“A Great science fiction detective story”

– Ian Watson, author of The Universal Machine

Days to Centenary: 112

Mancunian Matters reports that there are 16,000 men alive today who were convicted of Gross Indecency, the same offence to which Alan Turing plead guilty to in the 1950s for having had consensual sex with an male adult. (According to MP John Leech the total number alive and dead is over 75,000.)

Maybe this is a good time to examine exactly what Gross Indecency was. It sounds so terrible one tends to assume that those 16,000 men must have done something bad.

The offence of Gross Indecency is defined in Section 11 of the now defunct Criminal Law Amendment Act 1885 in the following terms:

Any male person who, in public or private, commits, or is a party to the commission of, or procures, or attempts to procure the commission by any male person of, any act of gross indecency shall be guilty of a misdemeanour, and being convicted shall be liable at the discretion of the Court to be imprisoned for any term not exceeding two years, with or without hard labour

There are three main things to notice about this section.

It doesn’t define what constitutes the indecent act itself. This made it relatively easy to obtain a conviction against gay men where sodomy, which was criminalized under a different law, could not be proved. The police could lay a charge based on their own views of what might constitute “indecency” and courts could convict in the same way. It is aimed solely at homosexual acts between men. It is clearly and specifically drafted to control and repress homosexual acts — nothing more or less. It has no requirement of anything resembling a sexual crime today. There is no requirement that the act be imposed on someone without their consent. There is no requirement that the person upon whom the act is performed be under the age of consent. The most gentle, loving, consensual sexual act between adult men was a crime under this law.

It was because of this kind of harmless gay sex that a war hero and scientific pioneer was persecuted, chemically castrated, and driven to suicide. And it was for behaviour just as harmless that 16,000 men still bear the burden of a criminal record.

It seems to me that the least the government can do, given that as a legal entity it bears historical responsibility for having passed the former law, is to relieve these men of those convictions by means of a pardon.

(There is a law in the works that would allow these men to apply to have their convictions “disregarded.” I have written before about the ways in which this law falls far short of what is needed. For the sake of convenience, I’ve reproduced some of that analysis at the end of this post. The fact is that what Turing deserves, and what all of these men deserve, is a pardon, nothing less.)

There is a policy — not a law, but a mere policy — against issuing pardons where the person was convicted according to the law as it stood at the time of their conviction.

The policy is wrong.

In other countries (for instance in Canada and the United States) pardons are regularly issued where a person was properly convicted but has been rehabilitated or — as here — where the law itself was wrong. No terrible chaos has erupted as a result.

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Addendum: The Protection of Freedoms Bill

Before reproducing what I wrote previously, let me congratulate Member of Parliament John Leech, who is continuing to pursue a pardon for Turing .

He is also trying to help get, as he calls it in the same Mancunian Matters article cited above, “the equivalent of a pardon” for all the other men who suffered Turing’s fate. He appears to be referring to relief under the Protection of Freedoms Bill, which he is attempting to broaden so that the surviving family members of men convicted under the law could apply to have their convictions “disregarded” where the convicted man himself is now dead.

I have criticized the absence of this type of provision in the proposed law several times, and indeed wrote to Mr. Leech in this regard as I’m sure others may have done. While I think that the changes he is proposing would be beneficial to the families of convicted men who are now passed away, and as such shouldn’t be trivialized, I still have to say that this is not the right approach.

The argument for Turing to be pardoned shouldn’t be predicated on his being a national hero and a genius, as if heros and geniuses should somehow be above the law or entitled to remedies that ordinary men aren’t.

Turing should be pardoned because the law was profoundly wrong and we have matured enough to recognize that fact and to try to correct an injustice. Those thousands of other men were just as innocent, and are just as deserving of a parson as Tuing is.

Here is what I wrote previously:

I didn’t want to extend an already very long post with a legal issue that I don’t think is critical to the issue at hand, but just in case anyone tries to tell you, hey, don’t worry about the whole pardon thing, there’s a Protection of Freedoms Bill on the way that will take care of everything, here is why you shouldn’t believe them.

As some of you may know there is a new legal measure on the way that could persons who were convicted of “gross indecency” for gay sex some relief — the possibility of having a conviction “disregarded” — but crucially would not give them a pardon.

It would also put the burden of getting that relief on the convicted person themselves, who would have to apply, rather than putting that burden where it belongs: on the government which created the bad law in the first place and now should be correcting its past mistakes.

Most importantly, putting the burden on the person seeking relief would, I suspect, reduce the number of people involved and correspondingly reduce the cost to government of dealing with the problem. A cheaper solution, to government, is almost inevitably a better solution, but that does not make it the right solution.

The law has other inadequacies as well. Here is what I wrote previously about it:

Finally, there is the Protection of Freedoms bill that will go to the House of Lords on December 13, 2011 — three days hence as I write this. While this bill is laudable in many respects, on the particular issue in question I think it is distinctly wanting and should not be allowed to become an excuse to forego the granting of a pardon to Turing or anyone else. Even the official summary of the bill makes it clear that one’s conviction is not automatically disregarded, as should be the case where a legal authority like Parliament wishes to recognize that a past law was unjust and the people convicted under it ought not to have been convicted at all. One must apply to have one’s conviction disregarded. The summary states that the law: “…enables those with convictions for consensual sexual relations between men aged 16 or over (which have since been decriminalised) to apply to have them disregarded.” I don’t want to be naive and condemn the bill without knowing the sort of debate that went into creating a scheme that requires an application from the convicted person — there could be a good reason for it — but I don’t want to be naive in the other direction either. It is my experience that where governments can do so, they will more easily take a principles position if they can simultaneously minimize some of the work created by that position by creating winnowing techniques like requiring an application. If there are, just for the sake of example, 5,000 men alive today who still have such a conviction on their records (I have no idea of the real numbers), and if only 2,500 apply to have their particular conviction disregarded (because the rest don’t hear about the change in the law, for instance, or feel intimidated by doing it themselves and can’t afford to retain counsel) then that represents a substantial savings in time and effort on the part of the government. What itdoes not represent is an effective application of the government’s purportedly principled position. Furthermore — and very, very importantly — a reading of the actual text of the bill shows that the bill requires the person who was convicted to apply on their own behalf. I presume they can do this through a lawyer, but my point is that no one can do it for them if they’ve already died. And there must be many, many of these. To someone who’s not directly affected by a conviction of this kind, this might seem like a small point. After all, what practical good is it to have your conviction disregarded if you’re dead? Well as far as I know, none (although there might be effects of which I’m not aware) but for the surviving family members of the convicted person there would be immense relief to be had in clearing the name of their departed father or grandfather or uncle or whoever was convicted, and it is no small point that such relief is not available under this bill. Convictions like this become family secrets that weigh heavily on a person’s friends and family. Or, if they do not remain secret, can become grounds for persecution and maliciousness. All of these effects persevere after the convicted person has died — the bully down the street doesn’t stop taunting a child about his “perverted sicko grandad” on the day the grandad dies. If the government genuinely wishes to set right its past mistakes, the principled course is to accept the burden of doing it completely, not in half measures, and that means not requiring an application and it also means applying the change to the records of the dead as well as the living.