v Wilson [1996] 3 WLR 125 at 127 per Russell LJ. 1142For Sangeetha Chandra-Shekeran, the ‘unifying force’ that protected Alan Wilson from the ‘scrutinising gaze’ of the criminal law is the immunity granted to the heterosexual marital union’: In Wilson the appellant’s activities are ‘barely even relevant, given the wholesale protection to acts occurring within the matrimonial bedroom. Within this realm of unfettered pleasure and play, women function merely as signifiers within an economy of male desire. There is no room for Mrs Wilson to speak because the conditions of the marital union are already predetermined and pre-approved. Whereas Brown and his co-accused could not escape the relevance of their sexual desire, Wilson and his wife’s bedroom activities, protected by the law’s approval of heterosexual desire, do not even require explanation’ (1997: 597). 1143 Paul Roberts, ‘Consent to Injury: How Far Can You Go?’, 35.

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Notoriously, Brown concerns men: gay men, bisexual men, men who like to have sexual escapades and relations primarily (if not only) with other men.1144 And yet Lord Mustill’s defence of these men’s right to their sexuality is premised on the subordinate status of the wife and the sexual privilege of the heterosexual male. Hence, the direct connection of his arguments with those of Lord Russell in protecting the ‘matrimonial home’ from the interference and scrutiny of the state. Lord Mustill’s invocation of heterosexual marital privilege to defend the men in Brown is rarely noted or explored, despite the abundance of academic and popular attention given the case. Brown is standard undergraduate law textbook material, but rarely if ever elaborated on or explained in detail is Lord Mustill’s reliance on the authority of Clarence.

I have argued that the lack of attention paid Clarence more generally is a direct product of the enormous hegemonic success of the judgment, particularly that of Fitzjames Stephen, that has succeeded in presenting itself as unremarkable in law.

Typically, when Lord Mustill’s arguments are represented in legal academia, they are praised for their ‘common sense’, pragmatism and appropriate understanding of the modern right to privacy of the individual.1145 Some aspects of Lord Mustill’s lengthy discussion are expressly

concerned with public policy and the limitations of the Offences Against the Person Act 1861 to

address SM in the 1990s.1146 However Lord Mustill commences his argument authoritatively by citing Clarence. Clarence, along with Wilson more than 100 years later, confirms the sanctity and privacy of marriage, the implicit subject status of the heterosexual male in the criminal law, and the necessity of men’s unfettered access to the sex of women, for the sake of the nation.

Both Wilson and Brown invoke the notorious cruelty and misogyny of the late Victorian state that condemn women to sexual harm. Lord Mustill, and to a lesser extent Lord Russell, has

1144 Brown is usually discussed in terms of the homosexuality of the appellants. Roland Jaggard, an appellant to both the House of Lords and the ECHR, refers to the police action that produced the video evidence as involving to ‘dawn raids on the homes of gay men’ (Jaggard: 1997). However Anthony Furlong points out that many of the men were not openly (or perhaps conclusively) homosexual, that some of the men were ‘leading double lives’. They were married or had girlfriends (Furlong: 1994). 1145 Richard Mullender, ‘Sado-Masochism, Criminal law and Adjudicative Method’, 384. 1146 R v Brown [1993] 2 AII ER 75 at 101-117 per Lord Mustill.

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come to be championed as the libertine’s defender1147 in a treacherous era in which, particularly

since the crisis of AIDS, we all are vulnerable to being coerced ‘back into a conservative

morality’.1148 How did the Victorian arguments of Lord Mustill come to be viewed as the libertine’s defence of the 1990s?

I have argued throughout this thesis that the modern arguments for privacy, consent and autonomy, that are praised as indicative of the correct approach of the modern state, are products of a mythology constructed and promoted by the state of the 1950s and 1960s. The hegemonic success of that state, most crucially through the Wolfenden Report, has persuaded us that the new state is concerned first and foremost with the rights of ‘consenting adults in private’ and the rights of an individual who, in the 20th century, has come to be unshackled from

the repressive Victorian state in order to be allowed to make choices of sex, morality and

personal preference, at least in private.1149 The mythology is that the permissive shift of the

1960s was a reflection of the times, a response to the dynamic and evolving mores, values and

desires of the increasingly affluent and outspoken ‘permissive’ population.1150 The permissive state gave us what we wanted. And I would argue, the success of this mythology has led us to a

position, within academia, public policy and common understandings, from which any policy,

decision or action of the state that looks like freedom is accepted as freedom.

John Wolfenden testified that ‘freedom within the law’ was the guiding principle for the

Wolfenden Committee, as instrumental in promulgating the myths of the new permissive

state.1151 Along with ideals of freedom, another is the deference to the individual that was

performed by the 1960s state, within the legacy of which we are so fortunate as to reside today.

As I have shown by reference to the work of Eric Hobsbawm and Jeffrey Weeks in particular,

1147 Susan Edwards, Sex and Gender in the Legal Process, 83. 1148 Ian Freckleton, ‘Masochism, Self-mutilation and the Limits of Consent’, 72. 1149 Jeffrey Weeks, ‘An Unfinished Revolution’, 171-72, 1150 See my summary of Eric Hobsbawm’s analysis of what he terms the ‘cultural revolution’ of the ‘Golden Age’ in Chapter Two.

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the myth of the triumphant individual is celebrated in contemporary, orthodox histories of the

20th century western capitalist world. And yet, as I have argued, the Wolfenden Report and its

subsequent legislation do not privilege the individual, as Hobsbawm, Weeks and others claim.

They privilege state, society and the family and protection from ‘offence’, especially the offence

of women.

Despite the many comprehensive testimonies and protests of individual women about the

dangers to women of ‘sweeping prostitution under the carpet’ and of sweeping women into the

arms of pimps and racketeers, the Wolfenden Committee and the Home Secretary persisted with

an agenda of invisibility, to the detriment of women.1152 The Wolfenden Committee, directed explicitly by the then Home Secretary, privileged the potentially offended general public or society as the subject of prostitution law, along with the heterosexual male who might continue to access prostituted women, as long as he does not interfere with the aesthetics of the general public and the state. And, despite comprehensive feminist protest against the move, the

Wolfenden Committee cemented the subject of the archaic ‘common prostitute’ in modern rhetoric and law, confirming, along with her notoriety, a particular understanding of prostitution that is now typically discussed and praised in terms of ‘civilised tolerance’ and modern liberal pragmatism. This understanding privileges masculine desire in its focus on the inevitability, naturalness and necessity of prostituted women. And it illustrates the normalisation of the implicit subject status of men in prostitution law. The interest in the individual of the

Wolfenden Committee in regard to prostitution was selective, gendered and ultimately secondary to concerns of ‘public offence’ and the state: as is the Street Offences Act 1959.

Similarly, the Sexual Offences Act 1967 is usually depicted in modern political history as the absolute and foremost symbol of the welcomed (although perhaps overdue) acknowledgment by the 1960s state of the rights of individual adults to be free to be sexual in private. But as I have

1151 John Wolfenden, Turning Points, 130.

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argued, the right of the individual is even more explicitly denied in this Act than in the Street

Offences Act 1959. The privacy provision of the Sexual Offences Act 1967 that dictates men’s homosexual practices cannot even be ‘defended’ as concerned with protecting the general public from offence, as so often is the Street Offences Act, for the provision was aimed at homosexual men themselves. The Sexual Offences Act aims to constitute, dictate and direct what it is that a homosexual man may legally do with his body and his relationships, with the tacit and yet ever-watchful authority of the state. The Wolfenden Committee, and the architects of the Sexual Offences Act did not aim to enfranchise, liberate or even represent the interests of the individual homosexual man.

Although sometimes problematised, scrutinised and criticised for its shortcomings in practice, the rhetoric of the permissive state has been integrated into academic and popular understandings.1153 However as I argued in Section One of this thesis, Wolfenden (and its subsequent legislation) was motivated not by ideals of freedom of the individual; it should not be characterised in terms of liberalism, freedom, emancipation, enfranchisement or inclusion.

The Wolfenden Report was aimed first at the control of women and second at the construction of the male homosexual subject as an object of control. At its core, the Wolfenden Committee, and its architect Home Secretary Sir David Maxwell Fyfe, were concerned with consolidating in the 20th century the Victorian protection of the sexual liberty of the heterosexual male. The

interests of the state and the ‘personal obsessions’ of the Home Secretary1154 and politicians such as Leo Abse, more than any demands of the public, formed the spur of the permissive state.

1152 Helen Self, Prostitution, Women and the Misuse of the Law, 77. 1153 It is promoted especially and as diversely by those of the sexual liberal, queer theory, Marxist influenced and popular history traditions of academia and law. For example, see the work of Barbara Sullivan, Jeffrey Weeks, Richard Davenport-Hines, Montgomery Hyde, Stephen Jeffery-Poulter, Eric Hobsbawm and Martha Chammallas that I present in Section One of this thesis. 1154 Helen Self, Prostitution, Women and the Misuse of the Law, 77.

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Directed by the erroneous mythology of the permissive state, the arguments of Lord Mustill

(and Lord Russell in Wilson) might appear to be on the side of freedom and the individual.

Viewed through the lens of ‘permissiveness’ and a state in retreat from legislating morality, of

course Lord Mustill’s arguments for sexual rights appear premised on modern, newly embraced

ideals of freedom. However the lens is distorted, for Lord Mustill’s arguments depend first on

the 1888 wisdom of the majority of Queen’s Bench in Clarence, which although also concerned

with freedom, had a very select view of this value in mind. The freedom embodied in Clarence is the fundamental liberty of the heterosexual male to have sexual access to women’s bodies, unfettered, unscrutinised and uninterrupted by the state. It is not the freedom of the generic individual citizen that is upheld by Clarence and Lord Mustill. Clarence celebrates and indeed constructs the freedom of the state to dictate women’s sexual status within the law, constructed as an object of men’s privilege in the form of the (unscrupulous) prostitute common to all men, and the (subordinate) wife common to one man.

As I have argued, an essential part of the mythology of the permissive and contemporary state would situate us, and our political and judicial representatives, as voyeurs of our dark past. This dark past, the permissive mythology tells us, is one of sexual repression directed and inflicted by a state pre-occupied by an anti-sex crusade. However as I have argued in Section Two of this thesis, this mythology concerning Victoria would appear to have been propagated, in part, at the agenda of a modern state intent on presenting itself in terms of evolution and civilised progress that foremost serves the modern individual. We are very lucky indeed to be living in these modern times and pity our poor sexless ancestors: or so the state mythology would tell us.

Through examining fundamental artefacts of the Victorian state, such as the work of Fitzjames

Stephen, the Queen’s Bench trial of Clarence and the judicial treatment of prostitution, I have argued that the Victorian state was concerned with protecting the sex of men from intrusion of

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the state. The 1880s saw the creation of the ‘rapists’ charter’1155 of the marital rape exemption,

the denial of the harm of sex obtained by fraud (especially from prostitutes), and the

consolidation of the pathological persona of the ‘common prostitute’ into the supposedly

paternalistic and protective Criminal Law Amendment Act 1885. At the heart of these state

constructions of female sexuality is a deep and concerted fear for men’s sexual liberty. And yet, the mythology of the anti-sex oppressive patriarchal state persists, promoted by the modern state and celebrated perversely in academia. Not only have we mistaken the nature of the permissive state as concerned with freedom, we have erroneously been persuaded of the blanket repression of the Victorian state.

Although I emphasise the prevailing rule of the Victorian agenda of men’s sexual liberty in today’s modern state, it is not that nothing has changed. I acknowledge the profound shifts of the state in regard to marital rape and men’s gay sex in particular. In both these instances, I welcome greatly the positive effects on the individuals concerned, both men and women.

However I would still contest that the profound shifts of law in these areas are related far less to ideals of sexual freedom than is popularly thought, and politically suggested. In Chapter Two I have argued that the 1967 ‘liberation’ of homosexual men might better be seen as an unintended outcome of the permissive state, than as a charge forth of emancipation. Sir David Maxwell

Fyfe was horrified to go down in history as the man who made sodomy legal.1156 Sir John

Wolfenden did not advocate the repeal of buggery, and the Wolfenden Committee was very

interested in ‘treating’ homosexuality out of existence. The Sexual Offences Act 1967 was

mandated through pity (and disgust), spearheaded by what might politely be described as the

bizarre self-serving motivations of Leo Abse.

1155 The ‘rapists’ charter’ is the common feminist phrase used to describe the notorious 1976 case of Morgan which ruled that a man’s mistake as to a woman’s sexual consent need not be reasonable (Scutt: 1990: 491). I think the phrase is as accurately applied to Clarence, but as I have argued, the creation of the marital rape exemption has been met with little outrage or interest in academia or legal jurisprudence. 1156 Graham Stewart, ‘The Accidental Legacy of a Homophobic Humanitarian’.

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Although the contemporary and recent treatment of rape in marriage is not my focus in this thesis, I will make the following observations. As I noted briefly in Section Two, the marital rape exemption was only ‘eroded’ after 100 years once the anomaly of violence and illegal assault no longer could be reconciled with ‘forced sex’ in marriage. It necessitated ‘real’ violence and sodomy, both of which the state has always assessed as far more serious and problematic than mere non-consensual sex, for rape in marriage to be recognised as a crime.

The gradual ‘erosion’ of the marital rape exemption was not an ‘accident’ in the sense that I describe the decriminalisation of men’s homosexual sex. However, the judicial acknowledgment of criminal sex within marriage, in its emphasis on violence and ‘unnatural acts’, was not overtly concerned with women’s testimonies of sexual harm, or women’s sexual autonomy. In this regard, the modern consistency with Clarence is stark. Now, at the direction of Lord Russell in Wilson, it would appear that although the state no longer may protect men who force sex on their wives, it might protect those whom inflict violence. Wilson signifies another twist in the state’s long upholding of the sanctity of marriage.

Undoubtedly, this is where the men in Brown fell foul of the law. Much to the frustration of many commentators, the Lords of the majority in Brown resolutely refused to understand SM as sex, and maintained that SM (at least of the magnitude of the evidence in Brown) constitutes violence.1157 The courts defined the facts of the case as involving violent acts performed for the

purpose of sexual gratification, not as sex per se.1158 In Brown, SM was tried as violence, under assault provisions. For Lord Jauncey of Tullichettle the men in Brown ‘went far beyond the sort of conduct contemplated by the legislature’ in 1967 and the Wolfenden Committee.1159 Had

1157 Leslie J Moran, ‘Violence and the Law: The Case of Sado-Masochism’, 236-237, Carl Stychin, ‘Unmanly Diversions: The Construction of the Homosexual Body (Politic) in English Law, 506, David Fraser, ‘Oral Sex in the Age of Deconstruction: The Madonna Question, Sex and the House of Lords’ (1993) Australasian Gay and Lesbian Law Journal, Vol 3, October, 21. 1158 Lord Templeman noted that there was no evidence to support the assertion that SM is ‘essential to the happiness of the appellants or any other participants but the argument would be acceptable if sadomasochism were only concerned with sex, as the appellants contend. Sado-masochism is not only concerned with sex. Sado-masochism is also concerned with violence’ (R v Brown [1993] 2 AII ER 75 at 82). 1159 R v Brown [1993] 2 AII ER 75 at 92 per Lord Jauncey of Tullichettle.

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their activities more closely resembled sex as outlined in the Wolfenden Report and detailed in the Sexual Offences Act 1967, the men in Brown might not have appeared before the courts.1160

As my discussion of Coney in Chapter Seven illustrates, the state has long held an interest in

proscribing what it identifies as violence, detrimental to the public interest and the interests of

the state. Brown, in its upholding of Coney, would suggest, again, another consistency with the

Victorian view of the limited rights of individuals to consent. This consistency is of no surprise to those, such as Paul Roberts, Leslie Moran and Carl Stychin, who criticise Brown as archaic and retrograde. However, the judgment and obiter of Wilson suggest an exception to the general rules of criminal assault, if only in the case of marriage: the wife has always provided an exception. Although Wilson seems at direct odds with Brown, it too is directly consistent with the vision of the 1880s Queen’s Bench. And the arguments of Lord Mustill, the protagonist of modern ideals, is also explicitly consistent with this view.

The mythology of Wolfenden and the permissive state has sustained itself to bolster a state interested in continuing the myth of enfranchisement, respect for privacy and the privileging of the individual in matters of sex. Most of all, the permissive mythology serves a state interested to present itself in terms of evolution, civilisation and progress. In 2000 the Home Office published its review of sexual offences, Setting the Boundaries. The review is promoted as a comprehensive assessment and overhaul of the consolidating legislation that had addressed sexual offences from the 1860s. Adopting the rhetoric of Wolfenden, the review makes use of the mythology of a state in progress, continuing to evolve in line with public demand.1161

1160 This is especially the case as the evidence was so dated as to have been time barred under the gross indecency statute. It was not long after Brown that the ‘privacy clause’, or the anti-group sex clause, of gross indecency was challenged by ADT who took his case to the ECHR (ADT v The United Kingdom (35765/97) [2000] ECHR 40), which resulted in the eventual repeal of the clause. See note 685. 1161 According to then Home Secretary Jack Straw, the review recommends ‘in effect a new code of sex offences to take us into the new century, raising important questions of social and legal policy. The report is only the beginning of a debate on the way forward. I await the response with interest’. For Straw, the Wolfenden rhetoric of tolerance prevails to characterise the modern state: ‘modernising and strengthening the law can make a direct contribution to our aim of creating a safe, just and tolerant society. (Home Office: 2000: I).

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Setting the Boundaries is presented as operating amid a permissive state that is even more evolved than its predecessor. Saturated with the mythology of necessary permissiveness, the

Review does not see its own prejudice. In regard to homosexual offences, Setting the

Boundaries situates itself as the latest stage of the modern project of sexual tolerance and freedom commenced by Wolfenden, in its recommendations to treat homosexual and heterosexual sex equally before the law. The review blithely repeats the 1950s state propaganda that

the present law on homosexual behaviour has evolved slowly over time. Until 1967 all male same-sex conduct was illegal; the law reflected the then prevailing belief that such conduct was an abomination….By 1957 the Wolfenden Report was able to recommend that this use of the criminal law was no longer an appropriate social response and that homosexuality should no longer be proscribed’.1162

But as I have illustrated, the Wolfenden Committee did not recommend that men’s homosexual sex should not be proscribed. It recommended altering the ways in which the state proscribes homosexual behaviour and controls homosexual men.1163 Setting the Boundaries goes on to

further propagate the myth that in the old days, arguments for discriminating against

homosexual men were based on the presumption that ‘homosexual behaviour is intrinsically

wrong and contrary to the public good in that it is a menace to the health of society and has

damaging effects on family life. These arguments were rejected by the Wolfenden Committee

as long ago as 1957’.1164 But they were not rejected.

More apparent, and more damning, is the blindness of the Review to its Victorian prejudice regarding women’s sexual harm. In regard to rape, Setting the Boundaries incorporates unquestioned and unnoted the controversial logic of Clarence in determining the harm and

1162 Setting the Boundaries, 101. My Emphasis. 1163 Frank Mort, ‘Sexuality: Regulation and Contestation’, 43-44. 1164 E Frances Russell, ‘Appendix D4 Literature Review of Research into Homosexual Offences’ in Setting the Boundaries, Appendix D4, 222.

329

legality of rape by fraud:1165 wisdom that dictates that a woman’s experience of harmful sex is not the determining factor of legality, and more bizarrely, that a man’s mens rea (his intending to deceive) is irrelevant to the crime of sex obtained by fraud and false pretences. The reality for women of this view of sex and fraud is brutally apparent in the 1995 case of Linekar, concerning the quashing of a rape conviction, which I noted briefly in Chapter Seven. Linekar involved a sex worker deceived as to the nature of sex: her assailant agreed to pay for sex, but did not pay, and had not intended to pay.1166 Clarence was upheld in Linekar with Chief Justice

Morland citing Justice Wills in 1888 that,

consent obtained by fraud is no consent at all is not true as a general proposition either in fact or in law. If a man meets a woman on the street and knowingly gives her bad money in order to procure her consent to intercourse with him, he obtains her consent by fraud, but it would be childish to say she did not consent. In respect of a contract, fraud does not destroy the consent. It only makes it revocable.1167

Linekar defines the nature and harm of sex as premised not on a woman’s testimony of rape, but

on a man’s testimony of his want of sex. It is from the genesis of Clarence in its narrow

stipulation of that fraud which might vitiate consent to sex. That is, the Victorian stipulation of

Clarence of the extremely narrow understanding of the ‘nature of the act’ or the ‘identity of the

person’. Largely at the direction of Setting the Boundaries, this view has been transported from

the Victorian common law, integrated in statute in the latest sexual artefact of the modern state,

the Sexual Offences Act 2003.1168 The cases of Linekar and Wilson both illustrate the

uninterrupted Victorian regime of women’s sex. As I have shown in Section Two of this thesis,

the interest of the Victorian patriarch in sex was aimed foremost at securing sex for men,

through the vehicle of the common prostitute and the wife, despite or regardless of women’s

testimonies of non-consent, duplicity and sexual harm. In this regard, what has changed?

While the Sexual Offences Act 2003 has given up men’s gay sex to be treated as equal with

straight sex, it has held onto and embraced Clarence, in regard to sex obtained by fraud. To my

1165 Setting the Boundaries, 10 & 14. 1166 R v Linekar [1995] 3 AII ER 69.

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knowledge, this passes generally unnoted.1169 The hegemonic success of Clarence and its subsequent discourses of the subordinate wife and the expendable prostitute have ensured little interest and certainly no visible outrage at this prevailing Victorian construction of women’s experience of sex. Just as the Wolfenden Report’s construction of women as prostitutes by nature sparked little academic interest, the prevailing Victorian treatment of women’s sex in law has been neglected. The extensive mythology of the permissive state about freedom, tolerance and the individual, has been so successful that we have been persuaded to forget to look for the

Victorian agenda in our contemporary state. Our role as voyeurs of Victoria might better, and

more crucially, be directed toward our own state.

In the preface to this thesis I explain that the contrary logic of Lord Mustill in Brown prompted

me to ask: what is going on in this case? Having assessed the artefacts of the 20th and 19th century states, I feel more able to answer my own question. In Brown the House of Lords upheld the traditional view of the public interest. It invoked the Victorian ideas about the individual, consent and bodily integrity best exemplified in Coney, that consensual violence is not in the interests of the state. At the direction of Brown, these Victorian ideals prevail and would appear to govern the limits of our rights to our sexuality (except perhaps, in Lord

Russell’s wisdom, in the case of marriage). However, along with the majority in Brown, Lord

Mustill also invoked the Victorian ideals of individual, consent and bodily integrity. In its authority of Clarence, Lord Mustill’s argument is equally concerned with public interest: identified by the 1888 Queen’s Bench as involving the upholding of men’s unencumbered right to sex, the sanctity of men’s family privacy and marital dominion, and the precluding of women

(especially prostitutes) to seek redress for the harm of sex obtained by duplicity and fraud. Lord

Mustill and his peers are often depicted as at odds. And yet, in respect for Victoria, they are at one.

1167 Ibid at 76 per Morland CJ. 1168 Section 76 2(a) and (b). 1169 Kim Stevenson et al. mention that Linekar might be interpreted as troubling (2004: 11).

331

For Leslie Moran, the trials of Brown is the ‘most important recent event in a series of encounters between various institutions and practices of English law and the bodies and desires of the men who engaged in these consensual acts’.1170 I would agree with the importance of

Brown, not least of all for what it reveals about our contemporary state and the agenda by which it is informed. The ruse of the mythology of the permissive state has distorted our capacity to see the contemporary Victorian authority, not simply in the majority in Brown (here it is obvious) but in modern and championed arguments for freedom and sexual rights such as those of Lord Mustill.

Brown prompted me to dissect our state and its mythologies of freedom. Through examining the

Wolfenden Report and its subsequent legislation, I have noted the apparent shift in the approach and the means of the state, evident in the partial decriminalisation of men’s homosexual sex.

But the object of this approach is consistent with that of the late Victorian state. This is clearly exemplified in Brown, which suggests that the legacy of the permissive state, therefore the

Victorian state, is still strong. Brown involves a contemporary search for the sexual subject, a project begun in the 1800s. And I argue, the Wolfenden Report and the state’s interventions of the 1880s are part of that search.

Again, the irony of these discoveries about the interrelationship between the past and the present invokes Foucault’s permission to us that we may ‘laugh at the solemnities of the origin’.1171 John Wolfenden wrote in his 1976 memoir Turning Points of his amusement that

‘we who were thought by many to be so outrageous in 1957, should now be regarded as

Victorian fuddy-duddies. It is entertaining to have lived long enough to have made oneself

redundant’.1172 The irony lies in Wolfenden’s implication of progress and evolution to explain

1170 Leslie J Moran, ‘Violence and the Law: The Case of Sado-Masochism’, 225. 1171 Michel Foucault, ‘Nietzsche, Genealogy, History’, 372. 1172 John Wolfenden, Turning Points, 146.

332

why in the mid 1970s the Wolfenden Report might appear old-fashioned and (dreaded)

Victorian. In fact it is Victorian, and its Victorian sentiment prevails as well in the ‘progressive’

arguments of Lord Mustill for the legal tolerance of SM. There is one simple conclusion to this thesis: although we are persuaded that we bask in the legacy of the great permissive state, in fact, we live in the shadow of Victoria. The face of Wolfenden is the face of Victoria.

333

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