Was this ground for divorce ever invoked, 1923-1970?

I have long considered the intricacies of English divorce law one of my topics of niche pedantry, and will happily, though perhaps not for my hearers, discourse of the errors made in historical fictions when invoking the dissolution of marriage as a plot-point. Also the sometimes curious lack of interest of biographers in how a wife had managed under a grossly unequal law to get quit of her husband. But I recently discovered a new twist.

I have somewhat belatedly been digging into questions a couple of people raised with me last year about Lord Dawson's contribution to the House of Lords debate on the Matrimonial Causes Bill 1936. This became the 1937 (Herbert) Act, extending the grounds for divorce beyond simple adultery in either party to include cruelty, desertion and insanity. In the course of his speech, Dawson said:

[I]t is an important omission from the Bill. In the case of homosexuality I shall ask that this be made a cause alike for men and women. It is time for equality in that matter.

 Except, I had been under the impression that homosexuality was not grounds for divorce.

However, on doing a little digging, one discovers that, going back to 1923, it appears that in theory at least, there was an anomaly that a wife could petition on the ground that her husband had, since the celebration of the marriage, been 'guilty of rape, sodomy or bestiality': but this would, presumably, mean convicted of a serious sexual crime and sent down for it. These had already been among the causes which, added to simple adultery, had provided women with grounds for divorce under the 1857 Act.

This does, though, rather preclude the kind of equality before the law that Dawson was positing, since lesbianism was not a crime under English law at the period - its depiction in literature (as in the case of The Well of Loneliness) might be deemed obscene but the actual practice was not illegal. The Amendment he suggested: 'has since the celebration of the marriage been guilty of the practice of homo-sexuality' raised considerable questions and was not accepted.

I do have remaining questions as to whether there are divorces on record in which bestiality or sodomy was the ground invoked, or whether, with the possibility of this coming into court, the husband just did not defend the action or did the stock collusive procedure of hotel room + hired co-respondent. I also wonder whether 'gross indecency' under the Criminal Law Amendment Act 1885 counted or whether a strict definition under the Offences Against the Person Act 1861 applied.

IWD: A Centenary to Celebrate in 2024, and an anniversary

There have been various mentions that this year is the centenary of the first - if short-lived - Labour Government in the UK. Its coming to power (however limited that power was in practice) was greeted by the growing birth control movement of the period as a suitable opportunity to press for permitting advice to be given in local authority maternity clinics under the auspices of Public Health Departments. This had already been an aim of the movement - clinics had been set up to meet existing need but were few and far between, and were intended to provide a model for public provision.

Early in 1924 the Ministry of  Health published the report on Maternal Mortality by Dr Janet Campbell, Senior Medical Officer for Maternity and Child Welfare. It revealed shocking levels of annual death in childbirth and widespread induced abortion; and that the risks were greater the larger the family. However, among the suggested remedies, birth control was not mentioned.

On 9 May 1924 there was a substantial deputation to the new Minister of Health, John Wheatley, by a group including H. G. Wells, Dora Russell, doctors, Labour MPs, and members of the Labour and birth control movements, to ask that 'welfare centres shall be permitted to give birth control information to such mothers as may desire it'. The focus was on the lives and well-being of working-class women. There was an assumption that better-off women would be able to obtain contraceptive advice from their private medical practitioners (there is a good deal of evidence, however, see my Hidden Anxieties, that the vast majority of doctors were ill-informed on the subject even when they were willing to talk about it).

Wheatley refused to introduce so controversial a measure involving public funds without express Parliamentary direction; arguing that religious feelings were involved and that there was no public mandate. A petition with six thousand signatures demanding an end to the Ministry's opposition to birth control instruction in welfare centres was rejected, but when submitted to the National Conference of Labour Women on 14 May, they refused 'to accept a a further shelving and temporising resolution of its executive' and voted in its favour by an overwhelming 1000 to 8.

As a result, the Workers' Birth Control Group, which had already been in the planning process, was set up. Unlike the other organisations at the time, it was not establishing clinics, but activitating public opinion, and lobbying local and central government authorities for the provision of advice in publicly funded centres. For tactical reasons, it positioned itself as representing 'working mothers', and its public face was to consist of (married) 'men and women who had known the responsibility of parenthood'. An exception was made for Dorothy Jewson, MP, one of their major Parliamentary supporters; however, although Stella Browne was very much part of the group and tirelessly addressing meetings all over the country, she was not publicly associated with it. (Her open support for the legalisation of abortion was felt to be inexpedient at the particular political moment.)

In 1930, following the passage of a wide-reaching Local Government Act by the Labour Government in 1929, the Ministry of Health quietly conceded a Memorandum 153/MCW on the giving of birth control advice in local authority clinics to women whose lives were endangered by further pregnancy. At first this was issued only to Medical Officers of Health who specifically enquired about the position, but was eventually leaked in Birth Control News by Marie Stopes and disseminated by interested parties including the WBCG.

The WBCG decided that its original intention had been achieved, and dissolved itself. Several of its leading members joined Stella Browne in the struggle for abortion law reform.

However, it was to be a long time before birth control was fully accepted as part of health care. It was not integrated into the National Health Service in 1948 and the terms under which it was provided remained those formulated in the 1930s by Ministry of Health circulars 153/MCW and 1408 of 1934 (which extended the grounds upon which advice might be given). It was left in the hands of the Family Planning Association (previously the National Birth Control Association) or the discretion of individual doctors, and not included in the curriculum of medical schools. This entire process pretty much follows the general model I laid out in my 2010 article in Socialist History 36: '"No sex, please, we'e socialists": the British Labour Party closes its eyes and thinks of the electorate'.

Contraception was finally incorporated into the NHS under the NHS Reorganisation Act 1973 - free family planning services, and supplies subject to a prescription charge. In 1974 Labour returned to power and Barbara Castle, as Secretary of State for Social Services, announced the removal of the charge, irrespective of age or marital status (as had been the situation in many areas following the permissive 1967 Edwin Brook Act). So, a 50th anniversary to celebrate as well.

Images from the Workers' Birth Control Group leaflet from the relevant file in the Family Planning Association archive in the Wellcome Library, SA/FPA/A/13/95A

 

A welcome return to Victorian values

I.e. those Victorian values embodied in Alfred Swaine Taylor's 1879 Manual of Medical Jurisprudence in his discussion of the question of abortion. In discoursing of a case in which, to his distaste. 'the medical man appeared in the capacity of an informer as well as expert', he offered the opinion that the medical man 'should refuse to... lend himself in any way as a detective for the purposes of a prosecution'.

That is, doctors were not in the business of grassing up women who had had abortions, though at that period, they would almost certainly have mainly encountered them when they were at the point of death. Swaine Taylor commented on the frequency of occurrence of miscarriage, both from natural causes and accident.

It was reassuring, in the light of the recent spate of prosecutions of women under the 1861 Offences Against the Person Act for procuring their own abortions, to read that the Royal College of Obstetricians and Gynaecologists has issued a statement that 'it is "never" in the public interest to report women who have abortions, and that they must be safeguarded'.

The organisation says it is "concerned" by the rising number of police investigations following abortions and pregnancy loss, and the effect this might have on "especially vulnerable" patients.

Dr Jonathan Lord, RCOG's medical director, told the BBC: "A law that was originally designed to protect a woman is now being used against her.

"We have witnessed life-changing harm to women and their wider families as a direct result of NHS staff reporting women suspected of crimes, and we just don't think that would happen in other areas of healthcare.

"We deal with the most vulnerable groups who may be concerned about turning to regulated healthcare at all, and we need them to trust us".

Dr Lord said he believed some NHS staff had shared information with police because they were "ignorant" about confidentiality regulations.

The centrality of concern for women's care was manifested in the early twentieth century following complaints by police and the judiciary that medics ought to make more effort to extract information about illegal abortionists from the women they treated. The Royal College of Physicians sought legal counsel and passed a resolution ‘Concerning the Duties of Medical Practitioners in Relation to Cases of Criminal Abortion’: these stated the ‘moral obligation’ to respect the patient’sconfidence. Without her consent a doctor would not be ‘justified in disclosing information obtained in the course of his professional attendance’. However, if a doctor was convinced that criminal abortion had occurred, he should urge the patient, especially should she be likely to die, to make a statement, ‘provided always that her chance of recovery are not therefore prejudiced’. If she refused to make a statement, the doctor was under no obligation to take further action except those to do with his medical attendance upon the patient.