Criminal Law Amendment Act 1885

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The Criminal Law Amendment Act 1885, "An Act to make further provision for the Protection of Women and Girls, the suppression of brothels, and other purposes", was the latest in a twenty-five year series of legislation in the United Kingdom beginning with the Offences Against The Person Act 1861 that raised the age of consent and delineated the penalties for sexual offences against women and minors. It also strengthened existing legislation against prostitution and recriminalized male homosexuality. This act was also notable for the circumstances of its passage in Parliament.

1 Background
2 The Bill languishes
3 The Armstrong Case
4 The debate resumes
- 4.1 Section 11
5 Passage and effects
6 External links

[edit] Background

In 1861 Parliament had passed the Offences Against the Person Act, confirming the age of consent to be twelve, making it a felony to have consensual sex with a girl under ten, and a misedemanour with a girl between ten and twelve. In addition, the 1861 Act had made the penalty for indecent assault or attempted rape of a girl below the consensual age two years imprisonment. Although the age of consent was subsequently raised to thirteen upon amendments made to the 1861 act in 1875, these pieces of legislation were enacted to mainly protect the very young and the very wealthy. The reason for the latter was that the lawmakers at that time were concerned about the welfare of heiresses, meaning their daughters and by extension, that of their friends and patrons; this is why they imposed the most severe penalties on those who would seduce or abduct women without their parents' consent even though the perpetrator intended to marry his quarry. Girls over the age of thirteen and the poor had little protection under this law.

This double standard extended to prostitution. While it was tolerated in the middle-class, concern about the spread of venereal disease, specifically syphilis persuaded Parliament to pass a series Contagious Diseases Acts in an effort to contain the disease. The law permitted the police to arrest suspected prostitutes to be submitted for examination for venereal disease. Its unintended consequence was that any woman would be subject to this just because they looked like prostitutes. Men, however, were not subjected even though they were equally responsible for spreading the disease. These acts were later repealed due to public pressure over the double-standard nature of these laws.

Public opinion at the time was thus in favour of less lenient legislation and harsher penalties for sexual offenders, and better treatment for women and children. Social Purity groups like the Society for the Suppression of Vice and Feminists led by Josephine Butler focused on the evils of child prostitution as the chief factor in the sexual exploitation of the young. In addition, during the 1860s and 1870s child advocacy groups were concerned with child abuse and other forms of maltreatment. Furthermore, groups like the Society for the Prevention of Cruelty to Children (SPCC) were concerned about the limitation of the testimony of young children. They investigated, reported and brought to court accusations of child abuse and neglect. It was in this socio-political climate that legislation to change this was introduced in 1881.

[edit] The Bill languishes

The Bill for the amendant of the law took four years to bring to completion. It began when Benjamin Scott, the anti-vice campaigner and Chamberlain of the City of London, approached Lord Granville to enact legislation for the protection of young girls from transportation to the Continent for "immoral purposes". In response, the House of Lords formed a Select Committee to investigate and confirmed an increase in child prostitution and white slavery. The Committee's report made nine recommendations which became the basis for the Criminal Law Amendment Bill, including raising the age of consent to sixteen years as well as increased penalties for sexual offenses.

The Bill passed easily in the House of Lords in 1883, but was dropped in the House of Commons. It was reintroduced in 1884 but was again dropped during the struggle over Parliamentary reform. In April 1885, the Earl of Dalhousie tempted fate by reintroducing the Bill a third time. While the Bill passed smoothly through the Lords in May - albeit with some revisions, most notably lowering the age of consent to fifteen - it again faced an uphill battle in the Commons, who were preparing to disband for the Whit Week bank holiday on May 22 and thus rather indifferent to the Bill. In addition, many Members of Parliament were opposed to the measure (with some justification) citing the curtailment of civil liberties through its increase of police powers.

Despite the effort of the Home Secretary, Sir William Harcourt, to move for a second reading of the Bill, no vote was taken on the measure by the time Parliament was adjourned on May 22. Supporters of Bill by that time feared that the Bill would again be put aside and decided to take drastic action.

These fears apparently became real when Gladstone's government resigned over the budget. A minority caretaker government was formed under Lord Salisbury pending the holding of the general election later that year. As a result, it was deemed that no time-consuming or controversial measure be undertaken until then.

[edit] The Armstrong Case

Main article: The Eliza Armstrong Case

Even before the government crisis in June, on May 23, 1885, W.T. Stead, the editor of the Pall Mall Gazette was approached by Benjamin Scott, who called his attention to its being set aside again. Stead, one of those who had been opposed to the Contagious Diseases Acts since the 1870s, was convinced to agitate popular support for protective legislation. His subsequent investigations were published in the Gazette from July 6 -10 under the title "The Maiden Tribute of Modern Babylon". Not only did he base his investigations on interviews with the police, as well as those who were involved in the flesh trade, he went beyond it by setting an example: he "purchased" a girl and wrote about it.

With the assistance of Bramwell Booth of the Salvation Army Stead bought a thirteen-year old girl, Eliza Armstrong, from her parents who lived in the Lisson Grove area of West London and went through the procedure of preparing her for export. She was examined to prove that she was still a virgin, then she was brought to a brothel and lightly-drugged to wait for her purchaser, who was Stead. He entered Eliza's room, and having regarded this as confirmation that he had his way, withdrew to write his story. Eliza, in turn, was turned over to the care of the Salvation Army.

The revelations caused an uproar. Copies of the Pall Mall Gazette were snapped up, often fetching premium prices. While many denounced Stead's exposés, it did what it was intended to do: it prompted Parliament to resume the debate over the Criminal Law Amendment Bill on July 9.

[edit] The debate resumes

The SPCC, which celebrated its first anniversary on July 13, took advantage of the resumption of the debate to make its own recommendations to the Bill, including the raising of the age of consent to eighteen years and more draconian measures to protect children from exploitation. These proposals were introduced through their representatives in Parliament. However, many members of Parliament, already infuriated by Stead's tactics sought to obstruct any alterations to the laws.

In addition to the recommendations made by the SPCC, on July 31 Liverpool representative Samuel Smith presented to the Commons a clause to abolish the oath for child victims for sexual assault. However, longtime opponents of the bill fought against it, and despite the best efforts of its supporters, the SPCC's proposal was narrowly defeated, 123-120.

Outraged by this defeat, Stead condemned this in the Gazette, listing the names of each member who voted against the clause. Congregationalist minister Benjamin Waugh, the leader of the SPCC, focusing on the fact that the proposal was defeated by only three votes, redoubled his efforts to lobby support. Along the way he managed to bring Henry James, the former Attorney-General to his side and re-introduce Smith's amendment, which he did on August 9. The Home Secretary, R.A. Cross, dropped his earlier opposition to the measure after consulting with a colleague as to the provisions of Scottish law on the subject. This was influential when the measure was once again put to a vote, and the SPCC's "oath clause" was included in the final version of the bill.

[edit] Section 11

Even before the SPCC's "oath clause" was passed, another clause was introduced by MP Henry Labouchere late in the evening of August 6. Labouchere wanted to expand its reach. It provided for a term of imprisonment not exceeding one year, with or without hard labor, for any man found guilty of "gross indecency" with another male whether "public or private", in effect, criminalizing male homosexuality.

When the bill came up for a vote the following day, one member questioned whether Labouchere's amendment had anything to do with the original intent of the bill. But the Speaker, Arthur Peel, responded that under procedural rules any amendment was permitted as long as Parliament permitted it. The Attorney-General, Richard Webster, while supporting the amendment, objected to the leniency of the sentence, and wanted to increase the penalty to two years hard labor. Labouchere agreed, and the amendment was passed.

Labouchere's insertion caused a minor furor in the press. The main objection was that the phrase "in public or in private" could expose decent folk to extortion. One commentator dubbed it "The Blackmailer's Charter". Since the law required witnesses to the act, a potential blackmailer could make up a story about anyone; therefore a man can be convicted on the strength of another's allegations. Still, the public was willing to accept this in exchange for increased protection for women and children.

However, the more far-reaching consequence was that it criminalized male homosexual acts, whether consensual or otherwise and was given the broadest possible interpretation, far from what Labouchere intended. It was the violation of this law which convicted Oscar Wilde to two years in prison in 1895. It was only in 1967 that private homosexual acts between men were decriminalized under the Sexual Offences Act 1967.

[edit] Passage and effects

The Criminal Law Amendment Act was finally passed on August 14 and in its final form effectively repealed Sections 49 and 52 of the Offences Against the Person Act 1861 and all of the 1875 version. Its provisions were as follows:

It raised the age of consent from thirteen to sixteen years of age;
It made it a criminal offence to procure girls for prostitution by administering drugs, intimidation or fraud;
It punished householders who would permit under-age sex on their premises;
It made it a criminal offence to abduct a girl under 18 without her consent for purposes of carnal knowledge;
It gave magistrates the power to issue search warrants to find missing females;
It gave power to the court to remove a girl from her legal guardians if they condoned her seduction;
It provided for summary proceedings to be taken against brothels; and
It raised the age of felonious assaults to thirteen and misdemeanor assault between thirteen and sixteen as well as imbecile women and girls.

It also had sections outlining the penalties for abduction and procuring for the purpose of prostitution for girls under the age of eighteen, as well as laxing the rules on witness testimony: while children under the age of twelve were allowed to testify as proposed by the SPCC, it also gave the right of the accused to testify on his own behalf. The effect of the law became noticeable almost immediately. While few cases of sexual offences were reported before the passage of the law, the number of reported cases have skyrocketed since in the months afterwards, especially child molestation cases. It may be that the actual number of cases remained relatively the same but the fact that more cases were reported and brought to the courts was a reflection of how the law changed perceptions of how women and children should be treated. In an era when over half the adult population were denied the privileges of citizenship such as the right of suffrage, allowing a child to testify under oath with prejudice was a powerful means of meting out justice. While the inclusion of Section 11 criminalized male homosexuality, nevertheless it was connected with notions of male lust which many felt was the root cause for vice. It would take more than eighty years before decriminalization would take effect.