In January 2022, the government announced a commitment to broadening the eligibility of those who can apply for pardons relating to "same-sex" crimes by amending the Police, Crime, Sentencing, and Courts bill. This will allow men convicted under solicitation and importuning charges to have their criminal records wiped and an official pardon issued. In this article, we will explain what the change to the eligibility of pardons means, who this affects and whether it really is a step forward for progress and equality.
What were "same-sex crimes", and how did they affect gay men?
"Same-sex" crimes were classified alongside / given the same classification as crimes such as sexual assault and rape. They were used to target and harass gay men both in public spaces and in their homes. Many of these crimes did not need evidence, leading to thousands of unfair convictions. Most sentences handed out were named as:
Buggery/Sodomy: anal sex between two men.
Gross indecency: a term used to criminalise any "homosexual acts", usually because the act of "buggery/sodomy" (anal sex) could not be proven.
Solicitation: an offer of sex for money, usually in a public place.
Importuning: approaching someone to request or offer sexual services.
Until 1967, buggery/sodomy was illegal, meaning any men caught performing same-sex sexual activity would be imprisoned. In 1967, this was changed so that sex between men over the age of 21 and "in private" was legal. However, the legal definition of "in private" was strict. Houses had to have their doors and windows locked and curtains drawn. It was also considered "public" if anyone else was found to be in the house. This made it far easier for police to legally raid private residences and arrest men engaging in consensual sex.
Gross indecency was still legally punishable until 2003, 36 years later, and its definition throughout that time was extremely vague; just two men holding hands would even be classed as gross indecency.
Historically, the social and legal definitions of solicitation and importuning have been used interchangeably in many scenarios as a way to harass gay men. Section 32 of the Sexual Offences Act 1956 states, "it is an offence for a man persistently to solicit or importune in a public place for immoral purposes." This law failed to differentiate between solicitation and importuning, the main difference being that solicitation involves the exchange of money for sexual acts, which was, and still is, illegal.
"the social and legal definitions of solicitation and importuning have been used historically as a way to harass gay men"
Section 32 was initially created to increase protection for female prostitutes; however, its statement of "immoral purposes" was vague enough that it could be used to include sex or sexual acts between men. A simple smile or flirtatious word could be classed as an "immoral purpose" and be a justification for arrest. Courts and police were notoriously prejudiced, meaning many gay men found an importuning offence attached to their name despite being innocent.
Section 32 was used for sex offenders, rapists, and those who pursue minors for sexual acts. Gay men who had been given this sentence were, and still are, unfairly associated with dangerous criminals.
In 2004, there was a revision to Section 23 under the Sexual Offences Act 2003, changing the law to: "it is an offence for a person in a street or public place to solicit another (B) for the purpose of obtaining B's sexual services as a prostitute." This now clearly separated importuning and solicitation, whereby the former was decriminalised.
Terry Stuart was arrested in 1981 for importuning under Section 32 of the Sexual Offences Act 1956, and handed a £20 fine (worth about £70 in 2022) as well as the conviction. He said, '[the police] said I had approached several men in the toilets and told them I wanted to have sex. There was nobody there.' This false conviction meant he had a criminal record, so he could not pursue a job as a social worker.
Previous pardons: the ‘Protection of Freedoms Act' (2012) and the 'Turing Law' (2016)
In October 2012, the UK government announced the ‘Protection of Freedoms Act', which focused on the legal voiding of gay men's convictions. It allowed gay men convicted of the same-sex crimes gross indecency and sodomy/buggery, to apply to have their police and criminal records disregarded.
This was followed up in 2016 when the UK passed the 'Turing Law', which focused on the official pardoning of gay men. This law automatically pardoned all deceased men who had been convicted of gross indecency and sodomy/buggery and allowed living men to apply for the pardon. This could be done in conjunction with their application to have their criminal record wiped. The law, named after the World War Two codebreaker Alan Turing, was created three years after Turing was posthumously pardoned of his 1952 gross indecency charge.
Despite resounding support for the Turing Law, the real-life effects have yet to prove fruitful. It was estimated that around 15,000 men would be eligible to apply for the pardon. Yet, in 2019, only 189 of the applications submitted had been approved.
There are also many gay men who were against the idea of the pardons, citing that asking for a pardon implies that you have done something wrong in the first place. George Montague was one such man who asked instead that the government issue an official apology so that no responsibility for their conviction was placed on the individual. He said , '… if you accept the pardon, it means you accept that you were guilty.'
What is the extended pardon, and how does it differ from the previous pardons?
The overriding issue of the 2012 Protection of Freedoms Act and the 2016 Turing Law was that men could only apply for a pardon on charges relating to crimes now considered defunct, which are sodomy/buggery and gross indecency. These crimes are listed in these government guidelines.
However, any man convicted under Section 23 was not eligible for this, as their conviction included solicitation, which is still illegal. This highlighted the need for an extended pardon.
The 2022 extended pardon has been added to the 2012 Protection of Freedoms Act and Turing Law. This will allow a man convicted of same-sex crimes under solicitation and importuning to have their criminal record disregarded. However, conditions remain that the conviction must not constitute activity that is still illegal today or with anyone under the age of 16.
What real-world effects will the extended pardon have?
While some individuals may not support the implications of a pardon, many men are revelling in the freedom of a conviction-free life. Unfortunately, for many of them, the official pardons come too late to undo the damage to their lives caused by the convictions.
Alan Turing's two options of punishment for his conviction were imprisonment or chemical castration. Turing chose the latter, but the severe mental strain his conviction and punishment caused resulted in his premature death from cyanide ingestion at just 42.
Richard (not his real name) was arrested and issued a caution for importuning in the mid-1990s. In 2017, he was forced to stop working for a year when a change of job shed revealed his charge. He said, 'It broke me.' Richard eventually had his record expunged, but the process of erasing, or applying for the pardon, is too confusing and painful for many.
An extended pardon goes a long way to right a prejudiced UK government's past wrongs and hopefully signals a more tolerant future for LGBTQ+ people. Past injustices cannot be ignored. As the government moves forward with their claims to support LGBTQ+ citizens unreservedly, it is comforting to see those affected by prejudice finally get the closure they deserve.
Edited by Christophe Locatelli