The Sexual Offences Act 1967. Part 2: Wolfenden’s silent women

So as we’ve heard, as well as being the 50th anniversary of the Sexual Offences Act, this year is the 60th anniversary of the Wolfenden Report which laid a lot of the groundwork for it.

So the committee on homosexual offences and prostitution, better known after its chairman Lord Wolfenden, published its report in 1957. The part of prostitution was largely focused on female prostitutes, but the part on homosexuality was focussed exclusively on male homosexuality. And I’m going to explore why it barely mentions women – it does slightly, but it barely mentions them – and suggest although the reasons may seem obvious, there’s more to that silence that we might first think.

So at first it seems really obvious that the report wouldn’t talk about women. After all, sexual activity between men was wholly criminalised, but there was no specific law against sexual activity between women. So it may seem obvious that the report would therefore make men its exclusive focus. But the reality was actual a bit more complex.

So Wolfenden’s terms of reference were to consider the law and practice relating to homosexual offences. The Government probably assumed male offences but that certainly wasn’t specified. The term ‘homosexual’ itself wasn’t illegal while it did appear in the law until the 1967 act. In fact the report included a table of homosexual offences in which it listed amongst the others ‘indecent assault on a female by a female’. That offence not only made non-consensual activity between women illegal, but also posed a nature of consent for example.

All the same the offence was dealt with and dismissed with a short paragraph in the report, which concluded: ‘we have however found no case in which a female has been convicted of an act with another female which exhibits the libidinous features that characterise acts between males’. What he was talking about was the actual prosecutions they looked at were most of the prosecutions against women of indecent assault. But because this is only one of two times it mentions women, the end result is it gives the impression that whatever women do, it’s not libidinous. And that’s kind of bubbling under the whole report.

The report didn’t consider nonsexual offences in relation to men or women; for example, public order offences were and are broad and unspecific, breached the peace and so on. They were certainly capable of encompassing any public sexual activity by women. Young women were also detained within the penal system on the grounds of moral danger. So in the 1960s girls were still being held for so-called ‘care and protection’ due to sexual misconduct. In 1960, just after the report came out, almost two thirds of girls who were committed to penal institution, so held in custody, had not been convicted of a criminal offence compared with about 5% of boys. So there was this kind of penal coercion of girls or women, but Wolfenden doesn’t touch on it.

So sexual activity between women wasn’t outside the law’s reach, but obviously the regulation was much more partial and piecemeal than the blanket criminalisation of sexual activity between men. So did that mean that no one in the Wolfenden Committee hearings felt the need to talk about it? If we look at the published report our answer would probably be yes, no one’s talked about it. But at The National Archives, as has been mentioned, we have the written memoranda which was submitted; we have the transcripts, files and files of transcripts, of oral evidence from various witnesses heard and questioned by the committee. When we have a look at what that says, a rather different picture emerges.

So first there was lots of evidence put forward which referred to sex between women. It came up again and again, both in expert evidence and in direct and indirect evidence from gay men themselves. So either gay men who had contact with the committee or who had spoken to bodies which then spoke to the committee. They’re referring to the law on sex between women all the time. So it appears in the expert evidence and it appears in the oral evidence, and that’s all here in the archives, and I think some of it is here at the back of the room.

So the Medical Women Federation wrote a lengthy analysis of sexual activity between women, which was included in the British Medical Association’s memorandum. A variety of other witnesses included shorter discussions and the committee members discussed the issue with witnesses in their closed oral questioning repeatedly. I’m not going to claim I’ve been in detail through all the files – there are a lot – but in just one of the five files of transcripts here, I found twelve different discussions, twelve separate meetings where sex between women was discussed, sometimes quite briefly but sometimes at some length.

So many of the witnesses emphasised the same point. This point kept coming up again and again. The inequality in the law between male homosexuals and lesbians. It was raised in experts’ submissions but it was also emphasised as a keenly felt unfairness amongst gay men themselves. As an anonymous homosexual medical practitioner asked, ‘by what principles of justice does the law of Britain permit female homosexuality whilst punishing with prison male homosexuality?’. Hugh Klare, Secretary of the Howard League for Penal Reform, stated that ‘this anomaly is really one that’s felt very strongly. Every single homosexual who came to see us drew attention to it. It is something that is intensely deeply felt by homosexuals themselves. I believe that every single one of them who came up to us, and some of them where guilty of other offences – they were not just homosexual offenders, brought this point out and obviously felt strongly about it’. His co-author, a prison visitor, Efi Baker added, ‘if it’s presented to the homosexual that there are moral reasons for ruling out homosexual conduct, that completely falls to the ground if it applies to only one sex and not the other’.

But the inequality was also emphasised from more establishment perspectives. For example, the Reverend Sherwin Butler, representing the Church of England Moral Welfare Council, argued that ‘same sex activity between both men and women was sinful, although that shouldn’t necessary mean that it should be criminal’. He went on, ‘it seems to us, again quite illogical, that lesbianism, which is almost as prevalent as male homosexual practices, should be excluded especially in view of the pastoral evidence that we have of the most undesirable effects, indeed socially more undesirable one might say, than acts between men’. And one of the committee members responded: ‘I would like to know a lot more about that’.

So the interest is there. He wasn’t alone in his curiosity. At various points when such evidence was raised the committee were particularly interested in trying to pin down the prevalence of lesbianism as compared to male homosexuality. Their thinking seemed to be that if they could say male homosexuality is a lot more common then that would be a justification for difference in the law. That wasn’t what they got from witnesses though. The evidence was really contradictory but a lot of witnesses were saying no one is more common than the other. So two doctors from the Tavistock Clinic pointed out that in their memorandum `we in fact stuck our necks out and said we regarded them as equally responsible. There should be considerable equality in treatment and from the point of view of social harm, the lesbian can do as much harm as the male homosexual’.

So there were two key related themes raised by multiple witnesses. First, lesbianism was as harmful as male homosexuality. There isn’t much to suggest that it might be okay let alone a good thing. But the harm is equal. The second theme is the difference in the law between female and male homosexuals was unjustified and unfair. So it’s this consistent theme throughout the evidence giving us the obvious question, well why is none of that in the final report?

Well again I’m going to suggest there are two reasons behind this. First, the basically practical one. To raise the issue of unfairness between women and men would have undermined the approach and the recommendations of the Wolfenden Report. But secondly, the silence about lesbianism was really not an accidental thing – it was deliberate policy within the English legal system, especially the criminal law. So here the report wasn’t going out on a limb it was following longstanding English tradition.

So to start with the first issue – Howard mentioning lesbianism undermined the report’s recommendations. Well quite simply because they were based on privacy not equality. Wolfenden never intended to radically disrupt the law; he was suggesting cautious reform of it. Advocating non-interference with private behaviour, however immoral or offensive that behaviour might be. So it’s okay in private but it’s not a good thing.

So the committee was very much not advocating equality. But that was exactly the standard that these witnesses were using. So today that makes sense to us, our recent political gains and legal gains have been on a basis of equality. So equal marriage, equal age of consent, the 2010 Equality Act, so equality discourse is really basic to it. That wasn’t what was going on in the 1950s as I think we’ve already got a strong sense. So press and politicians were condemning what they saw as an increase in homosexual behaviour. Even many who supported reform saw homosexuality as a problem, but a medical one rather than a criminal, legal one. There was so much hostility to even very modest legal reform that Wolfenden’s recommendation took ten years to make it into law. So total equality would never have stood a chance in fairness to the report.

So Wolfenden argued then not for equality but against criminalising a medical problem. By removing the criminal laws obstacles to research and treatment it was suggested partial decriminalisation of male homosexuality would not encourage it, but rather allow it to be better treated and controlled. So as Geoffrey Weeks has put it, ‘the unifying element between stricter legal controls of prostitution and a more liberal approach to male homosexuality was the belief that, by ceasing to be the guardian of private morality, the law would more effectively become the protector of public decency and order’. So it’s very much about public order. So for the report to repeat what the witnesses were saying about equality and the lack of equality would really have done nothing to support its recommendations. So the witnesses’ arguments that there was unjustified inequality were therefore silenced. And during the hearings as well when witnesses raised this, somebody or other from the committee would point out that if inequality was the issue we could make gross indecency between females a crime. And that would bring equality just as easily as decriminalising male homosexuality. So a very clear warning there. Try the equality route, it will be worse.

In fact the equality argument, the comparison does sneak into the report at one point, but not in the criminal context. Addressing the argument from some witnesses, notably the Law Society, the male homosexual behaviour has a damaging effect on family life. The report accepted it’s often true. With homosexual behaviour by husbands breaking up marriages or preventing a man from entering marriage at all. The committee deplore this danger to what we regard as the basic unit of society. But, they go on to say, ‘cases are also frequently encountered in which a marriage has been broken up by homosexual behaviour by the wife and no doubt some women too derive sufficient satisfaction of homosexual outlets to prevent them marrying. But they quickly go on to say ‘marriage is also disrupted by adultery and fornication and those are not criminal either’. So they very quickly say ‘and look, heterosexual things aren’t criminalised either, let’s compare gay men to homosexuals and not go down the equality route’.

So very careful then not to raise equality because that’s not their approach, but this idea that the best way to deal with sex between women is to say nothing about it is also a very long standing approach in English criminal law. The English criminal law has long dealt with sex between women primarily by keeping it a secret. To give some edited highlights of that approach, it’s based on the ideology, which we think of as a Victorian one but continues to be viewed, that women are naturally sexually passive and undesiring. In Wolfenden’s words `they are not libidinous as men are’.

So given that they are sexually passive then the idea is that, if they weren’t told about lesbianism, respectable women were unlikely to discover it for themselves. So the apocryphal story we’ve probably all heard is that gross indecency between women was never criminalised because Queen Victoria didn’t believe that women would do those things. It’s not true. A slightly more plausible but almost certainly equally untrue version is that no MPs wanted to have to explain them to her. Really it was more that nobody wanted to talk about it in public that it wasn’t criminalised.

However in 1921 Parliament did debate a proposal to criminalise gross indecency between women. I won’t go into detail here but in this 1921 discussion a number of MPs expressed the view that really the best way of controlling lesbianism is to keep it silent, and then women won’t find out about it if the male authorities don’t tell them. It was emphatically not because they thought that lesbianism was any more ok than male homosexuality. As Lieutenant Colonel Morbravesen vividly explained it, ‘there are only three ways of dealing with perverts: the first is the death sentence. That has been tried in old times and though drastic it does do what is required: that is, stamp them out. The second is to lock them up frankly as lunatics and lock them up for the rest of their lives. That is a very satisfactory way also – it gets rid of them. The third way is to leave them entirely alone, not notice them, not advertise them. That is the method that has been adopted in England for many hundred years’. So this is where the non-criminalisation of sex between women is coming from.

Through the 1920s we get the more famous case. The obscenity case brought in relation to Radcliffe Hall’s novel, ‘The Well of Loneliness’. It was deemed obscene because it was read as a plea for toleration of lesbianism. The obscenity wasn’t the mention of sex between women, which is vague to say the least, it was the idea that this was not an abomination. So the case aimed to keep that information away from women. It proved counterproductive in the short term because the publicity given to the case raised awareness of sexological theories of so-called inversion. But actually its wider cultural and legal impact in the following decades seems to have been fairly minimal to be honest. Through all of this we’ve also had feminism and the First World War, challenging ideologies of womanhood but nonetheless the idea of women as fundamentally psychically, morally and physically different from men still had great currency in the mid-20th century. So very normative, essentialist ideas of sex and gender and in particular this idea of the passionless, passive woman. So silencing continued to be a preferred response.

So in the armed forces lesbianism was a disciplinary offence. During the Second World War, a memorandum had been prepared by a woman medical advisor on the subject in 1941. However, the War Office told Wolfenden, it was only issued on request; it was not issued widely for fear of creating a problem by drawing attention to it. So again this idea that if we don’t tell women about it very few of them will find out.

The Committee itself wasn’t immune from this idea that you keep inappropriate sexual knowledge from women. As Brian Lewis has commented, ‘At the outset Committee members whimsically took to calling homosexuals and prostitutes `Huntleys and Palmers’ after the brand of biscuits. This practice apparently to spare the blushes of the female stenographers was relatively short-lived. The graphic nature of the witness statements would have made it redundant, because of course all these transcripts that we have are thanks to these women taking down the evidence. Even in the newspapers, whose sensationalist reporting of male homosexual cases had been one of the triggers for Wolfenden, it was pointed out that it was only in the 1950s that you start to get lesbianism reported and it’s not referred to in the press as homosexuality, but things like ‘perverted passion’, ‘improper association’ or ‘abnormal friendship’. And it’s only limited to the crime and divorce courts, although the 1950s divorce court also went to great lengths to find that, for example, a wife that had another very close friendship with a woman, which included sharing a bed and kissing on the mouth, had not been proved to be lesbian. So they’re still in something of denial. So legally and culturally then Wolfenden’s silence made a lot of sense. However, obviously ideologies are not realities and the Committee must have been well aware that the view they’re putting forward in the report was not reflecting reality.

So, to very briefly summarise, the report was proposing modest reform of the law on male homosexuality not radical change. It was about control and medicalisation rather than any kind of equality in gender. It was about protecting the private behaviour of respectable men, just as the policy of silence about lesbianism was aiming at regulating the activities of respectable women. So white, British, middle-class women were assumed not to know about lesbianism and not to be sexually desiring. The same wasn’t necessarily true of other women so lesbianism could be talked about as a contagion coming from lower class or foreign women. Just as one Wolfenden witness statement stated, ‘we do not take our morals from the continent’.

So the invisible woman of Wolfenden was implicitly the respectable white middle-class woman, the same section of society whose men formed the image of the male homosexual to whom Wolfenden gave it so very limited support. As Brian Lewis concludes, ‘The Committee did not solicit the point of view of the flamboyant queen, working-class trade, bisexuals and promiscuous cottagers. The right type of homosexual, in the right type of domestic social environment was going to get the nod and no one else’. So public legal and official discourse were primarily concerned with a very narrow section of society when it came to men and sometimes only by silence and implication to women as well.

So Wolfenden’s silences around women and sex between women didn’t reflect the reality of the evidence before the Committee but the archives here do allow us to go behind that published report and to re-evaluate the absence of lesbians and women in the report, and to see it wasn’t an accidental absence, even less one born out of ignorance of female homosexuality. It was a deliberate silencing based upon ideologies of sex, gender, race and class which informed the Wolfenden Report as a whole.