The Homosexual(ity) of Law

By Leslie J. Moran | Go to book overview
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The meaning of ‘homosexuality’ 1 was an immediate and enduring problem for the Wolfenden Committee. The committee addressed the matter by way of a consideration of the meaning of the phrase ‘homosexual offences’, which was to be found in the terms of reference given to the committee by the government of the day. The committee was directed to consider ‘the law and practice relating to homosexual offences and the treatment of persons convicted of such offences by the courts’. 2 The problem of the meaning of the phrase ‘homosexual offences’ plays an important role in the Wolfenden review. Throughout the deliberations, the phrase appears to stand as the enigma in need of resolution at the heart of the review. As such it is important to recognize that this enigmatic phrase worked as an engine that promoted a great proliferation of speech about homosexuality in general and ‘homosexual offences’ in particular (Barthes 1990; Moran 1991a). These discussions not only dominated much of the proceeding before the committee, but also dominated its own deliberations and the discussions that circulated around the final report (see Grey 1992; Hall 1980; Jeffrey-Poulter 1991; Newburn 1992; Evans 1993). The Wolfenden review has particular importance as it provides a snapshot of the process whereby homosexuality comes to be imagined as the ‘homosexual’ of law.

The objective of this chapter is to undertake an analysis of the emergence of this ‘homosexual’ in the law. First, consideration will be given to the Wolfenden Committee’s attempts both to formulate and to resolve the enigma of ‘homosexual offence’. While the committee offers a solution to the enigma in its definition of ‘homosexual offences’, the analysis will demonstrate the way in which this solution merely reformulates the enigma and sustains it. Thereafter, taking the material presented to the committee, the second half of the chapter, drawing upon Foucault’s insights into the historicity and materiality of sexuality (Foucault 1981 a), will seek to provide an alternative view of the meaning of the ‘homosexual’ that makes sense and nonsense of the phrase ‘homosexual offences’.

The enigma of the meaning of the phrase ‘homosexual offences’ appeared to the Wolfenden Committee in the following way. The committee found that the phrase ‘homosexual offences’ did not refer either to a particular named offence or to a discrete category of criminal offences known to English or Scots law. 3 Nor, at the


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