Comment: Why I oppose a general pardon for historical convictions for homosexual offences

Justin Bengry writes on pledges to pardon men convicted of historical gay sex offences, saying he disagrees with a sweeping pardon, and instead argues that remembering the past and holding authorities accountable is possibly a better option.

UK Labour Party leadership contender Andy Burnham recently proposed automatic pardons for all men convicted of historical homosexual offences that are no longer crimes. This has been an ongoing conversation in the UK, which in 2013 granted WWII Enigma codebreaker Alan Turing a posthumous royal pardon. The issue reappeared in the lead up to this year’s May 7 general election, when Labour’s then-leader Ed Miliband came out in favour of case-by-case pardons for living individuals and also posthumous cases. David Cameron and the Conservatives soon followed suit, likewise promising that if were they to form the next government, men convicted of historical offences would be pardoned. Burnham’s announcement has reinvigorated this question of whether all men should have similar convictions deemed spent, pardoned or erased.

A well-publicised petition supported by Turing’s family, activists like Peter Tatchell, and celebrities like Benedict Cumberbatch and Stephen Fry demands that a royal pardon be extended to all men convicted under ‘anti-gay’ laws. More than 600,000 people have signed the petition demanding the state ‘Pardon all of the estimated 49,000 men who, like Alan Turing, were convicted of consenting same-sex relations under the British “gross indecency” law (only repealed in 2003), and also all the other men convicted under other UK anti-gay laws’. As a historian of Britain’s LGBTQ past I cannot sign this petition nor support anything more than pardons for living individuals.

Historians of the ‘queer’ past have expressed deep concerns about the state issuing royal pardons for convictions under outdated and antiquated laws against homosexual sex. As Matt Houlbrook has pointed out, ‘Pardoning Alan Turing might be good politics, but it’s certainly bad history’. The same is even more true of a general pardon that includes further posthumous pardons. I believe it offers too great an opportunity for the state to strategically forget and erase history rather than atone for the damage it has wrought on the lives of queer men.

Bad History

Why is a general pardon bad history? The call for a royal pardon is incredibly ambiguous. It fails to take into account the full scope of same-sex sexual acts and behaviours that were criminalised, and therefore inevitably underestimates significantly the number of men impacted by various laws. By underestimating the number of men affected, a general pardon not only fails to bring justice to victims, but directly implies that state oppression was neither so extensive nor as violent as history shows that it in fact was.

In contrast to the oft-cited 49,000 men convicted for homosexual offences, the Peter Tatchell Foundation estimates  that some ‘50,000-100,000 men were convicted under Britain’s anti-gay laws during the twentieth century’. These figures presumably comprise men, like Turing, who were convicted under Section 11, the infamous Labouchére Amendment, of the 1885 Criminal Law Amendment Act. The Act criminalised ‘gross indecency’ – any same-sex act short of buggery – committed in public or in private and made it punishable by up to two years imprisonment with or without hard labour. In addition to ‘gross indecency’, many men were also convicted of ‘importuning’ or ‘soliciting’ other men to have sex. From 1861, consensual anal sex was punishable with life imprisonment. Before that it was a capital offence, with the last executions only in 1835. It was still a felony from 1956. Many men were convicted under these statutes until the 1967 Sexual Offences Act partially decriminalised male homosexual acts. And even then, various homosexual offences remained on the statute books until the 2003 Sexual Offences Act came into effect the following year.

Given the state’s history of violently punishing same-sex acts, why should a pardon be restricted only to those, including the dead, convicted of crimes in the twentieth century?  Why should men fined or imprisoned in 1935 be worthy of pardons whilst men killed by the state in 1835 should not? There is surely no logical or humane way to fairly dispense justice to men convicted of these historical crimes. Buggery, after all, has been a crime in England since 1533.  And if the Peter Tatchell Foundation estimates the need for some 50,000 – 100,000 pardons in the twentieth-century alone, how many should we expect from the previous five centuries?

How are we to determine which specific historical cases would not be crimes today? Not all queer sex is consensual, after all, and cases would inevitably include examples of forced sexual encounters. And what are we to do with cases in which men were convicted of sexual offences with young men and boys? Others have already, sensationally and perhaps strategically, raised the specter of pardoning paedophiles in a general pardon, but there is a reasonable concern given the limits of what we can expect from the historical record. We may have relatively reliable information about the ages of participants in more recent cases, but what of the more distant past? This kind of detail is unlikely to have been preserved. And the legal age of consent is itself historical, having changed over time. Will we judge cases on today’s age of consent, the law at the time of the conviction, or using some other metric to apportion guilt and innocence? To answer these questions with any authority assumes a transparent and centuries-long historical record, with documents intact despite age, war and deliberate destruction. It also raises thorny questions about projecting our own sexual values upon the past.

For centuries, lives were destroyed, figuratively and literally; men were executed by the state for homosexual offences. This history should be preserved actively, publicly and loudly.  It should not be employed to distract us from the continued struggles of LGBTQ citizens nor from injustices in the present.

Good Politics?

But let’s say for the sake of argument that the current government can make good on its election promise and resolve these issues, or simply choose to disregard them.

David Cameron’s Conservative government is no friend of the UK’s LGBTQ citizens, particularly the weakest and most vulnerable among them. This may be the government that oversaw the introduction of marriage equality, even if it was introduced by Lib Dem coalition partners (and fails to provide for inheritance equality and discriminatesagainst trans people), but equality is hardly a consistent goal for the Conservatives. Many Conservative MPs, in fact, voted against marriage equality, including 43% of MPs promoted by David Cameron in a July 2014 reshuffle, and we can only assume that going forward power in the Conservative party will be inflected further in this direction. We see it already.

The current government’s austerity agenda has significant effects on LGBTQ citizens that range across employment, housing, and virtually every other service and benefit. Chancellor George Osborne recently announced further cuts, including to housing support for citizens under the age of 25. Ideologically driven, this cut nonetheless disproportionately harms LGBTQ young people who make up 25% of urban homeless youth, many of whom have been driven from unwelcoming and even physically dangerous homes. In the same 2015 budget, the Conservative government also ushered in further cuts to mental health provision, another area that should be of particular concern to LGBTQ citizens, who, because of continued persecution, often require recourse to these services in higher proportions than others. Some 48% of young trans people, for example, have attempted suicide.

Just as we must not forget the state-sponsored violence against queer men in the past, we cannot be blind to continued injustices directed disproportionately at LGBTQ Britons today. By focussing our attention on the government’s apparent benevolence with regard to the past, a general pardon for past homosexual offences serves to obscure and white-wash the government’s record on LGBTQ issues in the present.

To Understand the Past

The Protection of Freedoms Act 2012 allows men convicted of homosexual offences to apply to have a conviction declared ‘spent’, meaning that while it still exists, it can be effectively ignored. While for some this option might satisfy the moral responsibility of the state, it admittedly does little to ameliorate the emotional and historical wounds of the past. It also requires men to petition the state for any redress. I sympathise with activists’ position that the onus of responsibility for addressing past injustices should not be placed on the shoulders of its victims. Still, while I would unambiguously agree that any living individual who today still suffers the indignity of having been convicted of past homosexual offences should have recourse to have that conviction erased, be pardoned, or receive some form of restitution, I cannot endorse an uncritical and disengaged general pardon. Yet, something further is needed.

Public historian Claire Hayward has noted that Britain is one of numerous countries with no public memorial to its persecution of its own LGBTQ citizens. Unlike a public memorial, a pardon makes no attempt ‘to understand the past’, as she rightly points out. A monument to the victims of state-sponsored LGBTQ persecution instead offers the opportunity to engage with the past, with the nature of persecution and with ongoing questions of sexuality and gender. Such a monument would highlight the state’s acknowledgement of its own role in perpetrating past injustices and also signal its support for the need to celebrate diversity in the present.

A visitor peeks into the window of a memorial to homosexual victims of the Nazis (Photo by Sean Gallup/Getty Images)

I am a gay man but I’m also a historian, and I’m deeply invested in the life stories, defeats and celebrations of the past. I’m profoundly concerned that the state not be permitted to overshadow the injustices it meted out in the past with strategic (if, for some, well-intentioned) gestures in the present. Neither the British state nor its citizens shouldever be permitted to forget or to sweep aside its role in the destruction of queer lives. The state must therefore be held publicly accountable. Far better to write these injustices indelibly in stone, than to erase the past with a pardon that exonerates the state as much if not more than the victims to which it purports to bring justice.

This post originally appeared on Notches: (re)marks on the history of sexuality, a blog devoted to promoting critical conversations about the history of sex and sexuality across theme, period and region. Learn more about the history of sexuality at Notchesblog.com

Justin Bengry is an Honorary Research Fellow at Birkbeck, University of London and lead researcher on the Historic England LGBTQ heritage and mapping project Pride of Place. Justin’s research focuses on the intersection of homosexuality and consumer capitalism in twentieth-century Britain, and he is currently revising a book manuscript titled The Pink Pound: Queer Profits in Twentieth-Century Britain. He tweets from @justinbengry

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