The Wolfenden Report

At the beginning of the 1950s, homosexual acts were still considered by British law to be criminal offences. The number of convictions rose rapidly in the immediate post-war period as the Home Office pursued prosecution more rigorously. At that time, homosexuality was also the subject of sensationalist reporting in the popular press, and there were a number of high profile cases involving public figures, such as the one mentioned in the film A Very British Sex Scandal. Also, in 1951, the Russian spies Donald MacLean and Guy Burgess, both known to be homosexual, defected to the USSR.

In 1954 the Home Secretary of the U.K. responded to prior requests to investigate the law relating to homosexuality (after a number of high profile arrests, including Sir John Gielgud, sensational trials, and a significant increase in the number of prosecutions for sodomy, indecent assault and gross indecency) by appointing a committee of 14 persons to investigate the law relating to homosexual offences and prostitution. The committee was headed by Sir John Wolfenden, then Vice Chancellor of the University of Reading.

A history of repression

Britain in general had a long tradition of very oppressive legislation against homosexuals, particularly sharpened towards the end of the 19th century. Very famous of course was the trial against Oscar Wilde, which was specifically a trial against offences under an act from 1885.

The Wolfenden Report was set up in an atmosphere of great hostility towards homosexuality in the 1950s. There was a great hoo-hah in the press against gay men, in particular - gay women did not figure into this, and it was not actually even illegal to be a lesbian.

Sir David Maxwell Fyfe (center) at the Nuremberg trials

David Maxwell-Fife, who was the Home Secretary in the second Churchill government, set up a committee to examine homosexuality presumably because he actually wanted to tighten legislation against homosexuality. He probably wanted to make things more repressive, which is quite interesting, because Maxwell-Fife actually has another background. He was very instrumental in drawing up the European Convention on Human Rights. That was part of his background. He came out of that Churchillian background of trying to impose greater human rights on a Europe which had so clearly infringed human rights. In the 1950s, there was not a great deal of awareness that some of the main victims of Nazi persecutions were actually gay men.

A surprising result

Sir John Wolfenden 

Maxwell-Fife was probably surprised when the Wolfenden Report came out, because looking at the composition of the committee, you would not have expected that outcome. The committee included, among others, two judges, a Foreign Office official, a Scottish Presbyterian minister, a Conservative MP, a consulting psychiatrist, the vice-president of the City of Glasgow Girl Guides, and a professor of moral theology.

So when the report came out recommending that homosexual acts between adults in private should be legalized, and the same rules should be applied to define what was private in the same way it was for heterosexual relationships.

The report was, in effect, set aside, because it was far too radical. But it came out in an atmosphere of great interest. It was in fact a best-seller; it had to be reprinted, which is very unusual for a government report. It had to be reprinted several times, and sold out.

Cases in the public eye

But it also came out in an environment where there was a growing awareness that perhaps, in certain parts of society, this was actually quite awkward. Some very well known people had been affected by the legislation against homosexuality, for instance Alan Turing, the chief code breaker at Bletchley, who basically designed and built the computer which enabled the country to break the German Enigma code. He was gay, and he was found out, and he was blackmailed into resigning and taking hormone treatment.  He killed himself in 1954.

Sir John Gielgud

This did not receive a great level of publicity, but there were other great famous names involved. A very famous example was Sir John Gielgud, who again in 1954 was involved in a trial where he and fellow peers and relatives of his were convicted for having had sex with working-class men.  Also, the sensational 1954 trial of the Montagu/Pitt-Rivers/Wildeblood case in which a peer (Lord Montagu of Beaulieu), his cousin (Michael Pitt-Rivers), and a journalist (Peter Wildeblood) were convicted of having sexual relations with young working class men and received sentences ranging from twelve to eighteen months imprisonment. In 1952, there had been 670 prosecutions in England for sodomy; 3,087 prosecutions for attempted sodomy or indecent assault; and 1,686 prosecutions for gross indecency.

The punishment meted out to individuals convicted of these offenses ranged from small fines to life imprisonment. Medical regimens, including aversion therapy and hormone treatments, were frequently forced on offenders as conditions for parole or probation.

Because of the great disparity in sentencing, along with the psychiatric belief that homosexuality might better be treated as an illness than a crime, as well as concern about the susceptibility of homosexuals to blackmail, worries about the use of entrapment by police officials, and a general hysteria about homosexuality in the popular press, two MPs in December 1953 called upon the government to set up a Royal Commission to investigate the law relating to homosexual offenses.

The fact that they were working class was probably something that was as worrying as the fact that they were men; this trangression both of gender and of class was of course also one of the aspects of the trial of Oscar Wilde. And there probably was a realization in certain parts of society that homosexuality was, in practice, not something you could legislate against. Indeed, the Wolfenden Report found that it could not be considered a disease, despite some of the most established medical advice.

Interestingly, despite the testimony of numerous psychiatrists and psychoanalysts, the committee refused to classify homosexuality as a mental illness requiring psychiatric intervention. It found that "homosexuality cannot legitimately be regarded as a disease, because in many cases it is the only symptom and is compatible with full mental health in other respects." It did, however, urge continued research into the causes and potential cures of homosexuality, such as hormone treatments and psychiatric therapy.

Aftermath of the Report

So there was this complex background, both a strong hostility to homosexuality, particularly in the popular press, and a growing awareness that actually it is not something you can just stop by legislation, which led up to the Sexual Offences Act 1967 under the government of Harold Wilson , and promoted by Roy Jenkins, which finally legalized sexual acts between adult males in private.

It is also interesting when you read the report that the members of the committee decided to do this because they thought it was in conformity with standard application of decent human behaviour as expressed in other human rights legislation. They could see that the state had no role in deciding what people did in private - because that was infringing general principles of human rights, as expressed for instance in the European Convention of Human Rights. They did not actually approve of homosexuality; the Report is quite explicit about that. Most of them quite clearly thought it was repugnant and repusive.

The Wolfenden Report recommended that "homosexual behaviour between consenting adults in private should no longer be a criminal offence", and it recommended that prostitution not be made a criminal offence. As it said:

"there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law's business. To say this is not to condone or encourage private immorality."

Note that the Report claims that consensual homosexual activity conducted in private is immoral. Further, the recommended age of consent was 21 years of age (as opposed to the age of 18 for marriage, and 16 for consensual heterosexual activity).

The Report argued that even though homosexual activity is immoral, nevertheless, the function of the criminal law is not to punish immorality, but instead to preserve order and decency:

"the function of the criminal law... 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, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical, official or economic dependence. 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 is necessary to carry out the purposes of we have outlined."

One way of understanding this argument, then, is to say that so long as immoral activity does not interfere with public order and decency, so long as immoral activity is not "offensive or injurious", it should be ignored by the law.

The recommendations of the Report were not, in fact, acted upon by the Government. Only years later, in 1967, did the Government pass the Sexual Offences Act, by a very narrow margin, which replaced the 1861 Offences Against the Person Act. Even then the law applied only to England and Wales. That was changed in 1980. The age of consent remained at 21 years until 1994, when it was reduced to 18, and then in 2000 it was reduced to 16 years of age.

The important lesson

I think that perhaps the most important aspect of the Report is that of privacy and the call for government not to impose one person or group's morality on another. Here we have a group of people who say: We do not like this; but we recognize that rights apply even to people who we do not like.

And that is perhaps the main test for how good we are at applying human rights: are we able to give human rights to those people whom we like the least? So this last point is one of the reasons that I really think the Wolfenden Report is very important. Obviously as a gay man I have a private interest in it as well; but I think it is the general ability to say that people whom we do not like have the same rights as us which is really important.  It takes courage to do this, but it is what we should do: treat others as we would like to be treated.

SOURCES: 

• http://en.wikipedia.org/wiki/Wolfenden_report
• http://www.bl.uk/onlinegallery/takingliberties/staritems/619wolfendenreportaudio.html
• http://home.wlu.edu/~mahonj/PhilLawLecture4.htm
• http://www.glbtq.com/social-sciences/wolfenden_report.html
• http://www.nationalarchives.gov.uk/cabinetpapers/themes/before-after-wolfenden-report.htm
• http://philosopedia.org/index.php/Wolfenden_Report