What is Unlawful?

A slender pamphlet recently issued by the Church of England's Moral Welfare Council adds an ironic and sophistic twist to the long-running argument about whether the British government ought to pass the Wolfenden recommendations on homosexuality into law-that is, whether the law should be so ammended that most homosexual acts in private between consenting adults would no longer be crimes.

Pointing out that there are a number of acts which are "unlawful," that is, not really approved by the law, even though they do not constitute crimes, Quentin Edwards in a few peculiarly reasoned pages attempts to remove the chief objection to the Wolfenden recommendations by in fact removing the substance of the recommendations themselves. Mr. Edwards is a Barrister-at-law, of the Middle Temple and the South-Eastern Circuit but it seems to this writer that his arguement, while clever, is really very little. help at all, though it does unconsciously point up a thing that is wrong with most of the tremendous discussion of the homosexual topic in England. Except for philosopher A. J. Ayer, whose pointed arguments we reported in Tangents in Feb. 59, nearly all of the people who have spoken “in defense of homosexuality" in England have bent over backward to assure one and all that they think it is a disgusting, immoral and unfortunate condition.

Thus we have Mr. Edwards arguing for the Wolfenden proposals on the following remarkable basis: that the

Wolfenden Committee wrongly summarized the difference between crime and sin; that they ought instead to have distinguished between acts which are criminal and those which are merely unlawful; that broadly speaking "what is generally accepted as immoral is unlawful, so that fornication, adultery, and prostitution are all unlawful although they are not crimes, as are deceit, fraud and, indeed all torts although they may not be crimes." Thus he argues that while most such acts are not crimes in themselves, "conspiring to commit them" is generally a crime, and prosecuteable as such. Besides, conspiracy is easier to prove in the courts than acts as such. Thus he suggests that England can have its cake and eat it by passing the Wolfenden recommendations making homosexual acts between consenting adults no longer a crime, but reserving them as unlawful, so that while the state needn't prosecute such acts as such, if it didn't feel inclined it could always reserve the right to prosecute for conspiracy-to-commit such acts.

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"... it would afford to its advocates and the Parliament itself an opportunity to condemn the practice of homosexuality openly as unlawful and yet to declare that justice does not require that every homosexual act between men should be a crime."

Seems to me that this sort of solution would have delighted old Lewis Carroll. It would also allow Parliament to waste a good deal of time without accomplishing any real end. -Lyn Pedersen

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