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The Homosexual Exception? The Case of the Labouchère Amendment

L’exception homosexuelle ? Le cas de l’amendement Labouchère (1861-1897)
William Fize

Résumés

L’amendement Labouchère de 1885 est souvent considéré comme le texte de loi qui criminalise officiellement l’homosexualité masculine en Grande-Bretagne. Il semble marquer le début de l’exception homosexuelle en criminalisant non plus un acte, comme ce fut le cas précédemment pour la sodomie, mais tout acte sexuel commis entre hommes, quel que fut le consentement de chacun, et ce en privé comme en public. Cet amendement s’inscrit dans le cadre d’une loi plus large — et sans lien avec l’homosexualité — qui visait à préserver les jeunes filles du vice et de la prostitution le Criminal Law Amendement Act. Les débats parlementaires autour de celui-ci prirent plus de quatre ans alors que l’adoption de l’amendement Labouchère se déroula en quatre minutes, tant la réprobation de l’homosexualité faisait consensus. En outre, le texte était formulé de façon extrêmement vague, ce qui permit d’inculper de nombreux hommes. En dépit de cela, ce texte de loi régissant l’homosexualité dans la Grande-Bretagne victorienne n’était peut-être pas si exceptionnel, compte tenu du contexte, et pourrait même être perçu comme une évolution vers un assouplissement du cadre législatif car la sévérité des peines encourues était amoindrie. Cette « exception homosexuelle » qui constitue la partie visible de l’iceberg du contrôle de la sexualité, pourrait donc révéler plus qu’on ne l’imagine à première vue.

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  • 1 The word homosexual can be deemed anachronistic considering the fact that it was only coined in Ger (...)
  • 2 Alan Wolfe used this expression as the title to his essay published in the New York Times in 1998. (...)

1Many legal changes regarding sexuality in general and male same-sex sexuality in particular occurred in the nineteenth century. This article intends to investigate the evolution of English law regarding the category of the homosexual1 by examining the background to the passage of the 1885 Criminal Law Amendment Act, and more precisely its section 11, also known as the Labouchère amendment. This amendment has often been presented as a watershed in the treatment of male homosexuality in Britain, but its precise significance remains open to question. In other words, how exceptional was the homosexual exception?2

2The Labouchère amendment reads as follows:

  • 3 The Criminal Law Amendment Act 1885 (48 & 49 Vict. c. 69), the full title of which was ‘An Act to m (...)

Any male person who in public or private commits or is a party to the commission of or procures or attempts to procure the commission by any male person of any act of gross indecency with another male person shall be guilty of a misdemeanour and being convicted thereof shall be liable to be imprisoned for any term not exceeding two years with or without hard labour.3

3When contextualized, this amendment to the law does indeed seem highly exceptional in the way it criminalizes not only a specific act but any kind of male same-sex sexual activity between consenting adults. Nevertheless, we need to dig below the surface and consider this historical event in the light of the specific social, legal, scientific and ideological context of the time.

4In the first part of this article, we will elaborate on this ‘homosexual exception’ created by the Labouchère amendment by discussing the general consensus surrounding the evils of male homosexuality, and its adoption, placing it within the broad spectrum of what was then considered a misdemeanour and, finally, we will elaborate on the severity of the amendment and its connection to the public/private sphere in which it could be enforced. In the second part, we will consider how, in spite of all this, this development in English law regarding male homosexuality in Victorian England was perhaps not as ‘exceptional’ as might be imagined. It could even be seen as a potentially more lenient evolution of the legal framework, given that in some respects the amendment reduced the severity of punishment inflicted upon those convicted. Finally, the third part will demonstrate that there might be more to this piece of Victorian legislation than meets the eye, and that the Labouchère amendment can usefully be regarded as the visible tip of an iceberg of sexual control. The possible cause of this repressive attitude towards sexuality in late-nineteenth century Britain will thus be investigated.

What Is So Exceptionally Punitive about the Labouchère Amendment?

A General Consensus?

  • 4 This phrase refers to the human trafficking of British women and girls who were forced into prostit (...)

5Homosexuality was widely considered as ‘sinful’, ‘perverse’, and ‘unnatural’ in Victorian England. Consequently, it is perhaps unsurprising that a bill criminalizing same-sex relations should pass easily through parliament. That is exactly what happened to the Labouchère Amendment. Yet, this amendment is but one section of the 1885 Criminal Law Amendment Act. The passage of this act was far from being a short legislative process. As a matter of fact, this bill to amend the existing law took four years to be enacted. The main object of the 1885 Criminal Law Amendment Act, also known as ‘An Act to make further provision for the Protection of Women and Girls, the suppression of brothels, and other purposes’, was actually to protect young girls from sexual exploitation and to raise the legal age of consent for girls from 12 to 16 years old. During its first reading, it contained absolutely no reference to same-sex activity and sought rather to protect the population from declining morality in a period during which urbanization and population growth, especially in major cities such as London, were causing drastic social changes. It was first put forward by anti-vice campaigner and Chamberlain for the City of London, Benjamin Scott, who approached the Foreign Secretary, Lord Grandville to convince him of the need to reform the law in order to protect young girls who were supposedly transported to the continent for ‘immoral purposes’ i.e. prostitution. This led to the creation of a Select Committee whose report confirmed an increase in child prostitution and ‘white slavery’.4 This committee made the recommendations that were to lead to the Criminal Law Amendment Bill. It passed the House of Lords without major problems in 1883, only to be dropped by the House of Commons. It was reintroduced the following year and was dropped again. In April 1885, it was debated for the third time but failed once more, as the House of Commons was about to disband for Whit Week on May 22nd. Moreover, opposition was gathering momentum as the bill was perceived as curtailing civil liberties by increasing police powers. No vote took place, and Parliament was adjourned on May 22nd, 1885.

  • 5 In an article from the Wall Street Journal from 17th May 2012, Tobias Grey also referred to W. T. S (...)

6The following day, Benjamin Scott contacted William Thomas Stead, the editor of The Pall Mall Gazette, and one of the forefathers of investigation journalism5 (Goodwyn). Stead had already gained a reputation for leading public campaigns to influence government foreign policy in Bulgaria and the Sudan, as well as drawing attention to the iniquities of slum housing in the Capital. He had also been working alongside feminist Josephine Butler since 1876 to repeal the Contagious Diseases Acts. Stead took up the cause and started campaigning against child prostitution and wrote ‘The Maiden Tribute of Modern Babylon’, a series of extremely controversial newspaper articles on the subject that appeared in The Pall Mall Gazette in four instalments in July 1885. In the first instalment, Stead argued that while consensual sex between consenting adults was a matter of morality and did not concern the police, some ‘vices’ that were rampant in London did require police intervention. Such crimes, he stated,

. . . flourish on every side, unnoticed and unchecked—if, indeed, they are not absolutely encouraged by the law, as they are certainly practised by some legislators and winked at by many administrators of the law. To extirpate vice by Act of Parliament is impossible; but because we must leave vice free that is no reason why we should acquiesce helplessly in the perpetration of crime. And that crime of the most ruthless and abominable description is constantly and systematically practised in London without let or hindrance, I am in a position to prove from my own personal knowledge—a knowledge purchased at a cost of which I prefer not to speak. (Stead)

7Stead proceeded to divide these crimes of vice into five categories: ‘the sale and purchase and violation of children’; ‘the procuration of virgins’; ‘the entrapping and ruin of women’; what he termed the ‘international slave trade’ in girls, and finally, ‘atrocities, brutalities and unnatural crimes’. As part of his investigation, Stead went as far as to purchase a young girl: 13-year-old Eliza Armstrong. She was subjected to medical examination to prove she was a virgin and to prepare her for ‘exportation’ (Proceedings of the Central Criminal Court, 19th October 1885, 228). The revelation of this scandal caused a general public uproar and prompted Parliament to resume the debate over the Criminal Law Amendment Bill in July. It was once more defeated, but by only three votes this time. It was debated again in August.

  • 6 ‘Homophobia’ was coined in the late 1960s by George Weinberg an American psychologist, author, and (...)

8It was at this late stage in the passage of the bill, during the second Commons reading, in the early hours of August 6th, that controversial MP Henry Labouchère introduced another clause which would make all same-sex behaviour between men illegal. The motivation for Labouchère’s initiative remains a matter of debate, as he had a reputation for taking up controversial causes and was known for his strongly anti-feminist and anti-Semitic views (Hirschfield). His contemporary, Irish-American journalist Frank Harris, wrote that he could have intended this to be a spoiling amendment—one of Labouchère’s habitual parliamentary obstructionist techniques—to make the law seem ‘ridiculous’ and to discredit it. Nonetheless, although some historians have followed Harrris’s interpretation, others, such as Morris Kaplan, have highlighted Labouchère’s fierce homophobia6 by quoting the latter’s comments as editor of the newspaper The Truth in the subsequent 1889 Cleveland Street Scandal: ‘there are offences that put those who commit them beyond the pale that protects privacy. Not only are they illegal offences, but they are revolting to every man with a vestige of manly feeling’ (Labouchère).

9If his motivation remains uncertain and would be worth investigating, it is worth noticing that while it took journalistic intervention, a major scandal and a long and tedious four-year process for the Criminal Law Amendment Bill to be brought to completion, it did not even take four minutes for Parliament to approve Labouchère’s proposal. Indeed, Labouchère simply read his amendment, Mr Hopwood stressed the fact that it was not directly relevant to the matter being discussed but stated that he ‘did not wish to say anything against the clause’ (Commons, 06.08.1885 vol. 300 col. 1397–1398) and the Attorney General, Sir Henry James doubled the maximum penalty. The amendment was passed without further debate.

An Exceptionally Broad Phrasing

10Another aspect that makes the Labouchère Amendment so exceptional, in addition to the speed with which it was approved by Parliament, is its peculiar phrasing. This will be discussed from two angles. First, the misdemeanour itself will be considered: gross indecency. The Labouchère Amendment was the first legislative provision to use the phrase ‘act of gross indecency’. The term was never actually defined in any of the statutes where it was employed, which left the courts free to determine its scope. Moreover, the addition of ‘any act’ made it even more open to all sorts of possible interpretations.

11Once more, it is worth going back to one of the triggers of the passing of the 1885 Criminal Law Amendment Act, ‘The Maiden Tribute of Modern Babylon’. In the first instalment of the series, W. T. Stead specified what he considered as crime and not ‘mere’ vice. The latter group covered ‘Atrocities, brutalities, and unnatural crimes’, the fifth of the categories listed above. In the Victorian era, the word ‘unnatural’ was indeed an epithet commonly used to characterize sexual intercourse without the possibility of conception. Therefore, same-sex sexuality was perceived as intrinsically ‘unnatural’—even in scientific works like Ellis and Symonds’s Sexual Inversion (1897) that advocated the decriminalisation of homosexuality. As Victoria Bates explains,

‘Unnatural’ offences provoked more middle-class anxiety than crimes related to ‘natural’ sex, as they threatened to destabilise the family. Most so-called ‘unnatural’ offences involved non-reproductive sex, as was the case with homosexual acts and crimes against the very young, or went against religious doctrine as with incest. Medical and social commentators often proved reluctant to acknowledge that specific, ‘unnatural’ forms of lust might drive such ‘unnatural’ offences. (Bates 170)

12To that extent, the Labouchère Amendment can thus be considered as exceptional in the sense that it permitted the prosecution of those involved in virtually any sexual act between men that fell short of sodomy (defined by the criminal law as a sexual act involving both penetration and proof of emission). It thus made prosecution of a whole category of individuals much easier and conviction potentially more frequent.

13It comes as no surprise in this context to learn that the number of prosecutions and guilty verdicts in London soared after the passing of the Labouchère Amendment as shown in the following graph generated from the Old Bailey online records:

Figure 1. Sexual offences involving sex between men 1861–1897.

Figure 1. Sexual offences involving sex between men 1861–1897.

Source: Derived from data provided by Old Bailey Online (https://www.oldbaileyonline.org).

14What had been a rather rare judicial event in the 1860s and 1870s–with the notable exception of 1870–became more and more common after the passage of the 1885 law. The loose definition of the crime, as well as the absence of any need for physical evidence undeniably played a part in this sudden increase in indictments. Yet, the gap between the number of indictments and the number of convictions implies that other factors may have been at work.

15Another striking aspect of the phrasing of the offence is that it could be committed ‘in public or private’; in other words that illegal activity was not confined to the public realm, but extended to the private space of the home. The maxim ‘a man’s home is his castle’ is deeply rooted in English legal tradition as well as in the broader culture, and this proverbial expression stresses the close relationship between the idea of a home and the concepts of personal privacy and security. As William Pitt the Elder had stated in the House of Commons in 1763:

The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement! (William Pitt, 1763, cited in Brougham, 41–42)

16Indeed, William Blackstone’s Commentaries of the Laws of England (1773) made the same point in legal terms:

  • 7 For what is more sacred, what more inviolable, than the house of every citizen?

And the law of England has so particular and tender a regard to the immunity of a man's house, that it stiles [sic] it his castle, and will never suffer it to be violated with immunity: agreeing herein with the sentiments of ancient Rome, as expressed in the works of Tully; quid enim sanctius, quid omni religione munitius, quam domus unusquisque civium7? (Blackstone 223)

17However, despite the references in these quotations to ‘defiance’ and ‘immunity’, the idea of the home as a private haven of unrestricted personal freedom is anachronistic in the context of nineteenth-century debates, and indeed would not be developed until the second half of the twentieth century. In the Victorian period, the home was considered merely a place of negative freedom from the unfettered power of the state, rather than a place of positive freedom of sexual expression. Indeed, in the late nineteenth century, the home remained, first and foremost the place where morals were taught. Therefore deviancy, and all the more so sexual deviancy, had no place there. That is why, however shocking it may appear to modern eyes, it was deemed perfectly acceptable at that time for consensual sexual activity between men to lead to prosecution, even though such prosecutions were in fact rather exceptional. This legal intervention was made acceptable by what was considered the peculiarly abhorrent characteristics of the offence. This perception was also perhaps related to the discourses of aristocratic abuse of respectable working-class boys (and girls) which was a feature of the ‘Maiden Tribute’. Degenerate upper-class men could abuse young people in ‘private’ spaces such as brothels and hotels in the West End or their own London homes.

18We have stressed so far the exceptional nature of the Labouchère Amendment in so far as it allowed the prosecution of men for any kind of same-sex act, wherever it took place. Indeed, the passage of legislation on the subject was not even judged worthy of debate in Parliament. Nevertheless, this is not the only way to understand this piece of legislation, for it can also usefully be studied in the context of long-term changes in the law regarding the punishment of sexual conduct between men.

An Unexceptional Piece of Legislation?

19Seen in this light, the amendment may be better understood as part of an evolution, not revolution, of the law in this area. As sociologist Graham Neil Baxendale puts it,

. . . the Labouchère Amendment’s notoriety is based on a miscomprehension of the scope of pre-existing laws. The iconic status it holds in the history of homosexuality is premised upon the idea presented by most authors that pre-1885 private homosexual acts short of sodomy were legal. However, the most notorious scandals of the age demonstrate this was not true. Charges of attempted sodomy and conspiracy to commit sodomy were already used to prosecute acts short of sodomy. (Baxendale 149)

20That is why it is vital to bear in mind the evolution of the law regarding homosexual sexual activity. Originally, ecclesiastical authorities oversaw sex crimes such as fornication, incest, bigamy, adultery as well as sodomy. When a sodomite was convicted, he could be ‘handed over to the civil power to be burnt’ (Richards 63), but this remained a rare penalty. It all changed in the wake of Henry VIII’s break with Rome. Sodomy was criminalized in English law in 1533 under the Buggery Act which was part of a move to dispossess the Church of its power over society. It made ‘the abominable vice of buggery’ (penile penetration of the anus or penile penetration of an animal) punishable by death. By making it an explicit element in English law, King Henry VIII made sodomy trials a potential tool to eliminate political opponents such as Catholic monks in 1535. As Louis Crompton notes, ‘in 175 entries we find over 180 monks designated as “sodomites”. Given the English horror of sodomy, this would have seemed a truly damning record’ (Crompton 363). However, it’s worth remembering that, at the time, ‘sodomy’ did not necessarily involve anal intercourse (which could be either heterosexual or homosexual), but could also be used to refer to bestiality, as Jeffrey Weeks has pointed out (Weeks 2016, 12). Out of those 180 confessions (mostly obtained under torture), Crompton noted that only a dozen or so were unequivocally describing homosexual intercourse (Crompton 364).

21In order to limit the ability to convict on sodomy charges, a jurisprudence dating back to 1781 required both penetration and emission, thus making the charge much more difficult to prove. Yet, when proven, the defendant was punished to the full extent of the law. Indeed, in 1806, there were more executions for sodomy in England than for murder (Aggleton and Parker 100–02). This indicates that criminalizing acts that could be linked to male homosexuality did not start with the Labouchère Amendment, making it much less exceptional from a historical point of view.

22In Sir Robert Peel’s major reforms of the English criminal law in 1826, the death penalty was removed for many offences but remained for sodomy and abortion. The reforms also repealed the 1781 jurisprudence removing the need to prove ejaculation (Weeks 2016, 13). The 1828 Offences against the Person Act thus replaced the Buggery Act. If the maximum penalty for sodomy remained death, it is however noteworthy that the last men to be executed for sodomy were 30-year old James Pratt and 40-year old John Smith who were hanged at Newgate in 1835, so this penalty had not been enforced for more than two decades when the law was finally changed. In 1861, section 61 of the ‘Offences against the Person Act’ reduced the punishment for sodomy from capital punishment to life imprisonment. Section 62 of the same act provided a 10-year prison sentence for attempted buggery as well as for ‘any indecent assault upon a male person’ (Offences Against the Person Act, 1861, 52).

23As Baxendale notes, it was also this act that distinguished between different sorts of ‘unnatural acts’: buggery, attempted buggery, bestiality and indecent assault with another male. Thus, he states, it was ‘this Act, not Labouchère’s Amendment [that] first explicitly targeted homosexual sex’. (Baxendale 111) It should be added that Labouchère’s amendment went much further than previous laws, in that, as we have seen, it extended punishment to any homosexual act between men, newly defined as ‘gross indecency’. It also made the prosecution of homosexuals easier by not requiring evidence of penetration.

  • 8 For more details on this point, see Caroline Derry, ‘Lesbianism and Feminist Legislation in 1921: t (...)

24All this seems to corroborate Michel Foucault’s argument, made in the first volume of The History of Sexuality, that the origins of the category of the (male) homosexual date back to the late nineteenth century (Foucault 59). Lesbian activity, on the other hand, was completely ignored. At least, that was the case until 1921, when an amendment similar to Labouchère’s was introduced.8

Toward Greater Leniency?

25In terms of severity, the nineteenth century criminal justice system appeared to be moving towards easier convictions but more lenient sentences. As Figure 1 showed, there was a sharp increase in the number of both prosecutions and convictions. However, in his book Heterosexual Dictatorship, Patrick Higgins explains that these changes could have been caused by the reduction of the sentence from ten to two years under the 1885 Criminal Amendment Act (Higgins 157). This reduced sentence could explain why juries were more willing to convict.

26However, that reduction of the maximum sentence was not approved by all. As we have seen, Labouchère’s initial proposed amendment specified a one-year prison sentence, but the Attorney General, Sir Henry James, doubled it. Two years of prison was not necessarily viewed as enough of a deterrent by some. In 1889, the Director of Public Prosecutions, Lord Halsbury, stated that ‘the expediency of not giving unnecessary publicity’ was worth allowing ‘private persons—being full grown men to indulge their unnatural tastes—in private’ (DPP/1/95/3, cited by Weeks 1996, 49). Halsbury opposed making private acts visible as it would draw attention to them and potentially publicize them for unsuspecting, yet possibly, corruptible men. At the same time, it was not punished harshly enough to prevent them from indulging. He was then dealing with the Cleveland Street Scandal which would give ‘very wide publicity and consequently w[ould] spread very extensively matter of the most revolting and mischievous kind, the spread of which [he was] satisfied w[ould] produce an enormous evil’. He went further, stating: ‘The punishments already inflicted seem to me very inadequate and more likely to do harm than good . . . if the sentence could be penal servitude for life, or something by its terrible severity would strike terror into such wretches . . . I should take a different view. But . . . the only offence alleged is the new misdemeanour’ (DDP/1/95/3).

27In other words, Lord Halsbury regretted the passing of the Labouchère Amendment which did not allow for a severe enough sentence to be imposed on those found guilty of ‘gross indecency’. There is thus a certain irony in the fact that the law most associated with state homophobia and which has remained the most famous statutory intervention into the lives of homosexual men in England is also the law that significantly reduced the punishment for same-sex acts.

28Therefore, the Labouchère Amendment which seems quite exceptional at first glance may actually be considered as part of the ‘natural’ evolution of legislation regarding homosexuality. However, as we shall see in the following section, the complexity surrounding the amendment does not end there.

More Than Meets the Eye?

Policing Sex and Social Control

29So far, we have examined the Labouchère amendment primarily from the perspective of changes in the criminal law regarding sexual conduct between men. A full understanding of the significance of the legislation, however, requires broadening the focus. As Baxendale has pointed out, ‘Labouchère’s Amendment must be contextualised as part of wider political, social and moral movements largely rationalising and formalising pre-existing ecclesiastical or common law regulations on sexual activity, but also including previous statutory interventions’ (Baxendale 159).

30In the midst of the purity crusade, many laws were passed in the Victorian era to control the sexuality of the British people. As Baxendale puts it, the criminal law aimed at organizing and fostering what he calls ‘nineteenth-century punitive heteronormativity’, that only allowed a certain vision of ‘heterosexuality favouring married heterosexuals and punishing transgressors of this code conducting extramarital sexual activity’ (Baxendale 159).

31If the primary focus of W. T. Stead’s ‘The Maiden Tribute of Modern Babylon’ on child prostitution in London’s underworld was the sexual exploitation of girls, he did reveal that some boys had also been abducted and forced into prostitution. The third instalment of the series published in The Pall Mall Gazette on July 8th, 1885 describes very young boys as well as girls turned into prostitutes: ‘I have no doubt that I could discover in time a dozen or more girls of eleven or twelve who are leading immoral lives, but they are very difficult to find, as the boys of the same age who pursue the same dreadful calling’ (Stead).

  • 9 It was even rumoured that Prince Albert Victor, the eldest son of the Prince of Wales and second-in (...)

32The general purpose of the 1885 Criminal Law Amendment Act was not then centred on homosexuality as such, but rather on protecting the most vulnerable members of the population from male lust, and more precisely from rich male lust. Social class thus seems to have played a major part in the design of the law. Jana Funke has argued that ‘the Labouchère Amendment was intimately related to the Criminal Law Amendment bill in that it sought to deal with concerns regarding the sexual exploitation of boys and adolescents’ (Funke 144). Montgomery Hyde (Hyde 155) and Louise Jackson (Jackson 105–06) have made similar points. The Cleveland Street scandal revealed that young telegraph boys were selling themselves to wealthy men or even aristocrats in an all-male brothel. The scandal caused an uproar, with well-known upper class figures, such as Lord Arthur Somerset and Henry FitzRoy, Earl of Euston, named as regular patrons of the establishment.9 Not only was it considered extremely improper for aristocrats not to be able to show better control of their base instincts, but as Baxendale suggested, ‘later middle-class radicals attributed homosexual activity to the debauched aristocracy’ (Baxendale 154).

Protecting Britishness?

33As previously mentioned, one of the exceptional characteristics of the Labouchère Amendment was its extension of regulation into the home, yet another aspect that could make it rather exceptional is that it criminalized consensual sex between adults. This is in total opposition to Jeremy Bentham’s defence of homosexuality (then known as pederasty) in his 1785 unpublished treatise on the role of legislation in same-sex relations, Offences against One’s Self. In this essay, the utilitarian philosopher argued that the law had no place proscribing activities that generated pleasure, not harm. He even went as far as to argue that the prosecution was motivated by a type of ‘Hatred of pleasure’ (Bentham and Crompton 114), and considered that the antipathy caused by such a behaviour in the general population was enough of a punishment. Similarly, in his 1859 essay On Liberty, John Stuart Mill declared that ‘the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others’ (Mill 14). If Mill’s ‘harm principle’ is extended to this case, there is no crime if there is no victim. At the time of the Labouchère amendment, the philosophical case against punitive intervention to police same-sex sexual behaviour was thus well-established.

34However, these liberal ideas were far from being widespread in British society at that time. On the contrary, homosexuality was generally perceived through the scope of ‘vice’; as a temptation one had not been strong enough to resist and, as a consequence, as an immoral choice. One of Mill’s opponents, James Fitzjames Stephen in his collection of articles Liberty, Equality, Fraternity (1873–1874) vehemently attacked the ideas developed in Mill’s essay and advocated legal intervention and punishment to preserve morality and religion. It could be argued that at the height of the British Empire, it was seen as of paramount importance to produce strong and healthy British people. Homosexuality was seen in this respect as a sign of degeneration—a veritable threat to British identity. Only a strong British population would be able to rule over a global Empire without risking being overthrown by ‘savages’. Moreover, it was the country’s mission to help them become more ‘civilised’, in order to get as close to what was then seen as British superiority (Salter 252). Thus, homosexuality, even between consenting adults, was not deemed a ‘victimless crime’ as it was potentially extremely detrimental to Britishness and British influence in the world, just as moral decay was widely believed by Victorians to have accounted for the decline and fall of previous empires, notably that of the Romans.

35This could therefore explain why Stephen was also influential in exporting the template of English regulation against homosexuality in the British Empire into Canada, New Zealand and parts of Africa. Indeed, he had been appointed a legal member of the Imperial Legislative Council and the Lord Chancellor’s Office asked him to draft a criminal code, although it was never enacted in England and Wales,

It was introduced into Parliament in a Ministerial Bill in 1878. A revised bill was introduced in Parliament in 1879 and 1880. It was never enacted. Stephen’s draft was very influential overseas. It was adopted in Canada. It formed a basis for the Queensland code of 1899, which was influential in Africa. (Sanders 9)

36The Labouchère Amendment can thus be analysed as a way to protect the grandeur of the British Empire and prevent it from collapsing as so many other empires did in the course of history. The best way to sustain the Empire was to ensure the morality and the purity of its population and preserve it from decadence and moral decay.

Conclusion

37The 1885 adoption of a repressive piece of legislation regarding same-sex relations in Britain cannot be construed as an isolated event. It is but one episode in the broader regulation of sexual practices. The Labouchère Amendment was part of the 1885 Criminal Law Amendment Act, a law which was primarily aimed at preventing the sexual exploitation of women and girls. Thus, an act that is often associated with making homosexuality a crime was primarily concerned with regulating heterosexuality, limiting extra-marital sex.

38The Labouchère Amendment, however, remains of immense historical significance. As Graham Baxendale writes:

For over a century Labouchère’s Amendment was the most notorious judicial tool used to regulate sexual activity and became central to understandings of homosexual sex and the primary means by which it was made apparent to the public. This ‘notorious’ Amendment was increasingly condemned as an unwarranted and unprecedented intrusion into private conduct and from the 1950s it became the focus of parliamentary campaigns for decriminalising private homosexual activities. More recently it has even been labelled in explicitly modern terms; ‘institutionalised homophobia’ gained its most salient expression with the passage of the Labouchère Amendment in 1885. (Baxendale 32–33)

39‘Salient’ then, but perhaps not entirely exceptional. Not only was male homosexuality criminalized before 1885, but the criminalization of male homosexuality is but one aspect of the broader control of sexuality. In the context of late Victorian Britain, this control needs to be seen as part of a larger—and ultimately futile—attempt to protect the British Empire by policing gender and class as well as race.

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Bibliographie

Bates, Victoria. Sexual Forensics in Victorian and Edwardian England: Age, Crime and Consent in the Courts. Basingstoke: Palgrave Macmillan, 2015.

Baxendale, Graham Neil. The Discursive Production of Homosexual Regulation, Ph.D. University of Southampton, Southampton, 2013.

Bentham, Jeremy. ‘Offences against One’s Self’, (unpublished) http://www.columbia.edu/cu/lweb/eresources/exhibitions/sw25/bentham/index.html#02, accessed 6 May 2018.

Bentham, Jeremy, and Louis Cromptom. ‘Jeremy Bentham’s Essay on “Paederasty” 1/2’. Journal of Homosexuality, 4–1, 22 Nov. 1978, 91–107.

Bentham, Jeremy, and Louis Cromptom. ‘Jeremy Bentham’s Essay On “Paederasty”2/2’. Journal of Homosexuality, 3–4, 4 Aug. 1978, 383–88.

Blackstone, William. Commentaries on the Laws of England. In four books The fifth edition. By Sir William Blackstone, one of his Majesty’s Justices of the Honourable Court of Common Pleas. Dublin, printed for John Exshaw, Henry Saunders, James Williams, and David Hay, 1773, vol. 4.

Brougham, Lord. Historical Sketches of Statesmen Who Flourished in the Time of George III. 3 vols. London: Charles Knight, 1839.

Crompton, Louis. Homosexuality & Civilization, Cambridge, Mass.; London: Belknap, 2003.

Derry, Caroline. ‘Lesbianism and Feminist Legislation in 1921: the Age of Consent and “Gross Indecency between Women”’. History Workshop Journal 86 (1 Oct. 2018): 245–67.

Foucault, Michel. Histoire de la sexualité. 1, La volonté de savoir. 1976. Paris: Gallimard, 1994.

Funke, Jana. ‘“We Cannot Be Greek Now”: Age Difference, Corruption of Youth and the Making of Sexual Inversion’. English Studies 94.2 (1 April 2013): 139–53.

Goodwyn, Helena. ‘A “New” Journalist: The Americanization of W. T. Stead’. Journal of Victorian Culture 23.3 (3rd July 2018): 405–20.

Grey, Tobias. ‘The Father of Tabloid Journalism’. The Wall Street Journal 17 May 2012.

Hansard, House of Commons, 6 Aug. 1885, vol. 300, col. 1397–1398.

Herek, Gregory M. ‘Beyond “Homophobia”: Thinking about Sexual Prejudice and Stigma in the Twenty-First Century’. Sexuality Research & Social Policy 1.2 (1 April 2004): 6–24.

Higgins, Patrick. Heterosexual Dictatorship: Male Homosexuality in Postwar Britain, London: Fourth Estate, 1996.

Hirshfield, Claire. ‘Labouchere, Truth and the Uses of Antisemitism’, Victorian Periodicals Review 26.3 (1993): 134–42.

Hyde, H. Montgomery. The Other Love: An Historical and Contemporary Survey of Homosexuality in Britain. London: Mayflower, 1972.

Jackson, Louise A. Child Sexual Abuse in Victorian England. London: Routledge, 2000.

Kaplan, Morris B. Sodom on the Thames: Sex, Love, and Scandal in Wilde Times. Ithaca: Cornell UP, 2005.

Labouchère, Henry. ‘Are the Rich Being Shielded’. The Truth 28 Nov. 1889.

Mill, John Stuart. On Liberty and Other Essays/John Stuart Mill. Ed. and introduction John Gray. Oxford: OUP, 1991.

National Archives, London: DPP/1/95/3 Opinion of Lord Halsbury, Lord Chancellor, 7 October 1889.

Old Bailey, ‘Rebecca Jarrett, William Thomas Stead, Sampson Jacques, William Bramwell Booth, Elizabeth Combe’. Proceedings of the Central Criminal Court, 19 October 1885.

Offences against the Person Act 1861 (24 & 25 Vict. c. 100).

Parker, Richard G., and Peter Aggleton, eds. Culture, Society and Sexuality: A Reader. 2nd ed. London: Routledge, 2007.

Richards, Peter G. Parliament and Conscience. London: Allen & Unwin, 1970.

Sanders, Douglas. ‘377 and the Unnatural Afterlife of British Colonialism in Asia’. Asian Journal of Comparative Law 4.1 (2009): 1–49.

Salter, Joseph. The East in the West; or, Work among the Asiatics and Africans in London. Preface by H. Morris. London: S. W. Partridge & Co, 1896.

Stead, William Thomas. ‘The Maiden Tribute of Modern Babylon’. Pall Mall Gazette, July 1885: The W.T. Stead Resource Site, https://attackingthedevil.co.uk/pmg/tribute/, accessed 17 Apr. 2018.

Weeks, Jeffrey. ‘The Construction of Homosexuality’. Queer Theory/Sociology. Ed. Steven Seidman. Malden, Mass. & Oxford: Blackwell, 1996. 41–63.

Weeks, Jeffrey. Coming Out: The Emergence of Lgbt Identities in Britain from the 19th Century to the Present. UK ed. London: Quartet Books, 2016.

Wolfe, Alan. ‘The Homosexual Exception’. The New York Times 8 Feb. 1998: The New York Times on the Web, https://archive.nytimes.com/www.nytimes.com/books/98/03/08/home/wolfe.html, accessed 13 Apr. 2018.

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Notes

1 The word homosexual can be deemed anachronistic considering the fact that it was only coined in German in 1869 (The first known appearance of the term ‘homosexual’ in print is found in an 1869 German pamphlet by the Austrian-born novelist Karl-Maria Kertbeny, published anonymously). The first known occurrence of the word ‘homosexual” in English is to be found in Charles Gilbert Chaddock’s translation of Psychopathia Sexualis by Richard von Krafft-Ebing. The term was eventually popularized by the 1906 Harden-Eulenburg Affair, but we will use it nonetheless for practical purposes.

2 Alan Wolfe used this expression as the title to his essay published in the New York Times in 1998. The phrase is used to describe how the American middle class, in spite of a willingness to ‘go in the direction of toleration’ and ‘strong support for moral individualism’ (Wolfe), remains largely hostile to homosexuality.

3 The Criminal Law Amendment Act 1885 (48 & 49 Vict. c. 69), the full title of which was ‘An Act to make further provision for the Protection of Women and Girls, the suppression of brothels, and other purposes [Criminal Law Amendment]’.

4 This phrase refers to the human trafficking of British women and girls who were forced into prostitution in the countries of continental Europe in the late nineteenth and early twentieth centuries.

5 In an article from the Wall Street Journal from 17th May 2012, Tobias Grey also referred to W. T. Stead as ‘The Father of Tabloid Journalism’ (Grey).

6 ‘Homophobia’ was coined in the late 1960s by George Weinberg an American psychologist, author, and heterosexual homophile activist. He first used it in print in a magazine article in 1971 and in Society and the Healthy Homosexual (1972) to denote a ‘phobia about homosexuals . . . a fear of homosexuals which seemed to be associated with a fear of contagion, a fear of reducing the things one fought for—home and family. It was a religious fear’ (G. Weinberg, cited in Herek 6). Whilst conceptions of anti-homosexual prejudice were not new, the term radically placed the psychiatric problem with the heterosexual not the homosexual at a time when the American Psychiatric Association still listed homosexuality as a mental disorder and homosexual sex was illegal in most US states (Herek 8). The term is now commonly applied beyond the individual to characterise institutions, policies and laws. Thus, homophobia is not just an individual failing but a social problem of sexual stigma that ‘exists in the form of shared knowledge that is embodied in cultural ideologies that define sexuality, demarcate social groupings based on it, and assign value to those groups and their members’ (Herek 14).

7 For what is more sacred, what more inviolable, than the house of every citizen?

8 For more details on this point, see Caroline Derry, ‘Lesbianism and Feminist Legislation in 1921: the Age of Consent and “Gross Indecency between Women”’ (Derry).

9 It was even rumoured that Prince Albert Victor, the eldest son of the Prince of Wales and second-in-line to the British throne had visited this homosexual brothel.

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Table des illustrations

Titre Figure 1. Sexual offences involving sex between men 1861–1897.
Crédits Source: Derived from data provided by Old Bailey Online (https://www.oldbaileyonline.org).
URL http://journals.openedition.org/cve/docannexe/image/7597/img-1.png
Fichier image/png, 2,0M
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William Fize, « The Homosexual Exception? The Case of the Labouchère Amendment »Cahiers victoriens et édouardiens [En ligne], 91 Printemps | 2020, mis en ligne le 01 juin 2020, consulté le 08 août 2020. URL : http://journals.openedition.org/cve/7597; DOI: https://doi.org/10.4000/cve.7597

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Auteur

William Fize

William Fize is a teacher of English as a foreign language (for science and health students) and PhD candidate at the University of Lyon, and a member of LARHRA (Laboratoire de Recherche Historique Rhône-Alpes UMR 5190). He works on issues related to gender and sexuality from a historical perspective. His doctoral thesis deals with the role of sciences in the criminalisation of male homosexuality in Vicorian London. He gave a presentation entitled ‘Havelock Ellis and John Addington Symonds, Sexual Inversion: Resisting Sciences and Knowledge’ during the ‘Homosexuality and Resistance’ one-day conference organized by CRECIB in March 2019. He is also a member of the local organizing committee for the 2020 ESSE (European Society for the Study of English) conference in Lyon.
William Fize est PRAG d’anglais en LANSAD (secteur sciences et santé) et doctorant en civilisation britannique à l’université de Lyon, rattaché au LARHRA (Laboratoire de Recherche historique Rhône-Alpes UMR 5190). Il travaille sur les questions de genres et de sexualité à travers l’histoire. Sa thèse en cours porte sur le rôle des sciences dans la criminalisation de l’homosexualité masculine dans le grand Londres victorien. Il est intervenu lors de la journée d’étude « Homosexualité et résistance » organisée par le CRECIB en mars 2019 avec une présentation intitulée « Havelock Ellis et John Addington Symonds, Sexual Inversion: sciences et savoir résistants ». Il est membre du comité local d’organisation du congrès 2020 de l’ESSE (European Society for the Study of English) à Lyon.

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