New
Sodomy Law in England
England, 1828. "Buggery",
or anal intercourse, had been a capital crime in England since 1533, but Parliament
refined its laws in 1828 to make prosecutions easier. The Offenses Against the
Person act retained the traditional death penalty for buggery, but changed the standard of
proof required for conviction.
A Brief History of Buggery in England
Before the reign of Henry VIII, matters of buggery had been addressed in
church courts rather than by the King. Henry was determined to reduce the power of
the church wherever he could, so in 1533 he pressured Parliament into passing a host of
laws limiting ecclesiastical authority. One of these laws condemned "the
abominable vice of buggery committed with man or beast". The law made it clear that
clerics charged with buggery had to be tried by the state; they couldn't hide out by being
tried in church courts. Convicts were condemned to death and the forfeiture of all their
property to the Crown.
The language of the law seems straightforward enough, but its
interpretation changed over time. Buggery, by definition, refers to anal intercourse, but
during the trial of the Earl of Castlehaven in 1630, anal penetration was not proved, but
there was proof of "emission". Emission alone, concluded the judge, was
sufficient proof of buggery. The hapless Earl was beheaded shortly thereafter. The ruling
in the Castlehaven trial effectively made same sex contact of any kind illegal, even if it
did not involve the traditionally proscribed anal sex.
In the late 1700s the law was reinterpreted by the courts to mean that
same-sex activity was not criminal at all except when an ejaculation occurred during anal
penetration. This effectively decriminalized oral sex, mutual masturbation and
interfemoral intercourse (a sort of buggery lite in which the active partner places his
penis betwixt the thighs of his beloved). This was a high standard of proof and made for
some improbable questioning and testimony during buggery trials as prosecutors struggled
to get eyewitnesses to recount observations of an event that is intrinsically hard to see.
The standard of proof was inordinately high, and prosecutions were
difficult, though they did occur. Parliament remedied the vexing problem by changing the
standard of proof for buggery in the Offenses Against the Person act of 1828. The act
retained the capital sentence of Henry VIII's time, but no longer required proof of
emission, just penetration. Curiously, it did not criminalize any other forms of
unconventional sex.
Buggery convictions became easier for the prosecution to prove, although
no capital sentences were handed down after 1838. The death penalty stayed on the books
until 1861 when it was reduced to 10 years to life.
Sources and Further Reading
Hyde's book remains the definitive
treatment of the early history of buggery. Scarisbrick details Henry's anticlericalism.
Hyde, H. Montgomery, 1970. The Other Love. Heineman: London.
Scarisbrick, J. J., 1968. Henry VIII. Berkley:
University of California Press.
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© 1999
Andrew Wikholm
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