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Monday, 23 September 2013

An original misreading of the Labouchere Amendment

In spite of the amount of historiography there now is on homosexuality in C19th Britain and the ways it was controlled and policed, one still comes across people asserting that the 1885 Labouchere Amendment to the Criminal Law Amendment Act 'made homosexuality illegal' (even though male-male sex had been a capital crime until 1861 - with the last actual executions taking place in 1834 - when life imprisonment was substituted under the Offenses Against the Person Act).

But this is in entirely new realms of misunderstanding the Amendment:
An 1885 legal reform known as the Labouchere Amendment had an unforeseen loophole that suddenly made masturbation (as well as fellatio) legal. 
As if masturbation had previously been legal and as if the law had taken specific cognisance of fellatio before 1885. Variations on penetrative sex between two men had usually been subsumed under 'attempted sodomy' or 'indecent behaviour'. Demands for oral sex within marriage sometimes featured a part of a plea of cruelty in matrimonial cases.

But masturbation, as opposed to indecent exposure, was not illegal. The 'solitary vice' would surely have presented particular difficulties in policing. But, as I argue in Sex, Gender and Social Change in Britain, 1880 to the present it provides a particularly striking example of a sexual behaviour which, though not illegal, was nonetheless highly stigmatised and subjected to other forms of control.

Perhaps the author of the article believes that the law mandated the imposition of similar preventive devices upon conviction?

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