More than a decade after launching a scheme to disregard and pardon convictions for historic “gay sex” offences, the government has now announced the scheme will apply to women. But a look at the history of lesbians and bisexual women convicted for same-sex activity shows that this will do very little to right historic wrongs.
When the scheme was created in 2012, it was limited to cautions and convictions for buggery (anal intercourse) or gross indecency between men. Neither offence applied to sex between women. Anyone convicted of other offences on the basis of same-sex activity could not obtain a pardon or disregard. A disregard means that the offence is deleted from official records and is not disclosed during criminal record checks. Since 2017, a pardon has automatically been granted at the same time.
The new scheme includes any offence which has been abolished or repealed, where the “criminal” conduct was same-sex sexual activity. However, it does not do much to help women, because sex between women has never been a specific offence. (The exception is armed forces veterans convicted under military laws, which were interpreted as prohibiting homosexual acts.)
Instead, prosecutors were inventive in their use of non-sexual offences, many of which remain in force today. I’ve detailed many of these cases in my book on lesbianism and criminal law.
Before same-sex marriage became legally recognised in 2013, some couples’ attempts to marry ended in court. They were charged with perjury, for making false statements to obtain a marriage certificate. A couple who attempted to marry in 1954 were convicted of this offence. The bridegroom was in fact a trans man, but the magistrates’ court considered the couple as lesbians and condemned their “unnatural passions”. Since perjury is still an offence today, they would not be entitled to a pardon.
Less serious offences were rarely reported in the press, so there have probably been many more cases than we are aware of. In particular, minor displays of public same-sex affection have come before the courts as breaches of public order.
Breach of the peace has been used for centuries and as recently as 1980, a lesbian couple who kissed goodbye at a railway station were detained by police. They were later released without charge, but if they had been prosecuted, they would not be entitled to a pardon.
Breach of the peace has not been abolished, and is technically not a conviction since a person is not punished, but is “bound over to be of good behaviour” – meaning they agree to behave for a set period, and will be punished if they do not.
An alternative is conviction under public order offences, whose broad definitions have been used to criminalise same-sex affection. In 1986, two men were convicted of “nuisances in thoroughfares” under the Metropolitan Police Act 1839 after kissing at a bus stop. This has been partially repealed, but similar offences under the Public Order Act 1986 are still in force so pardons would not be available.
One sexual offence which was used to convict women has been repealed: indecent assault. The Sexual Offences Act 2003 replaced it with sexual assault offences. However, a woman would only be convicted of “indecent assault of a female” if the other person was under 16 or did not consent. Rightly, such behaviour remains criminal today.
This exclusion of women is not just an unfortunate oversight. It is part of a long history of silencing the possibility of sex between women as a way of repressing it. In other words, legislators did not just forget to make it a crime or decide to tolerate it. They were vehemently opposed to it, but feared that if women heard about it then their own wives and daughters might try it.
For example, in a 1921 debate on criminalising “gross indecency between females”, Lieutenant Colonel Moore Brabazon MP insisted that rather than execute or imprison lesbians (both “very satisfactory”), it was better “to leave them entirely alone, not notice them, not advertise them. That is the method that has been adopted in England for many hundred years.” Parliament has arguably continued “not noticing” women in the newly expanded disregard and pardon scheme.
A flawed scheme
The lack of consideration of women’s legal position is not the only problem with this scheme. Despite thousands of eligible convictions, there have been only 208 successful applications by men.
The strict eligibility criteria poses many barriers for applicants, and as a result, two out of three applications have been rejected. To benefit from the scheme, applicants must provide documents and share details of often traumatic events. A caseworker then considers the case records and makes a decision.
But establishing the circumstances of a conviction can be difficult decades after the original events. Records may be missing or incomplete. They might omit details confirming that the activity would not be criminal today (for example, whether the other party was over 16 and consented). As the guidance to caseworkers makes clear, applications can be rejected because of that missing information.
Access to a disregard and pardon is important in practice since criminal convictions can blight people’s lives. It is important in principle because it acknowledges the injustice of convictions based upon legal discrimination.
However, the scheme does not adequately meet these needs – and for women in particular, the recent reforms will not change that.