Typos — p. 143: Produrator-Fiscal [= Procurator-Fiscal]; p. 144: dependents [= dependants]; p. 145: malenes [= maleness]; p. 145: permissable [= permissible]; p. 146: asterisk missing in text; p. 146: ignomony [= ignominy]; p. 146: Journalof [= Journal of]; p. 147: indignattion [= indignation]; p. 148: reltives [= relatives]

Homosexuality, the law and public sentiment *

Anthony M. Ludovici

The International Journal of Sexology 5, 1951–52, pp. 143–148

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On July 19th, 1951, a prominent St. Andrews man, Rear-Admiral Francis Reginald Barry, R. N. (retd.) of 2 Gibson Place, St. Andrews, a member of the Town Council and Fife County Council, was sent to prison for 18 months at Cupar Sheriff Court, when he admitted twelve charges covering eight offences concerning boys between the ages of 13 and 15.
        The Produrator-Fiscal, Mr. A. S. M'Nicol, stating the circumstances of the case to Sheriff-Substitute Archibald Hamilton, said accused was one of the leaders of a Boys' Club of which four of the boys concerned were members, while the fifth boy was a close friend of one of the others. The boys, therefore, met accused through his activities at the Boys' Club. He gave lectures and talks to the boys; had occasionally taken some of them home in his car, and also for car rides, and whilst several of the offences had occurred at his home, others had occurred in the car. Every time he had taken the boys home his wife had been away, and his excuse for her absence had been that she did not like children. Eventually one or two of the boys spent the whole night at his house, and it was in this way that suspicion began to be aroused in the boys' parents.
        As, however, the Rear-Admiral was a man of such high position, and therefore excellent character, the mothers of some of the boys had not harboured any suspicion.
        Through his counsel, the accused asked to tender his apologies for what he had done, and guaranteed that "there was no chance of such a thing happening again." He was 63, a married man with a grown-up family of two, and his wife stood by him throughout, and said she would continue to do so no matter what the outcome of the proceedings might be.
        His counsel pleaded that, by his own act, the accused had thrown away "everything he had built up," that he would lose his rank and Naval pension (in excess of £1,000 a year), as well as his position in all official bodies with which he had been connected. He was not trying to shelter behind any medical or psychological excuses, but it was only fair to remind his lordship that at the accused's age it was known that physical changes did take place which might cause abnormal impulses which some people would find it difficult to control." It was the first offence accused had committed, "and the charges were not so bad as they could be."
        "But they are bad enough," interposed the Sheriff who, passing sentence, agreed with the Crown that accused had been in a position of trust; he has been pursuing activities ostensibly designed to uplift the boys concerned, and that instead he had committed a revolting series of offences. His lordship therefore felt he must pass a sentence which would adequately fit the crimes committed and protect the community.
        Now it was evidently in connexion with this trial that a series of letters appeared in The British Medical Journal, beginning on August 11th (p. 303) in which the pros and cons of the case were discussed, often with some warmth. Dr. G. W. Fleming, who opened the correspondence, argued that "while such offences cannot be condoned," he had always thought that the penalty for them was out of all proportion to the crime, and failed "to make any allowance for the fact that such crimes are due to a disorder of the body and mind alone." He claimed that the time was overdue for the medical profession "to give a lead in urging more humane consideration in cases of this kind."
        On September 1st (p. 549) the B.M.J. printed another letter, this time from Dr. H. Ward-Smith who, after advising Dr. Fleming to think again, and pointing out that had the accused in question "assaulted five girls of the same age," the penalty would have been far more severe, added: "The apologists for the homosexual pervert appear to assume that his sexual desire is so overpowering that he has no control over it whatsoever. That is quite wrong. . . . . . Any practitioner of experience has come across men. . . . . . who are naturally homosexual in their desires but, being persons of high character. keep the same control over themselves as do heterosexual persons" who are tempted. He

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added that he had to deal with some of the boys and their parents, "who have been victims' in such cases, and "the mental damage and distress is deep and lasting." In his experience he concluded, "few of the perverts take any steps to be cured, but let their desires become ruling passions," as does the ordinary voluptuary.
        On September 15th, the B.M.J. printed five further letters on the subject. Dr Humphrey Osmond supported Dr Fleming, Dr G. Orissa Taylor supported Dr. H. Ward-Smith, Drs. Harold Burrows and W. W. Horton, who inclined to Dr. Ward-Smith's view, suggested castration as the cure and adequate punishment of such delinquents; whilst Dr. G. W. Fleming, replying to Dr. Ward-Smith, concluded that the latter seemed to have overlooked the fact that the accused and his dependents had forfeited his £1000 per annum, which loss, he considered "out of all proportion to the crime", and added that he had only wished to plead for a "more humane and enlightened consideration of these offences."
        Dr. Humphrey Osmond, on the other hand, arguing that such offences committed by the hitherto well-behaved, were due to a "change of personality" occasioned by "organic disease of the brain, probably arteriosclerosis", implied that in any case. the degradation and financial loss were in themselves a sufficiently harsh punishment, and that "the place for an old man unable to control himself is in a hospital" and not a prison.
        Finally, Dr. Orissa Taylor. whilst deploring the fact that we were, according to him, becoming "more than condoning", whole-heartedly defended the sentence on the Rear-Admiral, and reminded his fellows in the profession that God Himself had destroyed Sodom for the very sin which "has given its name to this ugly perversion."
        Now, in examining both the report of the trial and the series of letters above mentioned, it seems of primary importance to keep cool and collected and as free as possible from, emotional bias. To judge from the average participator in a discussion of this kind, however, it would appear to be very difficult to maintain a calm and objective attitude. The history of homosexuality, in so far as the subject has come before the British public in the form of criminal prosecutions, has, ever since Oscar Wilde's trial in 1895, been charged with so much emotion and prejudice, that only rarely do we come across dispassionate attempts to deal with its legal aspects. It is too often assumed, as Dr. W. W. Horton assumes, for instance, that "hidden stores of brilliance" are frequently to be found in these perverts. (B. M. J. 15–9–1951). Truth to tell. it is very doubtful whether "stores of brilliance" are more often found in homosexuals than in heterosexuals. But such a statement as that made by Dr. Horton reveals the inextricable entanglement in the public mind of Oscar Wilde's case with all cases of homosexuality since brought to the general notice. Far be it from me to kick a lion when it is prostrate, but as I have long thought that Wilde's personality and literary achievements have been grossly overrated and that even his novel Dorian Gray, is inferior in quality to Hichens' Green Carnation, which started the hue and cry against him, I have perhaps less? difficulty in dissociating great brilliance from homosexual tendencies, than those who are still under the influence of his legendary genius. Nevertheless, it must be readily conceded that the spectacle of an author so famous and successful suddenly crashing to his doom, no matter how foolhardy and reckless he may have been, cannot fail to be stirring; and if there should be any suspicion of injustice in the sentence he was given, it is not unnatural that all subsequent trials of similar delinquents should be watched and criticized by posterity with unusual vigilance and severity.
        For these reasons, the general public has for the last sixty years been inclined to look on prosecutions for homosexuality differently and certainly more emotionally than on other prosecutions, and very many people cannot think of a charge against a homosexual without assuming that some injustice is being, or has been done. It is as if the constitutional conditions predisposing a male person to homosexual practices (for female homosexuals, although very common, are by English law not liable to prosecution) were popularly at least held always to be accompanied by mitigating factors — high mental gifts on the one hand and disease or impulses unamenable to control on the other.
        Now this is obvious nonsense, and when Dr. Ward-Smith pointed out that the apologists for the homosexual pervert assume that his sexual desire is too overpowering to be controlled, few would deny that the charge is deserved. Why, for instance, should Dr. Humphrey Osmond take it for granted that the case under notice concerned "an old man

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unable to control himself"? The assumption is all the more unwarranted seeing that in his plea for mercy the accused had assured the judge that "there was no chance of such a thing happening again" — a submission which implied not only that his volition would in future operate against any such indulgence in homosexual practices, but which also indirectly revealed that the crimes which brought him before the court had been committed by an act of will and that, therefore, there was in his case no pathological suspension of volition. But it is such instances of a priori reasoning as Dr. Humphrey Osmond supplies which support the contention here made, and maintained by Dr, Ward-Smith, that there is in the apologists of homosexual perverts a parti pris resting on the assumption that all homosexual impulses whatsoever are uncontrollable.
        If it could be proved beyond cavil that all homosexual impulses, including even those yielded to by animals, were due to pathological conditions which suspend judgment and volition, the apologist's claim would be established. But no such proof has been advanced. All we know is that in some cases, just as in some cases of murder, they probably are. Medical psychology allows us to go no further than to suppose that certain definite morphological features may be peculiar to the passive homosexual, and that certain other morphological features (perhaps less easily recognized, but still often noticed) may be peculiar to the active homosexual. But no claim has hitherto been advanced to the effect that in either type rational judgment and volition are, by the nature of their morphology, suspended. Dr. Humphrey Osmond's suggestion that, in cases of senile homosexuality, as in the one under notice, arteriosclerosis may be responsible for the abnormal behaviour, remains a matter of doubt. It may or may not be a fact. But as diseases of the brain may lead to any sort of extravagant diversion from normality, the point is really irrelevant.
        Nobody, certainly no Greek of the 5th century B.C., would have claimed that there was anything pathological in the brain of Epaminondas, "the greatest and purest of the Greeks in history", or in that of Aeschylus, Sophocles, Socrates, Plato, Parmenides, etc. Yet all these men, and many more equally respected and apparently regarded as sane by their contemporaries, were confirmed pederasts. Besides, would anyone who knew his subject, claim that men like Louis XIV's brother, or that Gide, or any other notorious and respected homosexual in history, was fundamentally pathological?
        Indeed, our evolutionary history alone points to the duality of our sexual proclivities. Each of us is more or less female in our masculinity and more or less male in our femininity. Thus there is a fundamental ambivalence in our sexual orientation, and. according to our psychological make-up, it takes very little or a great deal to tip the balance in us towards the tastes and instincts of the sex to which, judging outwardly, we do not belong. The findings of psycho-analysis confirm this. That the gamut of variations in the maleness of men and in the femaleness of women is very large, and theoretically may extend to any proportion of malenes or femaleness from 50 per cent plus up to 100 per cent, respectively, was a fact noticed by Schopenhauer long before it was popularized by Hirschfeld and Weininger, and is now a commonplace of sexology. It is, therefore, no longer permissable to regard every manifestation of a homosexual bent as necessarily pathological, just as it is no longer accurate to associate it with "hidden stores of brilliance." We are all more or less homosexual, just as we are all more or less heterosexual. It is only a question of how much. But no one has so far alleged or proved that at any particular position in the scale 50 per cent plus to 100 per cent of maleness or femaleness pathological conditions leading to homosexuality are to be assumed. And since. without pathological conditions, judgment and volition may be Raid to remain unimpaired, the constant association even by medical men of a loss of control with homosexual practices is wholly gratuitous. Given a wise education, in which self discipline and firmness of character are reared as the essential equipment of every member of society, and it may reasonably be expected that all, or certainly a very large majority of the population, no matter where they happen to be located in the scale of 50 per cent plus to 100 per cent of their particular sexuality, will behave in a social manner and not yield to the temptation of either homosexual or irregular heterosexual practices.
        We must, it seems, therefore, be satisfied that at present all we can safely claim is that, as Dr. Ward-Smith points out, some people are predisposed to homosexual, just as others are predisposed to heterosexual practices; and although we may perhaps question the wisdom of laws that regard all homosexual practices as criminal, even those taking

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place between full grown, responsible and consenting adults, and where no harm to society is incurred and no offence given to public decency, we can no more reasonably cavil at laws that protect minors, and punish with the utmost rigour adult persons, whether homosexual or heterosexual, who are guilty of what the French call detournement de mineurs, than we can reasonably cavil at the laws which punish cruelty to minors, or which penalize the trafficker in so-called "white slaves".
        Nor is this attitude towards the legal aspects of homosexuality as outlandish and novel as might appear; for, according to Dr. Norman Haire, in France and other countries "whose laws are based on the Napoleonic Code", no criminal charge for homosexual acts can be instituted "unless they involve the seduction of minors, or are carried out in circumstances which offend public decency."
        One further question relating to criminal prosecutions remains to be discussed, and it concerns cases in which the punishment is thought to derive heavy contributions from the fact that a high social position, together with its emoluments and other privileges, has been sacrificed by the delinquent. When, both in this country and elsewhere in Europe, people of high standing are through some crime hurled down from their position and suffer loss of status, prestige and often incomes as well, there is too often a general feeling, shared unfortunately by the magistrates, judges and juries before whom they appear, to the effect that, even if they have not already suffered enough, at least a substantial portion of their crime has been expiated by the mere fact of their appearance in the dock. their financial loss and the ignomony to which their conduct has reduced them.
        That this feeling is particularly strong in cases of the kind under notice lends relevancy to a discussion of its actual validity. At all events, the emotion that appears to prevail in producing this feeling is surely undeniably vulgar. To suppose that in falls from great heights the actual fall per se constitutes a considerable part of the punishment, is wholly to overlook the important relationship of social prestige and its privileges with the obligations they presuppose. It is tantamount to endorsing the view that crime, where there has been no equivalent social disgrace should receive a more severe sentence than crime accompanied by social disgrace, which would seem to involve the principle that "lower class" criminals are always more reprehensible than criminals of high standing.
        But this is to forget that a light-house that goes out is likely to lead to much greater damage than a pedal cyclist who rides after dark without a light; and that a bishop who commits — say, incest, plays much more havoc with the dignity, reputation and credit of the Church than does a slum-dweller, living in overcrowded conditions, guilty of the same crime.
        A high functionary, or any member of a leading class, who by a criminal act shows himself unworthy of his lofty rank, not only sets a bad example, not only reduces the prestige of his order and brings his status into contempt, but also prejudices the moral values of his society in a manner much more serious than does the inferior delinquent; and by his very conspicuousness casts a deplorable slur on the advantages which raised him above the common level. Incidentally, too, his act may convey to the common man the idea that fundamentally the difference between leading and following classes is really only one of possessing the means whereby leadership can be secured, and not of possessing any quality of character or psycho-physical equipment which makes for leadership. Thus the whole of the foundations of a qualitatively stratified society are undermined, and respect for quality becomes a mere formality or, what is worse, a mere reaction to quantity in the form of possessions.
        Thus the delinquent from the higher ranks of society is guilty of more than the crime for which he has been apprehended; for, in addition to that crime, he has also branded himself as a traitor. He has committed treachery against leadership as a social institution, against his society's moral values, against his class, his calling and his family. He has, in fact, like

        * (Journalof sex Education, Dec. 1950 and Jan. 1951, p. 899)

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any other political traitor, contributed his mite to the forces always threatening to destroy his country's stability.
        Now in the greater civilizations of antiquity, this principle was well understood, and was generally so far accepted as to make all laws and the judges or magistrates administering them, much more severe towards influential, exalted, wealthy, educated and socially prominent delinquents than towards criminals from the lower strata of society. This is, and always must be. the attitude of any people with a fine taste in civilized values. It was so in ancient Egypt, and it was so much later in mediaeval Venice.
        An excellent example of the principle in practice may be found in the Babylonian civilization, the laws and general customs of which were based on Sumerian precedents. And the example is all the more apt in the present article, seeing that a modern educated Englishman, in commenting on it, spills the beans concerning that fundamental vulgarity of the Western attitude towards superior delinquents, to which I am here calling attention.
        Briefly stated, there were three principal classes in ancient Babylon which, roughly speaking, may be designated as the nobility, the middle-classes, and the slaves. A member of the first class, the amelu, may have enjoyed greater privileges than the mushkinu, or bourgeois; but, let both be guilty of tin; self-same crime, and the former was made to expiate it with much greater severity than his social inferior. No lachrymose commiseration of the superior delinquent, either from the bench or from the public; no displays of vulgar sentiment, such as too frequently disgrace our English courts, compromised the judge's fitness to adjudicate in such cases. Nor did the delinquent himself hope to reduce his punishment by laying stress upon his fall from greatness. Whereas the mushkinu might get off with a fine, the amelu suffered a punishment which is described as much more "ferocious". He was always dealt with on the basis of an eye for an eye, a tooth for a tooth.
        Now, in a manner most self-revelatory, but which eloquently illustrates the unenlightened, not to say vulgar, point of view of most European and certainly most English people, Mr. Campbell Thompson, after relating the above facts, remarks: "It is curious to see that the punishments were more severe on the amelu, 'patrician,' than on the mushkinu." (Cambridge Ancient History, Vol. I. Ch. XIV, iii).
        But why "curious"? Are we all as ignorant of what truly civilised and above all noble values should exact as are our magistrates, High Court judges, and the barristers who plead before them? Must we all, when confronted by an alleged "aristocrat", or prominent social figure in the dock, choke with tears and let him off lightly, because of the punishment his disgrace has already brought upon him?
        Surely our only comment on the wise and profoundly civilised practice of the Babylonians should on the contrary be, "How very natural" But in this one remark of Mr. Campbell Thompson, with which Dr. Humphrey Osmond (quoted above) and hundreds of thousands of other people would most probably agree, the whole of twenty centuries of European and especially English error and deficiency in noble standards, is singularly well epitomized.
        For, in a well-ordered civilization, both the members of his own class and calling, as well as the public at large, ought actually to show more indignattion towards a delinquent from the superior ranks of the community than upon his counterpart in the classes below; and it is not unlikely that the failure to do so — nay, the tendency passionately to feel the opposite emotion and to commiserate and already half forgive him, may be among the more important signs of the basic unsoundness of many of the principles upon which Western Civilization is built.
        At all events, in homosexual crimes, this attitude seems to be peculiarly common. It may even be said to have become the rule, and it constitutes a conspicuous piece of evidence pointing to the widespread absence of good taste and civilized feeling.
        Of a further series of letters on the same subject, published by the B.M.J. on Sept. 29th, one only need concern us here — that from Dr. J. B. Wrathall Rowe. In it he emphasized the magnitude of the financial punishment administered, and raised the fresh point of its effect on the admiral's family. "If", he wrote, "he [delinquent] is married and has a family, his wife and children have also been punished for his offence, which is unjust." — Unjust?
        There are at least four major objections to this plea. First of all, it involves the wrong principle that the dependents of criminals should be protected by the State against the social consequences of

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the crimes of those on whom they depend. Logically, this would lead to the necessity of compensating all families but especially families of the poor, suffering loss through the crimes of those who support them or from whom they may reasonably expect bequests; and this would be so whether the relatives in question were merely imprisoned, or were hanged. Secondly, the plea overlooks the fact that it is precisely the danger of causing disgrace or loss, or both, to one's family, that acts as one of the most potent deterrents against crime. Thirdly, the plea would strike a severe blow at family loyalty and solidarity; for it is agreeable that the traditional custom of sharing the fate of very near relatives, is one of the mainsprings of family unity. "For better for worse; for richer or poorer," the Book of Common Prayer wisely has it, and any departure from this principle would not only undermine family unity, but would also, in cases of crime, introduce a note of indifference and levity, which it is certain that Dr. Rowe himself would deplore. Fourthly, as the civilized world works at present, the moral pressure brought to bear by near reltives on every member of their family so as to avoid at least the disgrace and loss incurred by criminal behaviour, must be held to contribute very substantially to the moral stability of society. Accept Dr. Rowe's plea, however, and this important influence would be jeopardized to the extent to which fear of financial disaster now contributes to it.
        As usual in these matters of crime and punishment, the concentration on particular cases is a precarious method of achieving justice, and as a rule leads only to the worst of all conclusions — the bad laws that result from considering only hard cases.