Before 2012, any convictions of same sex related crime would continue to follow the individual. Even after all anti-gay legislation was repealed, the old convictions flowing from them were never removed. In 2012, Britain responded by introducing statutory pardons for men convicted of defunct same sex related crimes. Then, in 2017, following the 2013 pardoning of Alan Turing for his conviction of gross indecency, the Alan Turing law (or the Policing and Crime Act 2017) extended this policy to cover more offences, but the scope was still considered far too narrow, covering only nine old offences. Particularly, the more low-level offences – which were easier to be convicted of – were omitted from the pardon. Campaigner Lord Cashman specifically highlighted ‘solicitation by men’ as a blind spot of the Alan Turing law. This meant gay men could be arrested for the act of flirting with another man, which evidently left more gay people with lasting convictions than more private offences. Thus, recently, the pardon policy was extended to cover more offences, rendering most eligible for pardons, but, after decades of stigmatisation and unjust treatment as a result of their criminal records, is this all too little, too late for gay individuals?
A History of Equating ‘Gay’ with ‘Criminal’
From 1533, the Buggery Act was passed, and this was the beginning of a long history of outlawing and isolating gay people in Britain. The law criminalised anal sex and the sentence was death. Furthermore, the death penalty for same-sex related crimes did not end until 1835 when James Pratt and John Smith were the last two men to be executed for ‘buggery’. After the Buggery Act was abolished, the Criminal Law Amendment Act 1885 passed provisions which essentially forbid any sexual activity between men under the term ‘gross indecency’. Notably, both Oscar Wilde and Alan Turing were convicted and punished respectively under this Act.
Following this, the first big breakthrough: The Sexual Offences Act 1967 legalised private sexual acts between men over 21. This implied two things: any public acts that are considered ‘sexual’ by a jury are potentially criminal and the age of consent was 21 rather than 16. Regardless, Britain saw one step forward and two steps back as Prime Minister Margaret Thatcher banned the teaching of ‘homosexuality’ as an acceptable family relationship in 1988 and this was not repealed in England until 2003. As the 21st century continued, gay men could be open about their sexualities in the armed forces by 2000, the granting of rights to a same-sex civil partnership was permitted in 2004 and gay marriage was finally legalised in 2014.
Despite legalising consensual sex between men in 1967, the remainder of Britain’s legislative agenda to compensate for the treatment of gay people historically has been delayed. The age of consent for men was not brought down from 21 to 16 until 2001, being openly gay in the armed forces was illegal until 2000, gay marriage was not legalised until 2014; What benefit does decades late legislation offer the individuals who suffered at the hands of the government? Now, the same issue is pertinent regarding the pardoning policy. The mishandling of the pardon in its earlier stages, by limiting its scope, and currently, in making individuals apply for the pardons rather than automatically granting it, is yet another example of the miscarriage of justice for gay people. As a criminal record follows the individual, the impacts on their careers and overall enjoyment of life are substantial. Men like George Montague, a 99-year-old World War II veteran, have only just now become eligible to apply for a pardon. But, what about the decades of struggling to find a job or the stigmatisation? It seems just as the oppressed minority cannot escape the convictions of their past; Parliament cannot evade the past of its previous legislative programmes.
The Legislation Issue
There are two key questions the legislatures must consider regarding its own past: what do we do with the consequences of old oppressive legal agendas and how should we move to facilitate for the harm of those wronged by them? Approximately 65,000 men were convicted of same-sex related crimes, and it’s estimated around 15,000 are still alive. Although the pardon stretches to posthumously disregard a man’s crimes, the vast number of gay men who’ve passed since their conviction emphasises how long Parliament has waited to mark a clear line between then and now. As for the remaining 15,000 men, the application aspect of the pardons policy has been criticised. Most notably, MP Chris Bryant during the second reading of the Bill in 2016 highlighted this issue:
“There is a real problem about trying to force people to go through another process. For someone now in their 70s or 80s, the conviction might have been like a brand on them for their entire life. It might have caused terrible problems in their family life. It might have meant that they were never able to do the job that they wanted to do, such as a teacher not being able to go back to teaching. Friends and relatives might have shunned them. It might have made them feel terribly ashamed. Why on earth would they want to write to the Home Secretary, asking, “Please may I be pardoned?” Why on earth would they want to go through that process all over again? Why on earth would they want someone to analyse whether they were guilty of something way back when?”
As Bryant emphasises, the reliving of the conviction and the bureaucratic analysis of such doesn’t feel just. Perhaps there is a belief that the law should not apologise for the harm it has caused in the past, but I disagree. As a form of rectification, the pardons policy should be automatic in its undoing of each conviction. Rather, in making the process deliberate, the pardons policy almost implies that there is no urgency in disregarding these wrongful convictions.
On that, some of the previously convicted consider the pardon akin to an admission of guilt. To be pardoned is to admit there was a wrong in the first place. The language of the legislation in this regard could be considered problematic, which gives more weight towards a shift to a more remorseful policy plan. One that incorporates an automatic removal of the records rather than an application for pardoning.
The Law and Changing Attitudes
Movement from the criminalisation of gay people to an overall legislation-encouraged protection is likely one of the biggest social changes in the past century. It’s an interesting view into the legal implications of a societal change – evidently, it’s more accurate to say that Parliament reacts to society rather than vice versa. Repealing legislation is essentially to say society has changed and so our legislative agendas will follow. It happened with the rights of women, with ethnic minorities, and now with LGBT individuals. Some fear that with society becoming ‘politically correct’, Parliament may respond with laws reflecting this. But the fear is misguided. Parliament exists as a body that reflects the best interests of the public, not their greatest desires.
Overall, perhaps it is true that Parliament’s legislative paths reflect its respective contemporary society, but the extent to which there must be a change for Parliament to respond is vague. It is clear that the huge change in attitudes towards gay people did incentivise legislative change, but the impact of repealing oppressive laws is that both the victims and the legislature cannot elude the continuing consequences. However, bearing the errors of a time period decades after the fact has the effect of effectively devastating a victim of such error’s later life. Thus, the onus is on Parliament to rectify for old, damaging laws and listen to the victims as to what rectification is necessary.
