The publication of the Wolfenden Report in 1957 was a landmark in the movement that led to the destigmatization of homosexuality across the Western world in that it brought about the decriminalization of male homosexuality in England and Wales in 1967. The repeal of the Criminal Law Amendment Act 1885 (48 & 49 Vict. c.69) accomplished this. Section 11 of the Act, in particular the clause known as the Labouchere Amendment, applied to male homosexuality. In short, the clause provided for a term of imprisonment “not exceeding two years”, with or without hard labour, for any man found guilty of “gross indecency” with another male, whether “in public or in private”. In 1953 the Home Secretary, David Maxwell Fyffe, referred to male homosexuality as a “plague over England,” and vowed to wipe it out. In 1954, the Departmental Committee on Homosexual Offences and Prostitution was convened with John Wolfenden appointed chairman.
The Labouchere Amendment though enforced sparingly and selectively. However, the consequences of arrest and conviction could be devastating. John Gielgud very nearly saw his career as an actor come to an abrupt end in 1953 when a scandal arose over his arrest for ‘persistently importuning male persons for immoral purposes’ (he was caught trying to pick up a man in a public washroom). He was fined £10 and news of the arrest found its way to the press, causing him a most personal humiliation and refusal of a visa to travel to the United States with his company to perform Shakespeare’s The Tempest. Gielgud was fortunate in that the theatre going public saw fit to forgive his momentary indiscretion and he continued his acting career both in the United Kingdom and in the United States.
The Departmental Committee on Homosexual Offences and Prostitution heard evidence from a number of witnesses, including police and probation officers, psychiatrists, religious leaders, and gay men whose lives had been affected by the law. The Report of the Departmental Committee on Homosexual Offences and Prostitution (commonly known as the Wolfenden Report) was published in 1957. In brief, the recommendations included in the Wolfenden Report asserted:
homosexual behaviour between consenting adults in private should no longer be a criminal offence […] The law’s function is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others […] It is not, in our view, the function of the law to intervene in the private life of citizens, or to seek to enforce any particular pattern of behaviour. (Wolfenden Report as cited in Wikipedia)
The argument advanced in the Wolfenden Report favouring the decriminalization of homosexual behaviour between consenting adults in private was originally articulated by the philosopher Jeremy Bentham in his essay Offences Against Oneself. Though Bentham penned the essay about 1785, its first publication came, posthumously, in 1931. Bentham thought homosexuality, as Jeffrey Weeks notes, “an ‘imaginary offence’ dependent on changing concepts of taste and morality.” (Wolfenden and beyond: the remaking of homosexual history) Bentham thought through the issue and reasoned:
To what class of offences shall we refer these irregularities of the venereal appetite which are stiled [sic] unnatural? When hidden from the public eye there could be no colour for placing them any where else: could they find a place any where it would be here. I have been tormenting myself for years to find if possible a sufficient ground for treating them with the severity with which they are treated at this time of day by all European nations: but upon the principle utility I can find none. (Offences Against Oneself)
By the principle of utility, Bentham refers to the school of philosophy known as Utilitarianism. In brief, Utilitarianism upholds “the belief that the right course of action is the one that will produce the greatest happiness of the greatest number of people.” (Oxford Learner’s Dictionaries) John Stuart Mill, a successor to Bentham, advocated for personal liberty of the individual in society positing:
The only freedom which deserves the name is that of pursuing our own good in our own way, we shouldn’t attempt to deprive others of theirs, or impede their efforts to obtain it. Each is the guardian of his own health, whether bodily, or mental or spiritual. Mankind gains by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest. (As cited in the Libertarian Party of San Francisco)
In the publication of his essay On Liberty in 1859, Mill argued that there be strict limits on state power concerning personal liberty, maintaining, “[T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” (Philosophy Pages)
The recommendation in the Wolfenden Report that homosexual behaviour between consenting adults in private should no longer be a criminal offence, based on the Utilitarian argument and the right to “privacy of morality,” ignited a debate that continues in the present regarding the role of the state in reinforcing the “moral norms” of society. The question then as now for critics of the recommendation remains. Is the decriminalization and destigmatization of homosexuality a matter of personal liberty? Alternatively, is it simply promoting libertinism? Lord Devlin, a noted British jurist and critic of the Wolfenden Report, argued in The Enforcement of Morals, published in 1959:
Societies disintegrate from within more frequently than they are broken up by external pressures. There is disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration, so that society is justified in taking some steps to preserve its moral code as it does to preserve its government […] the suppression of vice is as much the law’s business as the suppression of subversive activities. (Hart-Devlin Debate)
Notwithstanding Lord Devlin’s misgivings, the British government saw fit to repeal the Criminal Law Amendment Act 1885 (48 & 49 Vict. c.69) in 1967, as noted above. Interestingly, in Canada the Liberal government of Prime Minister Pierre Elliott Trudeau passed, in 1969, the Criminal Law Amendment Act, 1968-69 (S.C. 1968-69, c. 38), which, among other things, decriminalized homosexuality. Then Minister of Justice, Pierre Elliott Trudeau in the government of Prime Minister Lester Pearson, introduced the legislation in parliament in 1967. In doing so, he applied the reasoning employed in the Wolfenden Report in making its recommendation that homosexual behaviour between consenting adults in private should no longer be a criminal offence. He famously observed in defending this provision of the legislation, “obviously, the state’s responsibility should be to legislate rules for a well-ordered society. It has no right or duty to creep into the bedrooms of the nation.” (CBC Archives)
Following the decriminalization of homosexuality in England and Wales in 1967 and in Canada in 1969, the disintegration of society Lord Devlin feared, did not happen. In the present, gay people in Canada and the United Kingdom take their place in society, pursuing their own good in their own way, just as any other citizen. They embrace the conventions of marriage and marital privacy, forming long-term relationships and now have the right to marry. The Civil Marriage Act, enacted in Canada in 2005 by the Liberal government of Prime Minister Paul Martin, legalized same sex marriage. Legislation allowing for same sex marriage in England and Wales came into force on March 13, 2014. This is a fitting legacy for the authors of the Wolfenden Report who were spot on in their recommendation regarding the decriminalization of homosexuality in England and Wales. In England and Wales and Canada, the decriminalization of homosexuality does indeed provide for the greatest happiness of the greatest number of people.
Posted by Geoffrey