Note: this post focuses on UK laws and is by necessity limited to my own country.
Content warning: discussion of sexual abuse and violence, criminalisation of consensual sex, bodily mutilation, rape and homophobia.
Sexuality has been criminalised in various ways for the vast majority of human history – in particular female sexuality, LGBTQ+ identities, and anything else the cultural norms of the time deem “deviant.” This post will explore a few of the more fucked up laws of the last 100+ years…
Hysteria & Nymphomania
Around a third of female patients admitted to asylums in the Victorian era suffered from this supposed “mental illness”. “Symptoms” included promiscuity, bearing illegitimate children, or masturbating. To say that these places were prisons is probably understating the horrors these women would have suffered – at the worst end of the spectrum, rape and murder of |”inmates” were not uncommon. In the 1860s, clitoridectomy – the surgical removal of the clitoris – became briefly accepted as a treatment for various “conditions.”
Criminalisation of Male Homosexuality and the Sexual Offences Act
Any act of homosexual sex between two men was criminalised in England and Wales until 1967 and in Scotland until 1980. The Buggery Act of 1533 made “buggery” (sex between two men) punishable by death. This was replaced by the Offences Against the Person Act 1861, which reduced the highest sentence to life imprisonment. Male homosexual sex remained a crime until the Sexual Offences Act 1967 finally decriminalised it between consenting men over 21. (The age of consent for heterosexuals was sixteen. 21 was lowered to 18 in 1994 and only equalised to 16 in 2001.)
Interestingly, sexual activity between two women was never technically criminalised in the UK. An urban legend suggested that this was because Queen Victoria held that “women do not do such things”. But historians now widely consider this to be untrue. Some suggest the male establishment avoided legislating on lesbianism for fear of giving women ideas. Others believe that the possibility simply did not occur to the male lawmakers of the day. Whatever the truth, until the age of consent was legalised across the board in 1994, there was no statutory age of consent for lesbian sex.
Two high-profile men who fell foul of this law were Oscar Wilde, who was sentenced to two years’ hard labour in 1895 and died 3 years after his release, and Alan Turing, who killed himself in 1954 after being sentenced to chemical castration for “gross indecency” two years earlier.
It was completely legal for a man to rape his wife in the UK until 1991.
Read that again.
I’m not very old and that was within my lifetime.
This is because, historically, marriage was a contract of ownership and women were considered the legal property of their husbands. Sir Matthew Hale in his History of the Pleas of the Crown (1736) wrote that “the husband cannot be guilty of Rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract.”
In other words, by consenting to marriage (and the concept of “consent” is dubious at best under a system in which a man could sell his daughter off to the highest bidder) a woman was consenting to any and every sexual act her husband might wish to perform upon her.
Again, this has only been a crime in the UK for 26 years.
Section 28 or Clause 28 was enacted in 1988 by Margaret Thatcher’s Conservative government and stated that any local authority “shall not intentionally promote homosexuality or publish material with the intention of promoting homosexuality” or “promote the teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship.” In other words, homosexual sex had become legal two decades previously, but discriminating against LGBT+ people by schools and local authorities was not only legal but practically government mandated.
In practice, Section 28 made it illegal for authority figures like teachers to tell children that being LGBTQ was okay. This led to not only widespread homophobic bullying with little to no recourse, but also LGBT+ youth support and social groups, particularly in schools and colleges, being shut down for fear of breaching the Act.
This law was only taken off the books in 2003. I was thirteen in 2003 – I’d already had some 3 years of whatever shitty sex ed schools had to provide. At no point had we been told that being anything other than straight was even an option. I was questioning my sexuality at 13. It might have saved me many years of confusion and self-loathing if my teachers had just been able to say, “some boys like boys and some girls like girls and some people like both and by the way, boy and girl aren’t the only gender options.”
BDSM: The Spanner Case and beyond
The Spanner case was a landmark case in 1990. 16 gay men were handed sentences of up to four and a half years in prison for engaging in consensual sadomasochistic activities. Their defense – that it was all consensual – was denied and the convictions have since been upheld. This case is complicated – there was video evidence (technically extreme pornography) and an extensive investigation of what the police initially thought was a snuff film, meaning the investigators may well have felt compelled to bring criminal charges so that the investigation had not been a “waste” of time and money.
Consent is not always a defense. Under UK law, you cannot consent to assault. Judge Rant decreed during the Spanner trial that ‘bodily harm applied or received during sexual activities was lawful if the pain it caused was ‘just momentary’ or ‘so slight as to be discounted.” His judgement applies also to bodily marks such as those produced by beatings or bondage. These too, according to him, must not be of a lasting nature. In essence, Judge Rant decided that any injury, pain or mark that was more than trifling and momentary was illegal and would be considered an assault under the law. This means that while most common BDSM activities are not illegal to perform in and of themselves, more extreme acts could technically fall foul of the law – however consensual they may be.
There are very very few documented cases on the books, but involvement in BDSM is not legally protected. In theory, a person could be fired, lose custody of their children or be evicted from rented accommodation for participation in BDSM.
The amazing organisation BacklashUK campaigns for sexual freedom and believes that these laws and others like them are outdated, harmful and discriminatory. We agree. That’s why we’re supporting them with Smutathon 2017. Please donate here if you believe this work is important.