Claire Hayward’s recent blog post on ‘pardoning the past’ examined the meanings, motives and problems with the recent attempts to encourage pardons for the 49,000 men convicted of ‘gross indecency’ with males in Britain after the introduction of the 1885 Criminal Law Amendment Act. The petition has attracted over half a million signatories. Claire Hayward rightly queries the inherent vagueness of the petition and its failure to explicitly detail just who would receive pardons and, as Matt Houlbrook has questioned, for what forms of offence.
I was recently consulted on a similar move for Scotland. This throws up some serious questions about prosecutions in Scotland. Unlike what occurred in England there were relatively few successful prosecutions for private consensual sex between adult males north of the border during the 20th century; indeed it was a policy of successive Lords Advocate in Scotland not to prosecute private, consensual sex between men. The main focus of the law was upon men who engaged in sex in public spaces: in ‘cottages’, tenement closes, parks; and men who sold sex on the streets of Scotland’s urban centres. This was not the result of ‘liberal thinking’ but was chiefly the result of evidential requirements under Scots Law. ‘Public’ sex between men continued to be prosecuted in England and Wales beyond 1967, and in Scotland beyond 1980, and continues to occupy a grey area in the performative dynamics of queer sexualities. For many men, unaware of or unwilling to engage with the emerging ‘queer scene’ in Scotland during the first three quarters of the 20th century, public toilets and parks offered an opportunity (sometimes the only opportunity) for sexual encounters.
Scotland’s foremost homosexual law reform organisation, the Scottish Minorities Group, was uncertain in how to view ‘public sex’ between men. It initially viewed the men who engaged in this behaviour as socially inadequate or mentally ill, before turning its focus onto the entrapment of participating parties by the police, using agents provocateurs. The group went as far as to suggest to city councils that they erect signage in ‘popular’ toilets warning that arrests were likely. As early as the 1930s cities such as Edinburgh closed a number of public toilets under police advice, due to their popularity with men seeking sex. The idea that homosexual men were subverting the use of lavatories quickly escalated into a fear of ‘predatory’ behaviour, which exercised many in the Scottish police forces and legal establishment. Members of the police and legal establishment in Scotland were fearful not only about the misuse of public spaces but by the potential visibility of such behaviour.
Cottaging, and other forms of public sex continue to be the focus of legal intervention. As the majority of prosecutions for ‘adult’ homosexual offences in Scotland were the result of such activities does this mean that these men’s offences are not pardonable? Do we then go down the road of determining whether instances were the result of preference or opprobrium – I’m sorry Mr Smith, you didn’t make the cut? What about the age of participants? Or will this take us down the road of determining acceptable or unacceptable historic sexual offences, which undoubtedly would be seriously lacking historical context? – A point that Matt Houlbrook makes lucidly in his blog post.
I certainly agree with Claire’s sentiment that historic offences should be wiped, but in Scotland it’s a complex issue.