When Kulenthiram Amirthalingam returned to his native Malaysia from Canada to visit his boyfriend of 12 years in 2003, he was harassed by the other man’s family. They soon got the police involved.
Amirthalingam was held in jail for five days. There he was beaten, held underfoot, and sexually harassed by the police. They were trying to extract a confession.
Another man before Canada’s Immigration and Refugee Board is Gareth Henry, a Jamaican gay activist. He’s personally known thirteen victims of anti-gay murder in the country of his birth. Police harassment there is constant, and according to Amnesty International, gay men who’ve been arrested in Jamaica have been brutally mistreated by police, and left to the mercy of their fellow inmates.
The laws that have been used to persecute Amirthalingam and Henry in their home countries are usually referred to in the popular press as “sodomy” laws. But “sodomy” laws have always been difficult to apply because they require a witness of some kind to an act of sex.
Instead, the real danger in both Malaysia and Jamaica is something called the “gross indecency” laws. You could once find these laws all over the former British Empire, with a few exceptions like India. Their vague language has been used to criminalize everything from sex acts not covered in the “sodomy laws,” to dancing between men, and even to a simple kiss.
These laws still exist in Malaysia, Jamaica, Singapore, Trinidad and Tobago, and Saint Kitts and Nevis. Until the 1960s, they were near-universal in the former British Empire.
Their most famous victim in Canada was George Klippert, a mechanic from the Northwest Territories who’d made the mistake of casually admitting to a police officer that he’d had sex with four other men in what the CBC archives specify as “consensual, private, non-violent acts.”
In Great Britain, of course, the celebrity victim of this crime was Oscar Wilde, who was sentenced in 1895 to two years and hard labour for his affair with Lord Alfred Douglas.
These days, people simply assume that the laws in Canada and Britain were on the books but rarely applied. This concept, while comforting, is wholly inaccurate. In the first half of the 20th century, the use of these laws became more and more common. The Wolfenden Report – a report of a British government committee led by Sir John Wolfenden on “homosexual offences and prostitution” – published detailed statistics on the use of the “gross indecency” law in England and Wales. In 1945, there were 201 trials in these countries for this crime. In 1951, there were 746 trials resulting in 675 convictions. In 1955 there were 995 cases, resulting in 887 convictions. The overwhelming majority of convictions resulted in jail time.
In Canada, the justice system originally planned to lock Klippert up and throw away the key – as a “dangerous offender,” he would have been given actual life in prison with no chance of parole. Thus, as late as 1965 in this country, homosexuality could be punished more stringently than most murders, if the offender admitted they were gay or bi, and thus likely to “re-offend.”
The Wolfenden Report noted that several people they spoke to in Britain in 1957 referred to the gross indecency law as “the blackmailer’s charter.” “Sodomy” laws required witnesses, but almost anything could be used in a charge of “gross indecency” because the law was so vague. A kiss, a stained sheet, a love letter, and one’s mere presence in a gay bar became evidence that any blackmailer could make money on.
These laws also gave rise to another form of blackmail – one more insidious than the monetary kind. A clear pattern emerges from the countries that had gross indecency laws – a pattern of police harassment. Often these threats (and, in some cases, acts of torture) did not lead to arrest. After terrorizing their victim, the police let him free with the implicit understanding that any complaint against them for the threats and violence could result in gross indecency charges. Their word against the police in such matters would likely result in a conviction. This was as much the case in Montreal in the 1950s as it is now in Jamaica.
The Invention of “Gross Indecency”
For the thousands upon thousands of men worldwide whose lives were destroyed by these laws, it might come as a surprise to know that they were originally an afterthought, tacked on to the bottom of a bill dealing with female prostitution.
Radical MP Henry Du Pré “Labby” Labouchère was the father of the Labouchère Amendment, as the “gross indecency” law was known. No one knows why he proposed the new law – it was out of character with his usual anti-poverty, anti-racism, pro-democracy style of firebrand politics.
Caryn E. Neumann, in an article on the amendment at glbtq, suggested that the law “may have been another attempt to protect the weak from predators.” In the very gendered statutes of the time, most laws against sexual assault protected women from men. The “sodomy” laws did double duty in protecting men and boys from rape. Labouchère may have been trying to protect males from other kinds of forced sex.
I’m inclined to agree with Neumann. Labouchère’s defence of his amendment makes it pretty clear he was thinking about sexual abuse, not consensual acts:
”…[Labouchère said that this] was his amendment, and the meaning of it was that at present any person on whom an assault of the kind here dealt with was committed must be under the age of 13, and the object with which he had brought forward this clause was to make the law applicable whether under the age of 13 or over that age.”
Labouchère didn’t bother to explain to explain further, but it’s obvious from his use of the word “assault” and his concern for the victim that he was worried that adult men could be sexually abused, either by force or by other forms of coercion. As a champion of the poor, Labouchère may have been worried about servants and employees being forced into sex by their employers.
The amendment was only subjected to a minimum of debate – it had come before parliament in the last days of the session in August 1885, and everyone was eager to get home. An MP named Warton asked why it was being tacked on to a bill that had nothing to do with it, and Sir Henry James asked if the punishment shouldn’t be more severe.
This second criticism carried the day, and in its final form, the law specified up to two years imprisonment, plus whipping.
”Gross Indecency,” the Police, and the Courts
If Labouchère had intended the bill to be about sexual abuse, that’s not how law-enforcement officials and the courts understood it. Ten years after the bill was passed, Oscar Wilde and his partner were both sentenced for consensual “gross indecency” with one another, and the judge felt that two years was “totally inadequate for a case such as this.”
In a single decade, the law had metamorphosed from a tool to protect the vulnerable into a tool of repression.
The police in particular found it a useful law. From their point of view, it was difficult to tackle the “problem” of homosexuality, because the “sodomy” law only criminalized one particular sex act. Unless two men were caught in that act, prosecution for sex between consenting adult men was nearly impossible. The Labouchère Amendment would become the main weapon in the police arsenal, a tool to help them contain what was seen as a growing problem.
The new law’s strength was that it was, vague. Because no definition of “gross indecency” existed, the police and courts could stretch that definition around any sex act between men, and even over little gestures of affection.
This was a fundamental shift. The “sodomy” law was targeted at an act, but the “gross indecency” law was aimed at a group of people. The “sodomy” law didn’t care about motivation beyond the simple matter of consent, while the “gross indecency” law was all about motivation – any act or word that made manifest same-sex attraction was now a criminal offence, and so ultimately it was the attraction and not the act that were illegal.
Historian Byrne Fone describes what this shift meant for homosexuals at the end of the nineteenth century and the beginning of the twentieth:
”The state assumed the right to police, control, and investigate any act by a person suspected of homosexual inclinations. Blackmailers, always a threat, were given a much-wider scope, since they could even use the imputation of homosexuality – a careless word, an insinuating letter, an unsubstantiated accusation – as a weapon.”
The law was soon copied into the colonial laws of Britain’s possessions, and was duplicated into the codes of independent Commonwealth countries.
In my next instalment, I’m going to turn to the arrival of this law in Canada.
Sources: Xtra.ca, the CBC, and Amnesty International USA’s websites have provided invaluable information on the state of gross indecency laws around the world, and the attempts of some of their victims to claim refugee status in Canada. Links on Wikipedia have provided the actual legal codes of the countries in question. A good background on the Labouchère Amendment can be found in Caryn E. Neumann’s article in glbtq: an encyclopedia of gay, lesbian, bisexual, transgender, & queer culture. The Wolfenden Report and the statistics in contains can be found in full-text here. For the situation on Montreal in the 1950s, the best source is the first section of Sortir de l’Ombre: Histoires des communautés lesbiennes et gaie de Montréal, ed. by Irène Demczuk and Frank W. Remiggi. As always, Byrne Fone’s Homophobia: A History has been quite useful, and a backgrounder on the Klippert case can be found on the CBC Archives online. The quote from the judge’s verdict in the Wilde trial comes from an online transcript of the case from the site of the law school of the University of Missouri-Kansas. Labouchère’s defence of his bill is in the Hansard for the British House of Commons, for August 6, 1885.