Sweeping the streets

190 years of The Spectator

6 September 1957

There are two ways of looking at sexual immorality. One is to regard all illicit intercourse as a crime; the other is to regard it as a sin but not as something which concerns the State unless it has obvious anti-social consequences. The first has been out of fashion since the 17th century, when adultery was still a capital offence, and in most civilised countries the second attitude now prevails. But in England for the last 80 years there has been one notable exception. Since the Criminal Law Amendment Act of 1885 homosexual actions between consenting males have been criminal, even when they are performed in private. This measure — the Labouchère amendment — was passed late at night without discussion and, possibly, by mistake. There is no doubt that the Wolfenden Committee (with one dissentient) is right to propose its repeal.

Whatever feelings of revulsion homosexual actions may arouse, the law on this point is utterly irrational and illogical. It is impossible to argue that homosexual actions between consenting males are more anti-social than adultery, fornication, or homosexual actions between consenting females, none of which are crimes. Not only is the law unjust in conception, it is almost inevitably unjust in practice. Save in very exceptional circumstances a prosecution can only be brought on the evidence of one of the parties concerned, who is necessarily as guilty as the party who is prosecuted. Indeed it was a particularly unfair prosecution of this sort which was largely responsible for the setting up of the Wolfenden Committee, and it is pleasantly ironical that the actions of those concerned in that case should have led to a recommendation that the law should be changed.