Aug 01, 2007
Commentary: Fortieth Anniversary of Legal Gay Sex?
There have been ‘celebrations’ in the past week to mark the 40th anniversary of the what has been described as “the decriminalisation of homosexuality” in England and Wales. It was on July 27, 1967, that the Sexual Offences Act received the Royal Assent. But this Act only partially decriminalised homosexuality. “Many people assume that the 1967 Sexual Offences Act legalised homosexuality – it didn’t,” says Peter Tatchell, the gay human rights activist from Outrage! “The pre-1967 laws against gay sex – Sections 12 and 13 of the 1956 Sexual Offences Act – were never repealed and they remained on the statute books until either1997 or 2003,” he pointed out.
In an article written in 1997 for the 30th anniversary of the Sexual Offences Act, Mr. Tatchell wrote:
This critical view of decriminalisation has since been amply confirmed. In the 1980s alone, there were over 20,000 convictions for the predominantly gay and consensual offences of “buggery”, “gross indecency”, “soliciting” and “procuring”. Most of these men would never have been arrested if their partner had been a woman, since comparable heterosexual behaviour is either not a crime or is rarely prosecuted.
So what did the Act of 1967 actually do? It decriminalised homosexuality only when it involved consenting men aged 21 or over and in private.
The age has since been altered by legislation – reduced to 18 in 1994 when Conservative MP Edwina Curry tabled an amendment in the House of Commons to lower the age of consent to 16 – the same as for heterosexuals.
One of her biggest supporters of the amendment was the then Labour shadow home secretary who told the Commons on February 21, 1994: “People are entitled to think that homosexuality is wrong, but they are not entitled to use the criminal law to force that view upon others. A society that has learned, over time, racial and sexual equality can surely come to terms with equality of sexuality. That is the moral case for change tonight. It is our chance to welcome people – I do not care whether there are 50,000, 500,000 or 5 million; it matters not a damn – into full membership of our society on equal terms. It is our chance to do good, and we should take it.”
He was the Member for Sedgefield, Tony Blair.
Edwina Curry’s amendment failed, but a compromise was reached at 18.
The age of consent for homosexuals was finally lowered to 16 after a bitter fight between the House of Commons and the unelected House of Lord – and the intervention of the European Court of Human Rights.
But why were most non-celibate gay men “criminals” up to 30, or even 36, years after the partial decriminalisation of homosexuality?
Gay sex between two consenting adult men, the 1967 Act says, was only legal when the act was “in private”.
As Mr. Tatchell points out: “the legal definition of private was much stricter for homosexual relations than for heterosexual acts”.
A private house, for example, was not “private” if two men were in a bedroom having sex and there is another person or persons in other rooms in the same house.
Three men – or more – having consensual sex remained illegal – and even two men having sex with another person present but not taking part was, too.
So, the Sexual Offences Act of 1967 was very limited in what it actually decriminalised.
Another aspect where gay men were constantly breaking the law was in the area of looking for sex. Even such gay ‘dating’ websites as Gaydar and Gay.com were technically illegal until the Sexual Offences Act 2003 came into force and swept away the last remaining anomalies. So, while gay sex, albeit in private, was legal under the 1967 Act, seeking sex was not.
While the 1967 Act was welcome at the time and the Harold Wilson Government can at least take the credit of “blowing the dust” off reports on homosexuality (which were first commissioned by Churchill at the end of the Second World War and duly shelved) and doing something, it was the Blair administration that really got to grips with the legal aspect of homosexuality, which carried the death sentence until the mid-nineteenth century when the threat of hanging was removed and the laws against homosexuality – applicable to men only – were made more dcaconian..
Click here to read Peter Tatchell’s interesting 1997 article Still Criminal After 30 Years. But please bear in mind that most of what he wrote then about the law has now been repealed.