Knight and Wilson on the LGBT Community and the Criminal Justice System – Part 1
In this first article from Charlotte Knight and Kath Wilson, they discuss the history of the LGBT community and the criminal justice system, from 1290 to the present day. Part 2 of their article is available to read here.
In the book LGBT People and the Criminal Justice System (2016) we explore the decriminalization of sex between men and trace the gradual liberalisation of the legislative framework concerning LGBT rights. Aspects of the law affect the everyday lives of gay men as well as the wider lesbian, gay, bisexual and transgender (LGBT) community. Lesbians have not been subject to the law in the same way as gay men although it is clear that the impact of legislation against men has had consequences for women in terms of rendering them invisible whilst affecting their rights around, for example, inheritance and marriage. Bisexual people similarly have not directly been identified by legislation but clearly suffer from many of the discriminatory processes that gay men and lesbians experience. Chakraborti and Garland (2009) point out that unlike many other areas of discrimination, the gay community’s private and sexual lives have been subjected to police scrutiny as well as legislative and parliamentary intervention.
The first mention of a punishment for homosexuality in English law came in 1290. In 1533 during the reign of Henry VIII the traditional ‘buggery’ statute was introduced and remained in force until 1967 (Crompton 1980). The LGBT community have suffered from numerous waves of prosecution, from the late 17th and 18th Century through to the 1950s. These were often the result of self-appointed groups who advocated for the ‘moral’ savings of the day. The 1950s, for example, saw a rapid rise and rigorous prosecution of, homosexuals by the Home Office (Stonewall 2013). In 1952, almost 4,000 gay men appeared in court, and in 1954 there were 1,069 men in prison for homosexual acts. Thousands of gay men were blackmailed, prosecuted, sentenced to prison, pilloried and shamed. It is impossible to assess the number of men who committed suicide during this period. For those men whose suicide attempts failed, worse was in store, as Horsfall (1988) notes, some were prosecuted for being both homosexual and attempting suicide, which at that time was also illegal. Many were subject to supposed ‘cures’, which included lobotomies, aversion therapy and chemical castration (Fish 2012).
LGBT People and the Criminal Justice System (2016) discusses examples of particular prosecutions including those of Oscar Wilde and the treatment of Alan Turing by the justice system, and the work of Radclyffe Hall.
During the 12 years that the Nazis were in power, homosexuals were one of the groups/communities persecuted. They were predominantly gay men although lesbians were also arrested and placed in labour and concentration camps. Whilst Havelock Ellis and Addington Symonds' argument that sexuality was an inborn condition, had been used by some as a reason to tolerate lesbians and gay men, as Weeks (2010) notes, it was equally used by the Nazis to argue for their suppression. Homosexuals were forced to wear a pink triangle symbol to identify the reason for their captivity. An estimated 50,000 gay men were sentenced to imprisonment and 15,000 gay men deported to concentration camps. These men were subject to the death penalty, starvation, castration and were amongst those ‘medically’ experimented upon by the Nazi regime (Stonewall 2013). The Nazi laws relating to homosexuality in Germany remained in place until 1967. This was a time when under the American Psychiatric Association, homosexuality was still classified as a mental illness, not declassified until 1974. It was not until 1992 that the World Health Organization followed suit.
There have been immensely significant changes in the 50 years since the 1967 Sexual Offences Act, when sexual activity between two males over the age of 21 and in private was decriminalized. In January 2017 I sat at breakfast in a London hotel with my partner and son, saw another ‘pretend’ family (wording from Section 28 Of the Local Government Act 1988) and saw several gay couples appearing comfortable and relaxed about their sexual orientation I could not have dreamt this in 1988 when Section 28 of the Local Government Act was introduced.
Amongst the changing legislation, LGBT people can now marry if they choose, although the Marriage (Same Sex Couples) Act 2013 does not cover Northern Ireland. LGBT people are protected from Domestic Violence under the Domestic Violence, Crime and Victims Act 2004 giving redress to the law in terms of prevention, protection, justice and support.
The Gender Recognition Act 2004 enabled individuals who meet specific requirements to obtain complete legal recognition in their acquired gender and severely restricts how information about an individual’s previous gender or about an application for a Gender Recognition Certificate (GRC) may be disclosed. The Equality Act (Sexual Orientation) Regulations 2007 make it unlawful to discriminate on the grounds of sexual orientation in the provision of goods, facilities and services, education, disposal and management of premises and the exercise of public functions. The Human Fertilization and Embryology Act 2008 enabled same-sex couples to be recognized as the legal parents of children conceived using donated eggs, sperm or embryos. The ‘need for a father’ is replaced by ‘the need for a supportive parenting’.
The Equality Act (2010) identifies those needing protection by the law by defining protected characteristics as age, disability, gender, race and ethnicity, religion or belief, sexual orientation and transgender status (Home Office 2010).
CHAKRABORTI, N. & GARLAND, J. 2009. Hate Crime: Impact, Causes and Responses, London, Sage.
CROMPTON, L. 1980. The Myth of Lesbian Impunity: Capital Laws from 1270 to 1791. In: ROBSON, R. (ed.) Sexuality and Law Volume 2 Crime and Punishment. Ashgate.
FISH, J. 2012. Social work and lesbian, gay, bisexual and trans people. Making a difference, Bristol, The Policy Press.
HOME OFFICE 1988. Local Government Act. In: OFFICE, H. (ed.). London.
HOME OFFICE 2010b. Equality Act 2010. In: OFFICE, H. (ed.). London: http://www.legislation.gov.uk: Home Office.
HORSFALL, A. 1988. Battling for Wolfenden, Routledge.
STONEWALL 2013b). History of lesbian, gay and bisexual equality. http://www.stonewall.org.uk/athome/historyoflesbiangayandbisexualequality:
WEEKS, J. 2010. Sexuality 3rd Edition, Routledge
Charlotte Knight is an Associate Researcher at De Montfort University, UK. She established the Division of Community and Criminal Justice, which delivers probation and police programmes, and applied criminology degrees.
Kath Wilson is a Senior Lecturer and leads the probation programme at De Montfort University, UK. Previously a probation officer, she teaches mainly around issues of values, diversity and offender management within the criminal justice system, particularly in relation to probation and policing.