LEGAL ANOMALIES

There are the following apparent legal anomalies regarding homosexuality.

The first is the different attitudes of the law to the two sexes. Unless Section 52 of the 'Offences Against the Person Act, 1861' (penalizing assault upon a female without reference to the sex of the accused) be interpreted as such, there is nothing in English law which regards homosexual practices between women as criminal. We have not been able to trace any actions in this sense which are on record as having been taken under the 1861 Act. Theological and moral presuppositions, some of them based upon the imperfect medical knowledge of antiquity, may no doubt partly account for this differentiation between the sexes, but it can hardly be accepted as tenable today.

There is, however, a very much more serious legal anomaly. In no other department of life does the State hold itself competent to interfere with the private actions of consenting adults. A man and woman may commit the grave sin of fornication with legal impunity, but a corresponding act between man and man is liable to life imprisonment, and not infrequently is punished by very long sentences, five, ten or even more

years.

Such interference would only be warranted if there were proof that homosexual practices between males gravely affect society. Even if this were true, it could with justice be maintained that fornication and adultery threaten the well-being of society still more seriously than homosexual practices. With fornication there is the risk-and the common resultof the birth of illegitimate children who may be deprived of the security of a home and the love of a father and a mother. Adultery undermines the unit of society, the home and family.

Yet no legal penalty is now imposed for either fornication or adultery as such. The latter is only a ground for civil damages or divorce at the instance of the person aggrieved. Formerly (by an Act of 1650) adultery was punishable-like homosexuality-with death. G. M. Trevelyan, in English Social History (p. 231), writes of the seventeenth century: "The clear modern distinction between offences punishable by the State on the one hand, and sins not cognizable by a court of law on the other, was not yet so rigid in men's minds as it afterwards became. . . . The attempt to punish sin judicially lapsed after the Restoration and was never seriously renewed south of the Border."

In view of this, the only grounds upon which the prosecution of adult consenting homosexuals can be justified is not because what they do is morally wrong-a sin-but because the community is affected by such private acts. Can this be substantiated?

Sir William Norwood East, a former medical member of the Prison Commission argued (see Journal of Criminal Science, 1, 63) that the knowledge that the law did in fact punish such private acts had a deterrent effect and helped the invert to control his desire to engage in homosexual acts. Even if it could be proved that this was the effect of the law it would not justify its existence, for in no other instance does the law exist merely to help men to refrain from private immorality.

Sir William's argument might, however, be taken to imply that the law's treatment of homosexual private acts as criminal deterred men from 1 Le.: not anti-social. Incest is biologically and domestically anti-social.

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mattachine REVIEW

assaulting young people. If this were admitted, then there is an even stronger case for penalizing fornication and adultery, because of the damage to children that both so often cause. But in fact it is well known that the attitude of the law sometimes acts as an incentive rather than & deterrent to certain homosexuals, who get a psychological satisfaction from knowing the risks they run.

Can we find evidence of social injury caused by private homosexual acts which would validate the action of the law? It has been suggested that homosexual practices make a man of less use to society by rendering him secretive, undependable and nervous. In reality, however, these defects of character are due, not to homosexual practices, but to the fears of punishment or of blackmail engendered by the law. It is arguable that if legal reform removed the occasion of these fears, such blemishes of character would not be associated specially with the homosexual.

A third apparent anomaly in the law is seen in the different penalties attached to male and female importuning. A woman prostitute is liable to a maximum fine of £2: a male prostitute may be fined or imprisoned for 2 years as a "rogue and vagabond". This difference seems difficult to explain. It can hardly be that male importuning is taking place throughout the length and breadth of the country on a bigger scale than professional and amateur female prostitution; nor that male importuning constitutes a greater public nuisance than female prostitution. It may be alleged that male importuning more often involves the young person than does female prostitution, and that in order to protect boys and youths from seduction and from yielding to the temptation to 'tout' their services in order to get easy money, the law has to impose a penalty which acts as a real deterrent. It must be borne in mind, however, that the selling of the 'services' of the boy and the girl who are soliciting depends upon the desire of the 'customer' to buy what they, especially, have to sell (see page 110 (c)). We think that evidence concerning the comparative incidence, charac ter, and effect upon the young of male importuning and female prostitution needs to be authoritatively gathered and examined, and correlated with historical, sociological, and moral factors-e.g. the tendency in a male-dominated culture such as that of the West to ignore or tolerate female prostitution.

SUBSIDIARY CONSIDERATIONS

If grounds of justice indicate that the law in this respect should be changed, humanitarian reasons also lend reinforcement to such a step being taken.

(a) We have evidence which points to the suicide of men who have been charged with committing homosexual acts with an adult. The sense of shame at public exposure appears to be a motive. This sense of shame by itself would, of course, be no reason for changing the law; but if the law is unjust, then the longer it remains responsible for human tragedy, the more inexcusable does its retention become.

(b) A further consideration of the same type is the opportunity for blackmail which the present law affords. The young 'tout' or male prostitute offers himself for money, and being already a vicious person is able to threaten his companion with a report to the police that he has been seduced. A strong-minded man so threatened would himself go to the police, but a homosexual may be so conditioned to fear of the police

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