The Homosexual(ity) of Law

By Leslie J. Moran | Go to book overview

2

NOVELTY AS THE TRADITION OF LAW

Buggery as homosexual

A STATUTORY NEOLOGISM

‘Homosexual’ made its first, and to date only, 1 formal appearance in English law in the Sexual Offences Act 1967. 2 There it was put to use in a specific way. Section 1(1) declares that:

Notwithstanding any statutory or common law provisions, but subject to the provisions of the next following section, a homosexual act in private shall not be an offence provided that the parties consent thereto and have attained the age of twenty-one years. 3

Here it is used to name a new category of acts that are on the one hand in certain limited circumstances to be taken out of the calendar of criminal law and on the other hand are, in most instances, to remain criminal. In s. 1(7) the statute then goes on to explain the meaning of the ‘homosexual act’ in the following terms:

For the purposes of this section a man shall be treated as doing a homosexual act if, and only if, he commits buggery with another man or commits an act of gross indecency with another man or is a party to the commission by a man of such an act.

These two instances record the official birth of the ‘homosexual’ in law. This chapter is concerned with undertaking an analysis of one particular aspect of this appearance, the juxtaposition between the new term ‘homosexual’ and the archaic terms ‘buggery’, 4 and ‘gross indecency’. 5

It is a connection that has interesting characteristics. In joining the new term ‘homosexual acts’ to the archaic terms ‘buggery’ and ‘gross indecency’, the new statutory definition draws attention to the fact that the introduction of the new term ‘homosexual act’ does not mark the beginning of the law’s interest in genitally defined relations between men. ‘Buggery’ in particular has a long and noble history as a term through which genital relations between men have been represented in law. For example, there is evidence of ‘buggery’ (or ‘sodomy’) 6 being a term of law that included genital relations between persons of the same (mainly male) sex in England and Wales from the time of Henry de Bracton, who

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The Homosexual(ity) of Law
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Preface vii
  • 1 - Introduction 1
  • Part I - The Lexicon of the Law 19
  • 2 - Novelty as the Tradition of Law 21
  • 3 - Buggery 33
  • 4 - Making the Sense of Buggery 66
  • Part II - The Homosexual(ity) of Law 89
  • 5 - The Enigma of ‘homosexual Offences’ 91
  • 6 - Policing and the Production of the Homosexual(ity) of Law 118
  • 7 - The Somatic Techniques of Policing 134
  • 8 - The Uses of Homosexuality 169
  • 9 - Conclusions 197
  • Appendix of Cases 203
  • Notes 204
  • Bibliography 234
  • Index 244
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