60th anniversary of Wolfenden recommending partial decriminalisation
By Peter Tatchell
The Observer – London, UK – 20 August 2017
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September 4 marks the 60th anniversary of the 1957 Wolfenden Report, which recommended an end to the total ban on male homosexuality. Although it was groundbreaking and led to subsequent gay law reform in 1967, it was also flawed.
John Wolfenden, who chaired the committee that produced the report, is often hailed as a great liberal reformer. But he opposed homosexual equality and obstructed fellow committee members who proposed a more far-reaching decriminalisation.
A cautious conservative, he described homosexuality as “morally repugnant” on the BBC TV programme Press Conference. He wanted only small changes in the law.
His opinions dominated the committee’s deliberations, which suggested that homosexuality was partly a matter of self-control, comparable to “the extent to which coughing can be controlled.” Such attitudes contributed to the subsequent half-baked, partial decriminalisation of sex between men ten years later.
Gay rights veterans, Antony Grey and Allan Horsfall, who campaigned in the 1960s for the implementation of the report, believed it was more restrictive than it could have been but that it gave the gay community a valuable springboard from which to campaign for law reform.
Wolfenden argued, commendably, that what is deemed by many people to be immoral (homosexuality) should not necessarily be criminal; that the law should not dictate private morality. He proposed that homosexual behaviour should not be prosecuted, providing it took place in private, with consent and involved no more than two men, both aged aged 21 or over. There was never any question of legalising same-sex acts.
The report did not urge the repeal of anti-gay laws; merely a policy of non-prosecution in certain circumstances. The existing often centuries-old laws were to remain on the statute book under the heading, “Unnatural offences.”
This advocacy of limited decriminalisation was a de facto reiteration of support for anti-gay discrimination in law.
As well as proposing a gay age of consent five years higher than the heterosexual limit of 16, Wolfenden recommended that in the case of a man aged 21 or over who was convicted of consenting oral sex or masturbation with a 16-21 year-old male the maximum penality should be increased from two to five years.
These homophobic proposals were incorporated into the subsequent law reform, the 1967 Sexual Offences Act.
Home Office transcripts of the internal deliberations of the Wolfenden Committee provide an insight into the thinking of John Wolfenden and other members; revealing a battle between those like him who wanted little change in the law and others who were more critical of the way the criminal justice system treated gay and bisexual men.
Wolfenden was often an obstacle to progressive recommendations. On three key issues, he played a negative role.
When committee members discussed the age of consent, Wolfenden was aghast to discover that seven wanted 18, one advocated 17 and only three supported his proposal of 21.
In a committee session in 1955, Wolfenden indicated his belief that young men could seduced and corrupted into homosexuality. He was adamant that he would never put his name to a report recommending anything other than 21 as the age of consent. He over-rode the majority who favoured a lower age limit.
Equally shocking, Wolfenden wanted to keep anal sex totally illegal in all circumstances, even between consenting adults in private. He also supported retaining the option of punishing “serious cases” of anal sex with life imprisonment.
Wolfenden watered down criticism of the police by fellow committee members, exonerating officers over their use of agents provocateurs in parks and toilets. Defending the police, his report insisted that the committee was “on the whole favourably impressed” by the way officers carried out their “unpleasant task.”
His sanction of police undercover operations as “legitimate” gave them the nod of approval. If he had exposed and condemned such tactics instead, police entrapment may have declined (rather than subsequently increasing), and thousands of gay and bisexual men might have been spared arrest.
There were omissions too. He did not recommend the decriminalisation of the invitation and facilitation of homosexual acts nor of the crime of men chatting up each other in public.
Although Wolfenden’s proposals were flawed, he set Britain on the path to gay law reform. That was progress.