The Present State of English Law

The Present State of English Law (Circa 1970)

Sex In History

by Gordon Rattray Taylor

ENGLISH law, as it applies to sexual matters, reveals several inconsistencies and betrays many prejudices, the origin of many of which can be found in canon law. The following notes may serve to convey a general impression of the position, chiefly as it is expressed in statute law. But statute law is modified by case law, and a summary sufficiently accurate to satisfy a lawyer would call for a much longer treatment. (Scottish law, which differs in several respects, will not be discussed here. In the U.S. the law varies widely from one state to another.)

THE SEXUAL ACT: English law does not specifically prohibit the performance of the sexual act between two consenting adults, of opposite sexes but not married to one another, whether performed for gain or not. Yet the mediaeval belief that the sexual act is sinful in itself colours the law at many points. For instance, proceedings may be instituted against the keeper or landlord of a house, whether it be an hotel or a private house or flat, in which two or more pairs of unmarried persons have sexual relations, and this is so even when the house is the permanent place of residence of one or more of the parties. This has the odd effect of making it an offence to connive in the performance of an act which itself is legal.

The intention here, no doubt, is to prevent a situation arising which might be a cause of public scandal; and it is probably for the same reason that performance of the sexual act in a public place is normally regarded as illegal. And in general, the law is more concerned with public opinion than with matters of ethics.

For the Protection of individuals, the law prohibits rape, abduction, and the seduction of girls under sixteen, and of imbeciles, and provides that if a man seduces a married woman by the device of impersonating her husband, he shall be considered guilty of rape, for which the prescribed penalty is life imprisonment. On the other hand, it does not recognize rape as between a man and his wife, presumably because they are "one flesh". It prohibits anal intercourse between persons of opposite (as well as those of the same) sex; also bestiality — as in mediaeval times, the animal is sometimes ordered to be destroyed also.

MARRIAGE: The law provides for both civil and church marriages, but requires publication of banns only in the latter case: the object for which banns were instituted has, of course, long vanished. There are special regulations for the marriage of certain dissident and non-Christian groups, such as Quakers and Jews.

The law prohibits as incestuous (i.e. unchaste) sexual relations, and, a fortiori, marriage, between certain near relatives, but the definition of which relationships are incestuous and which are not is quite chaotic, and certainly does not correspond, as is so often supposed, to a policy of preventing in-breeding. In principle, the law adopts the Table of Prohibited Degrees drawn up by the Church of England in 1563 — although the Church itself has since abandoned this list. This table is based on the proposition that a man and wife are "one flesh", and therefore excludes a man from marrying relatives of his wife; and it treats "step" relationships as full blood relationships. As it excludes several relationships where no question of a mixture of blood need arise the religious character of the prohibition is evident. (Nevertheless, it is applied to persons of other religious faiths.) To confuse the issue still further, recent legislation has modified the original list by permitting a man to marry various relatives of a deceased wife (and correspondingly for the woman), although a similar privilege is not allowed where the wife is not dead but divorced. By a decision of 1797, Jews may keep concubines.

The law prohibits polygamy; a purist might observe that it prohibits what it has already made impossible, since it rules that when a married person goes through a form of marriage with a third party, no valid marriage subsists. Since mediaeval jurists recognized a distinction between marriages which were illegal but valid, and those which were invalid, the point is not just a verbal one; as a result of this view the crime which a person so acting commits and is punished for, is not bigamy but profanation of the marriage service. Modern legislators, however, have forgotten this, inasmuch as they have extended the penalties for this offence to apply to a person who goes through a form of marriage in a registery-office, where there is no religious service to be profaned.

The concept of a marriage which is valid but not legal persists, however, in another sphere, for persons under the age of 21 (but over 16) are forbidden to marry without their parents' consent. If, nevertheless, they do so by making a false statement as to their ages, the marriage is valid — although the man is liable to as much as seven years' imprisonment. No person under sixteen may marry. The age-limit was raised (from 14 and 12) in 1929. Setting the age-limit above the age of biological maturity has the interesting result that if a boy makes a girl under sixteen pregnant, he cannot, with the best will in the world, legitimize the child. Nor can he be convicted for rape.

The law does not attempt to regulate the frequency of intercourse (but see below for unconsummated marriages) and repeats none of the canon laws governing the mechanics of the sexual act, except that concerning anal intercourse. Practices involving persisted physical cruelty would, of course, provide grounds for divorce — though the cruelty must be both Physical and Persistent.

ANNULMENT AND DIVORCE: Despite a number of recent modifications, the law remains chaotic where it touches annulment and divorce. In several respects, mediaeval notions are retained, often in a way which stultifies their original intention without bringing them into line with modern ethical conceptions.

The very distinction which is made between annulment and divorce defects the mediaeval concept that the sexual act is necessary to make a marriage. A marriage may be annulled for wilful refusal to consummate or for the inability of the male to consummate (impotence). It must not be supposed that the reason for this is to permit a healthy sexual relationship, for consummation need occur only once in married life, and, once performed, permanently changes the situation. It is quite clearly still a magical act — despite the dictum that consent alone makes marriage.

At the same time, the mediaeval view that the object of marriage is procreation, although often repeated by judges even now, is not in fact expressed in the law, since neither annulment nor divorce is granted on the grounds that either party is sterile, or where one party insists on using contraceptives or practising coitus interruptus against the will of the other. The decision that a marriage is to be regarded as consummated even where contraceptives are used, and against the will of one partner, dates from 1947, when the House of Lords ruled in this sense, reversing the law as previously understood.

On the other hand, the law does not consistently support the alternative view that one of the purposes of marriage is "the relief of concupiscence", since, although it concedes divorce for impotence, it provides no redress in cases where one partner consistently refuses intercourse to the other — though it has been ruled that a spouse may live apart from his or her partner in such a case without becoming liable for a suit for desertion, provided that he or she is always willing to return whenever the partner feels disposed to permit intercourse.

The law of divorce has moved a little in the direction of attempting to ensure that a marriage shall be a real and not just a nominal relationship, by permitting divorce where one partner is insane, or where one partner has been deserted by the other for at least three years immediately preceding the petition, and it also recognizes persistent physical cruelty as a cause for divorce. But it does not recognize as a cause any form of incompatibility, hatred or mental cruelty. It thus has some way to go before it reaches the position obtaining in the tenth century when various grounds, such as marked religious differences, barrenness and the capture of one party by the enemy were recognized by the Church as reasons for annulment.

Since today adultery is well established as a ground for divorce, it is worth pointing out that the principle was only established in 1923. Before that time, although a man could obtain divorce (and, earlier, annulment) for a wife's unfaithfulness, a wife had no corresponding right. A husband's adultery was a sin, entailing punishment, but did not affect the validity of the marriage. A wife's adultery was both a sin and an offence against the husband's property rights, and it was the latter fact which justified the divorce. A bill to make the breakdown of marriage the justification for divorce is still before Parliament.

HOMOSEXUALITY, etc.: In 1967, Parliament legalized homosexual acts between consenting adults in England and Wales but not in Scotland, ~ thus superseding the 1885 act which prohibited 'gross indecency' (i.e. mutual masturbation or oral practices) between males, even in private. The 1885 act prescribed severe penalties for anal intercourse, whether homosexual or otherwise. Thus heterosexual anal intercourse is still illegal. The attempt to control private behaviour echoes canon law, and the parallel with the mediaeval penitentials is enhanced by the fact that they treated oral practices as the most heinous of all sins. However, the penitentials also condemned this behaviour between persons of opposite sex, which modern law does not; so that, in forbidding an act which has no social consequences in one set of circumstances but not in another, the law is not even consistent in its mediaevalism.

Unlike canon law, however, the law does not recognize self-abuse and the sexual perversions.

PROSTITUTION: The sale of sexual favours, if legal in themselves, is not prohibited, but "soliciting", that is, advertising willingness to sell such favours, is prohibited on the ground that it is embarrassing to the person solicited. The penalties are negligible where heterosexual favours are concerned and heavy where homosexual favours are concerned. The law requiring the notification of contagious diseases was repealed in 1886, despite the favourable report of a Royal Commission, chiefly because it was held that the fear of disease would be a deterrent to those making use o prostitutes. Penalties are prescribed for keeping a house where prostitutes work, for living on the immoral earnings of women, ant (since 1887) for inducing a girl to become a prostitute.

OBSCENITY, etc: Action may be taken against any matter thought likely to corrupt, whether or not that was the intention of the author, under the Obscene Publications Act of 1857. Not only publication, but lending and showing of photographs, manuscripts, etc., have been held to constitute an offence within the meaning of the Act. The meaning of "corrupt" in this context remains undefined and the question of what sort of publications do in fact corrupt remains without a reliable answer; in each case the decision is left to the judgment of the court. It is not necessary to prove that corruption has actually occurred. The law is thus more severe than in the case of (civil) libel, where it is normally necessary to prove that damage has in fact been done.

SEX BIAS: It would seem to be the Victorian assumption that women are devoid of sexual desire which is responsible for the fact that several of these regulations, passed in the last century, apply only to men. Thus the law does not provide for the contingency, by no means impossible, that a woman should abduct a boy, or that she should seduce a male imbecile. The Criminal Law Amendment Am of 1885, insofar as it prohibits acts of "gross indecency", refers exclusively to males, while the Offences against the Person Act, though not specific, has in practice been invoked only against males. And a woman may obtain a divorce if her husband is an active homosexual, but a husband cannot do so when his wife is a Lesbian.

In conclusion it should perhaps be emphasized that if there are any defects in statute law, they are the responsibility of Parliament, which has failed to bring in amending legislation, rather than of the legal profession; where case law is concerned responsibility is more difficult to assign. It should also be added that in many cases offences are dealt with in courts of summary jurisdiction, where much depends on the individual magistrate and treatment may, in some cases, be more lenient than would be possible in the criminal courts. One of the ways in which a changing public opinion attempts to compensate for the neglect of Parliament is by refraining from committing offenders for trial.

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