Roger Davidson & Gayle Davis. Twentieth Century British History. Volume 15, Issue 2. June 2004.
Introduction
The proceedings and report of the Wolfenden Committee on Prostitution and Homosexual Offences (1954-7) command a prominent position in the historiography of the sexual politics of late twentieth-century Britain, and of homosexual politics in particular. Two broad strands of interpretation may be detected within the literature. For commentators such as Jeffrey Weeks, while conceding its limitations, the Wolfenden Report ‘was a crucial moment in the evolution of liberal moral attitudes’, offering the ‘outline of a new moral economy’, which was to underpin ‘the limited, but symbolically significant, reforms of the 1960s’, and to provide ‘the framework for all the major “official” proposals on morality throughout the 1970s’. Indeed, the report’s separation of the law and morality in the governance of sexual behaviour is viewed as marking ‘an historic shift in the mode of regulation of civil society’. More specifically, many historians perceive the Committee, and the associated debate in Parliament and the media, as a watershed in the public awareness of ‘homosexuality’ that was to be vital in the creation of a climate of opinion more receptive to law reform in the 1960s.
Another group of social and legal historians focus more upon the coercive and regulatory implications of the proceedings and report of the Wolfenden Committee, often within a Foucauldian framework of analysis. Thus, for Frank Mort, one of its most significant features was its codification of a ‘new geography of sexuality’ which delineated ‘the sanctioned spaces within which homosexuality might be tolerated’. According to Mort, privileging the ‘voice of the expert witness over the moral campaigner’, the Committee ‘embarked on extensive classification of contemporary sexual pathologies, conducted in the language of legal and professional regulation’. Accordingly, it drew upon not only the traditional expertise of medicine and the law, but also the newer specialties of psychiatry and psychoanalysis ‘in the interests of productive surveillance’. Similarly, Leslie Moran, in his legal analysis of the proceedings, focuses on how the evidence and report of the Wolfenden Committee formally introduced ‘homosexual’ into the discourse of English law, arguing that it heralded a ‘new and radical departure from past practice’, and created a new category through which the legal process might perceive, articulate, and regulate homosexual behaviour. Other commentators, such as Richard Davenport-Hines and Tim Newburn, also stress the more illiberal aspects of the final report as reflected in its impact on public discourse and the 1967 Sexual Offences Act. They emphasize the regressive effects of the debate on the social labelling of homosexuals, and the very limited extent to which the utilitarian criteria adopted by the Committee, and its taxonomy of ‘public’ and ‘private’, advanced the social recognition of homosexuality.
However, in the main, existing research has centred on the social politics of the Wolfenden Committee at a national level in Westminster and Whitehall, and its implications for sexual law reform in England, and there is a notable lack of regional studies. It is important to recognize that, while its proceedings may have focused on metropolitan concerns south of the Border, they also involved a Scottish dimension. Both written and oral evidence was presented to the Committee by a range of Scottish civil servants, law officers, medical experts, and social workers; evidence that was shaped by the distinctive traditions of law, local government, and medical practice in Scotland, as well as arguably a distinctive civic and sexual culture.
This article has five main objectives. First, it utilizes this evidence to document the existing legal and medical provisions for the treatment of ‘homosexual offences’ in mid-twentieth-century Scotland. Secondly, it investigates the forces and arguments both for and against the decriminalization of homosexual practices as revealed in the Scottish testimony to the Committee. Thirdly, it documents the views of the three Scottish members of the Wolfenden Committee in relation to its final report, and focuses in particular on the ideology and enduring influence of James Adair and his virulent opposition to its recommendation for the decriminalization of consensual homosexual practices in private. The article then surveys the wide-ranging opposition within Scottish civil society to such reform in Scotland in the decade following the Wolfenden Report, culminating in the exclusion of Scotland, along with Northern Ireland, from the 1967 Sexual Offences Act. In conclusion, it seeks briefly to assess the implications of the Scottish experience for any historical interpretation of the Wolfenden Committee and its role in the developing relationship between sexuality and the State.
The Prosecution and Treatment of Homosexual Offences
Details of the law relating to homosexual offences in Scotland in the mid-1950s, as revealed in evidence to the Wolfenden Committee, are set out in Table 1 with the associated tariff of punishments.
Under Scots Law, as in England and Wales, homosexual behaviour between males was an offence, although in Scotland the majority of offences were prosecuted under common law rather than statute law. The more serious cases were tried in the Sheriff Court or High Court, while minor acts of indecency were dealt with as police offences in Burgh Courts under the Burgh Police (Scotland) Act of 1892. In addition, many Scottish Burghs had the power to make bye-laws to prevent ‘nuisances’, and these were commonly employed to prevent soliciting. Thus, in Edinburgh, ‘cottaging’ was proceeded against under the Cleansing Bye-laws, which stipulated that: ‘No person shall loiter in a public convenience or use the same for any purpose other than as a lavatory or toilet apartment.’ All cases of indecency where boys were involved were referred to the Lord Advocate’s Department to determine the level of court proceedings. Where one of the parties was under 16, only the elder of the parties would be proceeded against, normally under Common Law. The sentences imposed for homosexual offences in Scotland were generally lighter than those imposed in England and Wales. Only 72 per cent of those convicted of sodomy and 20 per cent of those convicted of gross indecency incurred prison sentences, and such sentences were often of a year or less.
Within the Scottish prison system, there was no general policy of segregating homosexual offenders. However, they were debarred from transfer to open prisons and efforts were made to allocate them separate accommodation where acute overcrowding prevailed. The Scottish Prison Department also admitted that ‘passive homosexuals’ were kept under unobtrusive attention by the staff and were, if possible, posted to work parties which could be closely supervised. Similarly, if an inmate of a borstal was suspected of homosexual tendencies, he might be allocated a single bedroom or transferred either to a particular training house or very occasionally to a closed institution.
Evidence varies as to the extent to which medical considerations played a part in the sentencing of homosexual offenders. James Adair, former Procurator-Fiscal for Edinburgh and Glasgow, was of the opinion that: ‘Some judges were very responsive to suggestions by medical men about treatment, while others agreed that these were not the concern of the judge.’ Certainly, under the Criminal Justice (Scotland) Act of 1949, courts had explicit powers both to call for medical reports on offenders and to prescribe medical treatment as part of a probationary sentence. Thus, an offender could, with his consent, be required under a probation order to undertake remedial treatment either as a resident or non-resident of an institution or as a patient of a named doctor. Some legal witnesses before the Wolfenden Committee considered that there was an increasing trend in Scottish Courts for medical reports to be used in cases involving homosexual offences and that the practice was ‘much more the custom in Scotland than in England’. Dr W. Boyd, Consultant Psychiatrist to the Scottish Prison and Borstal Service, testified that he was:
in charge of a Mental Health Service where both the Procurators Fiscal and the Sheriffs were willing to recognise that we could have cooperation, and many of them [offenders] were placed on probation on the condition that they attended hospital.
In line with the recommendation of the Scottish Advisory Committee on the Treatment and Rehabilitation of Offenders that psychotherapeutic and other medical treatment should be more widely available for convicted sexual offenders, the Scottish Home Department had, by the mid-1950s, begun to expand psychiatric provisions within the Scottish prison system. The Department recommended that all male prisoners convicted of sexual offences, including homosexual offences, should be interviewed at some point by a psychiatrist and that, if the offender was suitable for treatment and was willing to undergo it during his sentence, he should be admitted to a psychiatric hospital as an in-patient or given treatment at a psychiatric clinic as an out-patient. Similar psychiatric examination and treatment was, in theory at least, available for all male borstal inmates. However, Dr Inch, Medical Adviser to the Scottish Prison and Borstal Services, maintained that the resources for treatment within Scottish prisons remained ‘pitifully inadequate’ and ‘barely scratching the surface of the problem’. Apart from Barlinnie, where a new medical psychiatric unit was being built, there were no special psychotherapeutic units in Scotland such as existed at Wormwood Scrubs and Wakefield, and many of the prisons were too small to justify in-house psychiatric provisions.
Scotland varied from England and Wales in the type of prison treatment administered to convicted homosexual offenders. According to the evidence of Scottish Prison Medical Officers, no use was made of electroconvulsive therapy in Scottish prisons. Narco-analysis (psychoanalysis undertaken during a light phase of anaesthesia) had been used to a limited extent during the war but had been deemed unsuited to ‘civil life’. However, in contrast to England and Wales, where the practice had been discontinued as too dangerous, oestrogen treatment had been used in Scottish prisons on sexual offenders for some time. It was only given to prisoners who signed an agreement to the procedure, and then only under strict medical supervision. According to Inch, oestrogen treatment had never been pushed ‘to its limits’—‘to the extent of producing atrophy of the testicles or gynaecomastia—but only to the point of eliminating or at least greatly reducing libido’. The prime objective was to make the prisoners less anxious and more ‘adaptable’. Significantly, such treatment regimes were not public knowledge. According to Inch, the Scottish Prison Service had ‘never said anything’. ‘We have,’ he noted, ‘just kept very quiet about it.’
The proceedings of the Wolfenden Committee furnish clear evidence of the Scottish police taking proactive measures against homosexuals in the early 1950s. Thus, the bulk of prosecutions under Section 11 of the Criminal Law Amendment Act for gross indecency were based on plain-clothed police observations on public lavatories. In Edinburgh, in cases where the police were unable to secure the necessary ‘place of concealment’ to prosecute under the Act, they made regular use of the local Cleansing Bye-laws to penalize ‘cottaging’. In Glasgow, there was a vigorous campaign to eliminate it. Lavatories were closed down or upgraded with attendants, and the Procurator-Fiscal ordered that all such cases should be referred to the Sheriff Court rather than the lower Burgh Courts so that more serious charges might be brought. Some witnesses clearly considered that there was a greater targeting of homosexual activities in recent years. Indeed, during the media coverage of homosexual lifestyles in 1958, the Daily Herald later reported on a homosexual who had been forced to flee from Edinburgh to London due to ‘a police clamp-down’.
Nonetheless, there were distinctive features of the criminal procedures in Scotland which minimized the number of men prosecuted for homosexual offences in private with consenting adult partners. First, as all serious proceedings were instigated and the level of hearing determined not by the police, but by the public prosecutor—the Procurator-fiscal—‘in the public interest’, there was much greater uniformity of prosecution and sentencing. Secondly, as no proceedings could be initiated in respect of any statutory offence more than 6 months old in any court of summary jurisdiction, and older cases had to be reported to the Crown Office before proceedings could be brought, there was an automatic constraint on the prosecution of ‘stale’ offences, in contrast to the practice in many areas of England and Wales. Thus, in Scotland, even when criminal proceedings produced evidence of past homosexual behaviour, where it was evident that such behaviour was no longer ‘active’, charges were rarely brought.28 Thirdly, in Scotland, a higher standard of proof was required. No person could be convicted of any homosexual offence unless there was evidence of a least two witnesses implicating the person with the commission of the offence, or corroboration of one witness by irrefutable evidence. As a result, it was rarely possible to secure the necessary evidence with which to prosecute homosexual acts performed in private and between consenting adults. Moreover, while a written statement of guilt constituted corroboration, it was rarely elicited under Scottish legal proceedings. The police were not entitled to question a person with the object of causing him to incriminate himself and were not allowed to question a suspect after he had been cautioned. As a result, whereas in England and Wales some 94 per cent of men convicted for homosexual offences in the period 1953-6 were prosecuted on the basis of a written confession, this applied to only 11 per cent of such cases in Scotland.
Moreover, in view of the high standard of proof required by the Scottish Criminal Law, the Lord Advocate’s Department had for many years adopted a policy of not prosecuting homosexual acts between consenting adults in private. There were occasional exceptions but, in the main, the Crown Office focused on offences committed in public places, especially in toilets, cinemas, or parks, or on offences involving the seduction or ‘debauching of the young’; an aspect of Scottish prosecution policy that was to prove central to the delay in homosexual law reform north of the Border.
Proponents of De-Criminalization
As Patrick Higgins has rightly observed: ‘It is not accurate to portray the arguments made before the Wolfenden Committee as a clash between reformers and reactionaries’ because the overwhelming majority of witnesses favoured ‘the reduction, and hopefully one day the elimination, of male homosexuality’. However, there were Scottish witnesses who strongly advocated the decriminalization of homosexual behaviour. Thus, a representative of the moral purity movement urged that, while the law should always protect the young, it should not interfere with the personal morals of consenting adults, as this merely created a ‘blackmailer’s charter’ and a ‘police des moeurs’ with duties that were ‘ugly, degrading and demoralising’. In her view, accusations of ‘unnatural vice’ were equally applicable to ‘extravagances’ within heterosexual relationships. Similar views were expressed by Sheriff A. G. Walker. He favoured placing consenting homosexual acts in private between men over 25 ‘on the same legal base as adultery and fornication’. This would, in his view, ‘enable the adult homosexual … to work out his difficult problems … in accordance with his own conscience and the religious or moral code to which he subscribe[d]’ without the additional distraction of the fear of prosecution. At the same time, the full weight of the criminal law could be focused on the protection of boys and young men from predatory adults.
The fullest and most compelling evidence in favour of homosexual law reform came from medical witnesses. Perhaps the most influential evidence was that submitted by Drs T. D. Inch and W. Boyd, respectively Medical Adviser and Consultant Psychiatrist to the Scottish Prisons and Borstal Services. Echoing the previous recommendations of the Scottish Advisory Council on the Treatment and Rehabilitation of Offenders, they aired serious doubts as to the value of imprisonment in reforming sexual offenders and favoured decriminalization of homosexual behaviour for consenting adults over 21. In their view, a range of alternative provisions was necessary. There needed to be more child guidance and child psychiatric clinics to ‘treat deviation as early as possible before fixation occurred’. Courts should have routine psychiatric reports on all homosexual offenders prior to sentencing, supplied by a properly staffed University or Regional Hospital Board clinic, and more extensive use needed to be made of probationary orders for treatment of first offenders under the 1949 Criminal Justice (Scotland) Act. For the homosexual recidivist, or ‘homosexual psychopath’, there should be a separate psychopathic institute, as in Denmark. Finally, treatment regimes had to be more effectively monitored and sustained by means of improved staff resourcing for aftercare and social work. Underlying their evidence was a belief that a less punitive policy would in fact produce a more liberal and sympathetic attitude to homosexuality in British society.
Evidence submitted by Drs Winifred Rushforth and W. P. Kreamer, respectively founder and Medical Director of the pioneering Davidson Clinic in Edinburgh, established in 1940 to provide psychotherapeutic treatment to the general public, also favoured the decriminalization of homosexual behaviour between consenting adults as integral to changing social attitudes and to a refocusing of public debate onto issues of aetiology rather than punishment. Their case studies provided compelling evidence of the high incidence of blackmail experienced by homosexuals under existing law. Moreover, they considered that imprisonment merely reinforced the mental and social problems of homosexuals, and should only be used for ‘hardened offenders’ who were ‘a potential danger to young people’. They did not feel that prison predisposed homosexual offenders to effective treatment, and viewed the existing prison medical staff as unsuited to addressing sexual problems. At the very least, they advocated the general introduction of group psychotherapy for offenders. However, significantly, their evidence still identified homosexuals as fundamentally dysfunctional and antisocial, and, in part, their opposition to legal coercion was that it served merely to magnify not only the homosexual’s sense of social isolation but also his sexual ego. As Dr Kreamer testified:
I feel that if we make them into heroes and put them into prisons, … it is not really doing very much good, and it gives them a wrong idea of self-importance … [I]f you do that I feel it is bad for society and for the character of these men, too.
In his view, many of such ‘young heroes want[ed] to suck forbidden fruit’ and prosecution often served to fuel a neurotic compulsion for punishment.
In his contribution to the BMA evidence to the Wolfenden Committee, John Glaister, Regius Professor of Forensic Medicine in the University of Glasgow, also conflated a somewhat pathological view of homosexuality with support for its limited decriminalization. He was a vigorous supporter of coercive measures, including segregation in colonies, for ‘the inveterate and degenerate sodomist, the debauchers of youth, and those who resort[ed] to violence to meet their desires’. Likewise, he endorsed a ‘major attack by the law’ on ‘the confirmed invert and the male prostitute’. However, he did not feel that the incidence of homosexuality threatened the nation with ‘racial decadence’, and considered that consenting acts of adults in private (not including sodomy) were a matter ‘of private ethics’ and should be outwith the law. In his opinion, while society’s disapproval was ‘inevitable and desirable’, and while homosexuality was certainly not something that should be encouraged, incarceration was not the answer in the majority of cases which involved minor offences. Glaister viewed prison as ‘the last place for homosexual treatment’. On the contrary, he emphasized its propensity ‘to incubate and foster homosexual tendencies’. Moreover, he also considered that the risk of prosecution often acted as an aphrodisiac for offenders. ‘Many homosexuals,’ he averred, ‘feel that to flout the law is fraught with adventure due to possible detection, and to their peculiar make-up this may tend to add a filip to their sex life.’
Proponents of the Status Quo
However, the overwhelming consensus of Scottish evidence before the Wolfenden Committee was opposed to the decriminalization of homosexual acts between consenting adults. In particular, two central and somewhat inconsistent arguments were advanced in favour of the status quo: first, that, in part because of its more demanding procedures relating to evidence and prosecution, the recorded incidence of homosexual offences in Scotland was comparatively low and did not constitute a ‘problem’; and secondly, that the bulk of Scottish professional and public opinion was, in any case, fundamentally opposed to any liberalization of the law.
As the Wolfenden Committee concluded: ‘There was no precise information about the number of men in Great Britain who either [had] a homosexual disposition or engage[d] in homosexual behaviour.’ In Scotland, the problem of establishing the incidence of homosexual offences was compounded by the fact that the criminal statistics did not distinguish, as regards indecent assaults and lewd and libidinous practices, between offences committed with a male and those committed with a female. No statistics were available in respect of gross indecency between males under Section 11 of the 1885 Criminal Law Amendment Act prior to 1951, and there was therefore no basis for a historical comparison of the incidence of homosexual offences in Scotland with their incidence south of the Border.
Witnesses were in no doubt that homosexuality and homosexual practices existed in Scottish society. Scottish law officers made reference to ‘habitual loci’ for homosexual practices, ‘some of long standing’, including Glasgow Green and Calton Hill in Edinburgh, in addition to the regular use of certain public lavatories. A number of blackmail and murder cases relating to homosexuality were also cited as evidence of its existence and vulnerability to exploitation by criminal elements. In addition, several witnesses expressed a more nebulous fear that substantially more homosexual behaviour was lurking just below the surface of Scottish society. Thus, Glasgow’s Procurator-Fiscal of Police reflected that: ‘[A]s law officers we have a feeling that it goes on, we just do not know how far it goes on … There is a sort of iceberg of which only the top one-sixth is visible’.
Moreover, such fears were reinforced by some of the medical evidence presented to the Committee. While Glaister doubted that the proportion of the population participating in a homosexual relationship at some time in their lives matched Kinsey’s estimate for the USA of 10 per cent, he had little doubt that ‘homosexual potentialities’ existed in ‘a very large number of male persons’. For their part, Drs Rushforth and Kreamer considered that ‘Kinsey’s figures might easily work for Scotland’. On the basis of their case work, they were convinced that homosexual circles existed in all the Scottish cities and that homosexuality was ‘an extremely common condition’.
Nevertheless, the unequivocal view of the Scottish administration was that homosexuality did not constitute a significant problem north of the Border. Indeed, the Secretary of State for Scotland had advised the Cabinet as early as February 1954 that, although there had been a slight increase in the number of prosecutions for homosexual offences in the post-war period: ‘The Scottish position did not justify an inquiry.’ Statistics presented by the Scottish Home Department to the Wolfenden Committee endorsed this view. In 1955, only eighty convictions for homosexual offences were recorded in Scotland as compared with 2,293 in England and Wales. Moreover, for the period from March 1953 to March 1956, while 480 men in England and Wales, aged 21 and over, had been convicted of homosexual offences in private with other consenting adults, the comparable figure for Scotland was nine.
Such statistics were reinforced by the general impressions of Scottish magistrates, law officers, and senior policemen. Thus, in the view of Glasgow’s Assistant Chief Constable and Procurator-fiscal of Police, homosexual practices in private were not ‘a serious problem in the city’ and there had been no ‘noticeable increase in the amount of homosexual behaviour between grown men’. Although such witnesses acknowledged that there were public conveniences where homosexuals tended to congregate, public importuning was not viewed as ‘a major problem of public nuisance’; the Crown Agent testifying that, in his experience: ‘That offence does not appear to exist in this country to any extent if at all…’ Remarking on the lack of prosecutions in Scotland, Dr Inch observed that ‘passive sodomists of the male prostitute type’ had indicated that:
it was not a popular and paying proposition north of the Border and the general tendency seems to be to make south, particularly for the bright lights of London. Apparently, the inducements, financial or otherwise, are less in Scotland.
The low incidence of prosecutions for homosexual offences in Scotland was widely attributed to the more demanding and regularized system of legal process which operated under Scots Law, which, it was argued, served to protect civil liberties and eliminate the arbitrary witchhunts conducted by local police authorities in England and Wales. Yet, as Lionel I. Gordon, the Crown Agent, was at pains to point out, this policy was a function of procedural constraints, and did not in any way condone homosexuality or homosexual practices. He opposed the decriminalization of homosexual acts as ‘a retrograde step’ that would undermine social standards and family values, and be at odds with Scottish public opinion. In particular, he feared that the legalization of private homosexual acts would prove a ‘dangerous step’ in giving a green light to the sexual predator, given that, in his view, ‘the practised homosexual look[ed] for new material in youth’.
Such views were shared by the Faculty of Advocates, and merely reflected broader homophobic prejudices within the Scottish legal establishment. The most extreme views were expressed by the sheriffs who presided over the bulk of the more serious cases relating to homosexual offences. Their evidence to the Wolfenden Committee was driven by a powerful set of fears and assumptions. First, concerns were expressed as to the dysgenic effects of homosexuality. Thus, Sheriff Prain (Perth and Kinross) warned that its decriminalization would ‘discourage the practice of heterosexuality’, and would ‘strike at the birth rate’ and ‘eventually lead to the deterioration of the race’. Secondly, their evidence was informed by a perception of homosexuality as an essentially predatory and ‘infectious’ activity—a ‘social evil’—even when conducted in private, with an initial sexual act engendering a cycle of debauchery. In their view, homosexual relationships were rarely confined to two individuals and invariably presented a danger to other members of society. Thirdly, many sheriffs were of the view that, in many instances, homosexuality was an issue of criminal wilfulness rather than medical dysfunction and should be addressed accordingly. Even where Scottish sheriffs advocated greater recourse to medical treatment, they were insistent that it be part of normal criminal proceedings so that the element of deterrence remained and offenders could be compelled to comply with appropriate therapies.
Nor was the evidence of medical witnesses entirely supportive of non-coercive measures. While they emphasized the importance of addressing homosexual offences as a medical rather than a moral issue, requiring remedial rather than punitive measures, they still portrayed homosexuality as quintessentially pathological and socially deviant, and in some respects an insidious threat to civil society. Thus, for Dr Kreamer, homosexual networks presented ‘a very great power like Freemasonry’, and he warned that:
We must not blind our eyes to it. There are influences everywhere. If people in certain ways of life want to get on, they had better give the impression that they are not opposed to homosexuality … That is the danger, I think, the undercurrent, the power it has.
Indeed, much of the evidence presented on the effectiveness of existing medical treatments for homosexual conditions was far from compelling. The experience of the Scottish Home Department was that, within the prison population, only a minority of homosexual offenders, some 30 per cent, were suitable for medical treatment and only 11 per cent prepared fully to cooperate with a course of psychotherapy. In particular, short-term prisoners proved reluctant to agree to a course of treatment which might be prolonged beyond the date of release. Nor were the medical staff of the Scottish Prison and Borstal Services at all certain of the outcome of their therapies. It was never their aim to try and change the sexual identity of a homosexual, which they regarded as ‘expensive, dangerous’, and, almost certainly, impossible. However, even with the more limited aims of trying to reduce the levels of sexual urge and mental anxiety in homosexual offenders, the medical science was hazy. As Dr Inch freely admitted, ‘we do not know what may be happening so far as the endocrine treatment is concerned and what the ultimate result may be’, and he had never undertaken a controlled experiment ‘to see whether aspirin would [have been] equally successful’.
The Wolfenden Report
In its report presented to Parliament in September 1957, the Wolfenden Committee advanced nine substantive recommendations relating to homosexual behaviour and the law: that homosexual behaviour between consenting adults in private be no longer a criminal offence, the age of adulthood being defined as 21; that, in line with Scottish procedures, no proceedings be taken in England and Wales in respect of any homosexual act (other than an indecent assault) committed in private by a person under 21 except with the sanction of the Attorney-General; that the laws relating to living on the earnings of prostitution be applied to male as well as female prostitution; that the maximum penalties for buggery, gross indecency, and indecent assaults be revised; that, except for some grave reason, proceedings should not be instituted in respect of homosexual offences revealed in the course of investigating allegations of blackmail; that, again in accordance with Scottish procedures, except for indecent assaults, the prosecution of any homosexual offence more than 12 months old be barred by statute; that psychiatric reports should be considered before any sentencing of a person under the age of 21; that, subject to the approval of the prison medical officer, prisoners desirous of having oestrogen treatment should be permitted to do so in England and Wales, as in Scotland; and that research be instituted into the aetiology of homosexuality and the effects of various forms of treatment.
Of the three surviving Scottish members of the Wolfenden Committee, two were broadly in agreement with its final recommendations. In private, the Marquess of Lothian had expressed a preference for 18 as the threshold for decriminalization. He also considered the retention of buggery as a separate offence as illogical, but was convinced that this might help persuade public opinion to accept the more radical changes being proposed. For her part, Mary Cohen was strongly opposed to buggery remaining a separate offence and joined the medical members of the Committee in a formal reservation to the Report on this issue. It argued that many people were equally repelled by the heterosexual act of orogenital intercourse, and that the medical evidence did not suggest that buggery did any more physical harm than other homosexual acts, nor that it simulated heterosexual intercourse so closely as to entice people from normal sexual behaviour.
However, the most wide-ranging and influential reservation to the Report came from James Adair OBE, a former Procurator-Fiscal, Chairman of the Scottish Council of the YMCA, and long-serving elder of the Church of Scotland. In his interrogation of witnesses, in his discussions within the Committee, and in his final note of reservation, Adair marshalled a range of legal, moral, and medical arguments against homosexual law reform. In his view, homosexuality was ‘a course of conduct which [was] contrary to the best interests of the community, and one which [could] have very serious effects on the whole moral fabric of social life’. In his opinion: ‘No one interested in the moral, physical or spiritual welfare of public life wishe[d] to see homosexuality extending in its scope, but rather reduced in extent or at least kept effectively in check.’ The removal of the law would merely be regarded ‘as condoning or licensing licentiousness’, and would open up ‘for such people a new field of permitted conduct with unwholesome and distasteful implications’, especially given the insidious tendency of homosexual practices to ‘propagate themselves’ and the existing breakdown in moral standards due to two world wars. The fact that sexual acts ‘inherently hurtful to community life’ were ‘carried out clandestinely’ did not justify their removal from the criminal code—the evocative parallel he drew being incest. Moreover, in a widely publicized warning, Adair predicted that a more liberal regime would lead to the corruption of youth: ‘The presence in a district of … adult male lovers living openly and notoriously under the approval of the law is bound to have a regrettable effect on the young people of the community.’
He was especially scathing of the tendency of sociologists and psychiatrists to sentimentalize the problem of homosexuality and to downplay its predatory and paedophilic aspects, and its damage to physical health. In his opinion, much of the evidence presented by ‘mental specialists’ was ‘quite inexplicable and in not a few cases manifestly indefensible’. Not only did he perceive homosexuality as being the latest disease ‘fashion’ or ‘craze’ of ‘medical men’, he also stressed the continuing uncertainties of medical and mental science ‘and the limited knowledge and powers of the medical profession under existing circumstances to deal with homosexual patients’. In Adair’s view, any medical strategies still needed to be underpinned by legal sanctions and the full ‘moral force of the law’. It was not the threat of criminal proceedings that underlay the blackmail of homosexuals, but social stigma, the solution to which was self-control and either sexual conformity or abstinence.
The Aftermath of Wolfenden in Scotland 1957-67
In the 10 years following the Wolfenden Report, Adair’s Reservation, effectively amounting to a ‘minority report’, was to have a significant impact on the sexual politics surrounding homosexual law reform in Britain and, in particular, its application to Scotland. It was widely cited in the press, in Parliament (across a wide spectrum of political opinion), and by moral pressure groups, including the Scottish churches. Moreover, in policy briefings within the Scottish Office and Cabinet, his concerns were regularly interpreted as reflecting wider opposition within Scottish society to any liberalization of the law relating to homosexual offences.
The major platform for airing his views was the Church of Scotland. Curiously, unlike the Church of England, the Church of Scotland sent neither memoranda nor delegation to the Wolfenden Committee. Nevertheless, at the instigation of Adair, the Church and Nation Committee had appointed a sub-committee to investigate the issue of homosexuality in June 1955 which took advice ‘from the spheres of psychology, medicine, social service and the law’. In an interim report in 1956, the Church and Nation Committee conceded that the operation of the existing laws encouraged blackmail and intimidation, created ‘a class of social outcasts’, and discouraged homosexuals from seeking advice and treatment. It even argued that, although from the Christian standpoint homosexual practices were ‘a sin from which the individual must be dissuaded and redeemed’, it was probable that ‘the sins of adultery and fornication present[ed] a greater danger to the social well-being of this country’. However, the Committee was also persuaded of the ‘social harm’ of any radical change in the criminal law, and focused instead on the need for the provision of special detention centres for ‘serious and persistent cases’ with specialist treatment regimes.
The sub-committee finally reported in December 1957 in favour of the decriminalization of homosexual acts between consenting adults, in line with the Wolfenden Report. However, drawing heavily on both the concerns and jeremiads of Adair’s report, the Church of Scotland’s Church and Nation Committee overruled its sub-committee by seventeen votes to five. In its report to the General Assembly, the Committee challenged the philosophy of the Wolfenden Report that the law should not be concerned with the private moral behaviour of the individual provided that such behaviour did not involve the corruption of the young or was otherwise socially injurious. In its view, duly endorsed by the General Assembly:
The criminal law must of necessity reflect the standards of morality generally accepted by the nation … In a Christian country … the law should reflect as far as possible the generally accepted standards and principles of Christian ethics … In our opinion there are certain kinds of behaviour that are so contrary to Christian moral principles, and so repugnant to the general consensus of opinion throughout the nation that, even if private and personal, they should be regarded as both morally wrong and legally punishable … Homosexual offences seem to us to fall within this category. If so, it is surely right that they should be regarded not only as sinful but as criminal.
A fundamental concern of the Committee was that, although a homosexual was deserving of the same pity and help as ‘other cripples’, unlike them ‘he [was] apt to be proud of his disability and to spread what [was] properly called perversion’. It was for this reason that, while acknowledging the need for specialist counselling and medical treatment, and the importance of redemption, a policy of ‘repression’ was advocated. In particular, it considered that homosexual law reform would merely reinforce the post-war decline in ethical standards and what it perceived as a spreading ‘fashion’ for sodomy.
Subsequently, after nearly a decade of silence on the issue, in 1966, the Church of Scotland convened a fresh working party in view of the progress of Lord Arran’s Sexual Offences Bill in Parliament, which proposed limited homosexual law reform. In accordance with its findings, the Social and Moral Welfare Board recommended to the 1967 General Assembly that the law should be amended in accordance with the reality of Scottish legal practice and that private, consenting acts should be decriminalized. Its report emphasized the need for a more sympathetic understanding of the difficulties and handicaps of those suffering from homosexual tendencies, and the need for adequate psychiatric and medical treatment. It also stressed the importance of a more charitable interpretation of biblical texts and greater regard in the counselling of homosexuals to the gospel of redemption. Once again, however, the General Assembly rejected the liberalization of the law relating to sexual offences, deploring in its deliverance ‘the prevalence of homosexual practices as a source of uncleanness and deterioration in human character, and of weakness and decadence in the Nation’s life’.
However, throughout the period, the Free Presbyterian Church of Scotland remained the most vitriolic at the prospect of homosexual law reform. As early as 1954, its synod had lamented that ‘the voices of Sodom and Gomorrah … appear[ed] to be rife among us’, threatening divine retribution and ‘the poisoning of the moral sense’. Its Religion and Morals Committee fully concurred with Adair’s reservations to the Wolfenden Report and endorsed the view that homosexuals were ‘dangerous men who [would] form cells of vice in the towns and villages where they live[d]’. They duly forwarded their concerns in a strongly worded protest to the Home Secretary. During the 1960s, the homophobia of the Free Church remained undiminished. It was virulently opposed to the activities of the Homosexual Law Reform Society and to legislative proposals introduced from 1965 onwards. Humphry Berkeley’s Sexual Offences Bill, introduced into the House of Commons in December 1965, was roundly condemned for condoning a vice which was ‘abominable in the sight of God, so corrupting of public morals, so perverted and so downright destructive of the social welfare and the political health of the land’. The Church of England was dismissed as ‘far gone in spiritual blindness’ for its acceptance of law reform, and apocalyptic warnings laced the reports of the Presbyteries. Thus the Southern Presbytery, meeting in Glasgow in February 1966, solemnly reminded ‘all concerned’:
that the possibility of the cities of Britain being turned into ashes is by no means unnecessarily remote and there can be little doubt but that the present proposal is of the most God-provoking nature.
The views of the Scottish churches, especially the deliverances of the Church of Scotland, were regularly cited, both in policy briefings and parliamentary debate, as reflecting ‘the general views of the people of Scotland’. In fact, hard evidence of popular attitudes to homosexual law reform in Scotland in the 1950s is meagre. However, a poll undertaken by the Scottish Daily Record in 1957 indicated that 85 per cent of Scottish respondents were opposed to the Wolfenden Report’s central recommendations, with only 15 per cent in support. This contrasted markedly with the split of 49/51 per cent found in a poll conducted by the Daily Mirror south of the Border. Again, this was evidence repeatedly deployed by policy makers to emphasize the strength of opposition to reform in Scotland, as was the fact that few representations for the liberalization of sexual offences legislation had been received by the Scottish Home Department and ‘few proposals … ventilated’.
The media both reflected and reinforced negative attitudes to homosexual law reform in Scotland. As Higgins has noted, while the provincial press came out ‘virtually unanimously’ against the Wolfenden Report, the Scottish newpapers ‘were particularly repelled by any suggestion of changing the status quo; James Adair was much celebrated by them’. A Scotsman editorial in September 1957 concluded that it was ‘no solution to any public problem to legitimise a bestial offence’. In a series of articles on the implications of Wolfenden for Scotland in 1959, it warned of a spreading homosexual sub-culture within Scottish cities:
homosexuals, by the nature of their disability, owe their primary allegiance to the homosexual group before any other authority or loyalty in their lives. Hence the connection between perversion and subversion, which is one of world Communism’s greatest strength in this country.
As Jeffery-Poulter observes: ‘The articles zealously trotted out the old chestnuts about the self-propagating nature of homosexual groups and the serious danger of the corruption of youth, before going on to label every homosexual a potential traitor.’ The media therefore concluded that, while the country awaited a convincing medical cure for such ‘unnatural urges’, ‘an immediate campaign of police repression’ was required to control the problem.
By the late 1960s, the Scotsman had radically altered its position on homosexual law reform in line with liberal debate south of the Border and the growing medicalization of the issue, but the editorials and correspondence columns of other regional newspapers continued their note of biblical condemnation. Thus, as late as 1967, the Scottish Daily Express condemned the Moral Welfare Committee of the Church of Scotland for advocating the decriminalization of homosexual acts between consenting adults:
Sodomy is not only a sin, it is a powerful instrument for the destruction of society … The evil professionals who indulge in this filthy trade must continue to be punished and their misguided or diseased associates be forced to take treatment …
The views expressed by Scottish peers and MPs in Parliament on the issue of homosexual law reform generally accorded with those of the Scottish media. In the House of Lords an influential cluster of homophobic Scottish peers sustained an unrelenting opposition to legislation. Lord Balerno emphasized the support within the Church of Scotland for James Adair’s reservations to the Wolfenden Report, sharing his concerns that the decriminalization of homosexual activities would be seen to condone licentiousness and surmising that Scotland was ‘not yet ready for the more permissive society that [was] overcoming England’. The Earl of Dundee also endorsed Adair’s views. In particular, he questioned the medical and sociological evidence underpinning the Wolfenden Report and the ability of the medical profession to alter ‘either the outlook or behaviour of homosexuals’. In his view, whether homosexuality was a ‘mental disease to be pitied, or a vice to be reprobated’, legal sanctions needed to be retained. For Lord Ferrier, reform legislation constituted a ‘queer’s charter’. In his view, the homosexual was either ‘mentally deranged’ or a ‘sinner in a sin … bred from self-pity out of sadism, or from lack of self-control out of lust’. Blackmail was not contingent on the law but on the widespread detestation of homosexuality in society, and he predicted that any new sexual offences bill would encourage male prostitution, endanger the sexual culture of the younger generation, and serve to empower homosexuals within the structures of civil society.
Meanwhile, Lord Kilmuir (formerly Sir David Maxwell Fyfe), who as Home Secretary had presided over the ‘witchhunt’ of homosexuals in England in the early 1950s and the establishment of the Wolfenden Committee, criticized reformers for confusing ‘a supposed candle of liberty’ with the ‘will-o’-the wisp of license’ that ‘rises only from the iridescence of decay’. He took his stand on the Old Testament condemnation of sodomy, and could not countenance the legalization of acts such as oral and anal sex, universally perceived as ‘horrible, unnatural and beastly’. In his view, only a minority of men committing homosexual acts were ‘genuine inverts’, with the remainder guilty of wilful indulgence or predatory lust.
Finally, in a series of debates, Lord Saltoun expressed two major concerns regarding homosexual law reform. First, he raised traditional eugenic concerns over the impact of homosexual (and thus nonprocreative) sex on the racial health of the nation and the stability of marriage within British society. Secondly, he stressed what he regarded as the quintessentially evangelical and predatory nature of many homosexuals. According to Saltoun, the passions of homosexuals were ‘much stronger than those of normal people, and they cast their net very wide for their satisfaction’. In particular, he feared that the decriminalization of homosexual acts would merely present homosexual practices to young men as ‘one of the enlargements and liberties of coming of age’ and facilitate the efforts of aristocratic libertines to debauch ‘quite young lads, when their glands [were] just developing’.
Only two Scottish peers supported legislation. Lord Boothby, who as an MP had been instrumental in the establishment of the Wolfenden Committee, strongly supported its recommendations. While he advocated legal sanctions against the seduction of youth, and against acts of sexual violence or public indecency, he believed that, in a free democracy, what consenting adults did in private was merely ‘a moral issue between them and their maker’. Similarly, Lord Lothian, a former member of the Committee, considered that ‘the control of sexual appretites was for the average adult a personal and not a public challenge’, and that the criminal law could not be based on a precise grading of moral and ethical failings.
Nevertheless, a profound sense of moral revulsion towards homosexuality informed both their arguments. Along with many of his opponents, Lord Boothby invoked the threat of a ‘homosexual underground’ in the great cities, menacing Britain’s youth. The thrust of his objection to existing law was not that it denied basic sexual and civil liberties, but that in England and Wales it was subject to the vagaries of local police authorities, that it was vulnerable to corruption, and that it often served to provide a degree of sensationalism and exhibitionism actively sought after by many homosexuals. Likewise, Lord Lothian’s discussion of homosexual practices was larded with the discourse of degenerationism. He agreed that homosexuality was a graver moral offence than prostitution in that it offended ‘more radically the law of nature ordained by God’, and stressed that the intention of the Wolfenden Report was not to condone homosexual acts nor to effect ‘a new attitude to vice itself’; it was merely intended to provide, within very defined limits, a more tolerant legal environment and eradicate the worst injustices caused by existing criminal procedures. Although Boothby regretted that successive bills did not apply to Scotland, neither peer focused on this in their contributions to parliamentary debate. Given their limited and largely legalistic agendas, Scotland, with its low incidence of prosecutions and more regularized legal processes, provided the role model rather than a suitable case for treatment.
Meanwhile, there was equally little support for homosexual law reform from Scottish members in the House of Commons. Within the Scottish Liberal Party, the issue was seen as divisive and electorally damaging.94 Even less support was forthcoming from Scottish Labour MPs. As early as 1958, Jean Mann, MP for Coatbridge, had articulated grass-root hostility to the Wolfenden Report among the Scottish labour movement. Criticizing the lack of trade union evidence before the Committee, she reflected that:
I cannot imagine the miners’ lodges welcoming a Report which will mean that it will no longer be an offence to procure an adult male and set up a house in a mining village for a male friend. I cannot see the Co-operative women’s guilds welcoming this, or the townswomen’s guilds.
She viewed the Wolfenden Report as part of a general homosexual conspiracy to dominate the major institutions of government and civil society—an ‘evil thread’ that ran ‘through the theatre, through the music hall, through the Press, and through the BBC’ with ‘international ramifications’.
It is difficult to establish how far such a conspiracy theory was shared by other MPs. Certainly, of the thirty Scottish MPs voting in 1960 on a Commons motion for the Government’s implementation of the Wolfenden Report, twenty were opposed, of whom six were Labour MPs. Even more Labour members, with ‘a heavy concentration of Scots’, voted against Leo Abse’s motion in 1965 to introduce a bill to amend the law relating to homosexual offences, and it was widely acknowledged that the principle opponents of reform had been ‘the Calvinist Scots, notably the Scottish miners’. Indeed, on the second reading of Humphry Berkeley’s Sexual Offences Bill in February 1966, Sir Cyril Osborne protested that:
It seems to me that to bring this important Measure before the House on a Friday, in the full knowledge that the good Scottish Socialist Calvinist MPs are away, is cheating … I believe that if on return to the House the Scottish and north-country Members were to find … that the Labour Party had put buggery in front of steel, there would be a revolt inside the Labour Party.
As Roy Jenkins wryly reflected in July 1967 on the third reading of the Sexual Offences Bill, he could not understand the logic of omitting Scotland, ‘unless the sponsors realised that if they included Scotland, all Scottish Members would descend in their wrath and vote solidly against the Bill’.
From the outset, the Scottish Home Department and the Scottish Office adopted a negative posture towards the recommendations of the Wolfenden Report relating to homosexual offences. There were two central strands to their objections to the decriminalization of private acts between consenting adults: that, under existing criminal procedures in Scotland, such acts were rarely prosecuted, and that there was compelling evidence, including Adair’s ‘minority report’, the deliverances of the Church of Scotland, and isolated opinion polls, that a wide spectrum of Scottish opinion was vigorously opposed to reform. Permanent officials also questioned the relevance of the Wolfenden Report’s subsidiary clauses. Provisions relating to the non-prosecution of ‘stale’ offences and the use of oestrogen treatment already existed north of the Border, and, in their view, the incidence of blackmail in homosexual cases was not sufficiently a problem in Scotland as to require fresh legislation.
During the 1960s, the policy of the Scottish Office towards homosexual law reform continued to be shaped by similar arguments in briefing papers on a succession of Sexual Offences Bills. It was urged that Scotland had never experienced the controversies surrounding certain notorious English prosecutions and that, given the more rigorous and regularized criminal process in Scotland, especially with regard to the admissibility of ‘confessions’ in evidence, and the continuingly low incidence of recorded prosecutions for homosexual offences in Scotland, there was no equivalent justification for legislation. Equally, the Scottish Home Department repeatedly warned of the political dangers in alienating the more conservative strands of Scottish public opinion, and advised that the government should adopt a neutral stance on the issue of homosexual law reform. It was, the Permanent Secretary considered, an ‘area of morality’ most appropriately regarded as ‘a field for Private Members’.
After protracted debate in Parliament, the Sexual Offences Act of 1967 finally decriminalized homosexual acts committed in private between consenting adults. As a ‘progressive’ measure, it had many limitations. Its clauses reflected the general tenor of debate that homosexuality remained socially objectionable and morally wrong. Increased penalties were imposed on homosexual acts with males below the age of 21. Stringent definitions of ‘private’ were introduced to curtail homosexual acts, as were wide-ranging and ambiguous powers relating to procurement. The Act did not apply to the merchant navy or armed forces. Above all, in deference to the legal, cultural, and political arguments rehearsed above, Scotland (along with Northern Ireland) was excluded from its provisions. It was to require a further thirteen years of often bitter and divisive sexual politics north of the Border before parity was secured under the Criminal Justice (Scotland) Act of 1980.
Conclusion
What are the implications of the Scottish experience for any historical interpretation of the Wolfenden Committee and its role in the developing relationship between homosexuality and the State? As far as Scotland was concerned, the proceedings of the Committee were very far from establishing what Jeffrey Weeks has described as a moral taxonomy for the next ‘permissive’ phase of sexual law reform. While the Scottish evidence also privileged the voice of legal and medical experts over the moral campaigner, their testimony, the machinations of the Committee’s most influential Scottish member, James Adair, and subsequent Scottish public debate surrounding the Wolfenden Report remained heavily influenced by a commitment to the conventional norms and processes of moral regulation. Patrick Higgins surmises that the reason why ‘almost all the most virulent homophobes operating in Britain during the 1950s were Scottish’ was that ‘it seemed to go with the territory, almost certainly a legacy of the powerful social and cultural position enjoyed north of the border by the Presbyterian church’. Certainly, the lasting role of the churches in defining the moral climate of Scottish civil society and in sustaining, as Callum Brown has argued, ‘the remarkable influence of puritanical religion’ and ‘an illiberal presbyterian theocracy’ may well partly explain the conservatism of Scottish witnesses.
Much has been made of the innovative, albeit regulatory, medical and legal discourses of the Wolfenden Committee’s proceedings, and its extensive classification of contemporary sexual pathologies. Again, however, the Scottish evidence reveals a fundamental attachment to conventional values and perceptions. The medical evidence of agencies such as the Davidson Clinic or the Scottish Prison Service, and the legal testimonies of the Crown Agent and Procurators Fiscal sometimes embraced new taxonomies of deviance but remained within a quintessentially ‘moral’ framework of prescription with respect to policy. They still articulated the traditional rhetoric of degenerationism and social hygiene, and within Scottish governance, public order, public morality, and public health remained inextricably linked both administratively and ideologically.
Thus, in significant respects, the Scottish experience does not conform to a neo-utilitarian interpretation of the Wolfenden Report, which emphasizes the lasting importance of its distinction between private morality and public decency. The majority of Scottish witnesses, in line with the Church of Scotland, were reluctant to draw such a distinction. The low level of prosecutions in Scotland for private and consenting homosexual acts was primarily a reflection of the evidential constraints of Scots Law rather than any conviction that private sexual behaviour was an inappropriate territory for the criminal law. Moreover, this was a view that continued to be widely endorsed within Scottish civil society throughout the 1960s. Hence the strength of opposition to the extension of homosexual law reform north of the Border.
Ironically, despite, or perhaps, more accurately, because of, the strength of homophobia in Scotland, frequently charted in opinion polls and widely reflected in the media, while the Scottish experience became a role model for much of the recommendations in the Wolfenden Report, including reforms to legal and medical procedures, Scotland remained exempt from the central process of decriminalization. Scottish officials and the Crown Office were increasingly aware of the paradox but were not prepared to address the issue in advance of Scottish public opinion. As the head of the Scottish Home Department quipped in drafting his evidence to the Wolfenden Committee: ‘Perhaps this is an occasion when we might accept (if in this context the expression is not inappropriate) a fairly passive role.’ The Scottish Office duly fell back on the specious argument that, because, under the constraints of Scottish legal procedures, few homosexuals were actually prosecuted for private, consensual sexual practices, their behaviour was de facto already tolerated; an argument that did nothing to address the underlying issues of social discrimination and civil liberties.
Thus, any legislative advance in the relationship of the Scottish State to the ‘homosexual citizen’ would not be the outcome of any systematic governmental appraisal of sexual law reform in the light of the Wolfenden Report, but of the protracted and convoluted efforts of Private Members in Parliament in the period 1967-80. If the Wolfenden Committee did proffer a ‘new moral economy, responsive to underlying shifts’ in post-war Britain,109 it was not one readily embraced within Scottish governance and society.