Edit: 20/06/07 - Since I now have a law degree, and access to a law library, I may tweak some of this in the near future. I suspect occasional slight innaccuracies. Take with a pinch of salt.
An Introduction to Buggery
The subject of buggery has long been controversial, the act of a man putting his penis into another person's anus for sexual pleasure (though quite why else one would want to do it beats me), has been seen as satanic by some, unnatural by others, disgusting by still more, all right by many and highly pleasurable by those who practise it. In Ancient Greece, buggery was commonplace amongst men and boys; an older man would take a younger as his pupil and teach him. In return, the pupil would allow the older man to have sex with him. Some historians, however, believe this was in fact intracrural intercourse; the act of a man rubbing his penis inside the clenched thighs of his partner.
And so it was that the Romans learnt of this practice and indulged in it, reportedly as a means of humiliating their enemies when they beat them in combat. Though this might not be true, the Romans did make the act of public buggery a crime, and according to one source had a verb set aside for the punishment; that of having a radish inserted up the anus of the offender. (This was also the Ancient Greek punishment for adultery.)
After the fall of the Roman Empire, Europe entered the dark ages, a time historians pretend not to know anything about, but it is unlikely that this was the only period in history in which this act was not committed. The thirteenth century however, saw the origin of the term. At this time, England was a Catholic country and one of the enemies of the church at that time were the Bogmils. The Bogmils were a religious sect and Bogmil became the official religion of Serbia and Bulgaria until the fourteenth century when Islam took over. Of course, at this time, if you wanted to insult your enemy, you made reference to his deviant sexual practices and here is derived the Middle English word "bugger" from the French word "bougre" referring to the Bogmils.
A Brief History of British Buggery (1290 – 1986)
Buggery initially meant much more than it does today, indeed below, you will find that Webster 1913 defines it as "unnatural sexual intercourse," as opposed to simply anal sex. It in fact covered the entire range of "unnatural sexual acts" such as fellatio and bestiality. Incidentally, "sodomy," is synonymous and is the Scottish term for the same; it reportedly refers to the irregular sexual practices of the residents of the biblical city of Sodom, however one wonders how bad they actually were, as one biblical scholar, or possibly comedian put it "if God does not destroy America, he owes Sodom and Gomorra an apology."
But back to Britain. As mentioned before, England and Scotland were a catholic countries, this effectively meant that the citizens of the countries had to follow two sets of laws, one of these was set by the monarch of that country and was known as "statute law", and the other was set by the pope in Rome, and was known as "ecclesiastic law". The first mention of buggery in English law was in 1290, in which the Fleta Document, a list of common law, stated that the punishment should be burying alive. More generally, however, buggery was held to be an offence against God and so was illegal under ecclesiastic law and the punishment could be burning alive. The effect of this was that very few people were tried for this crime, in fact, in Scotland, none were tried for anal sex with a human, (although some bestiality cases were heard). Interestingly, in England, those who were tried with the crime were more often than not members of the clergy, of course, in these cases, the authorities presiding over the courts usually decided to let the culprit off with a light punishment.
In England this changed in February 1534 when Henry VIII, having split with the church two years earlier, made the "abominable vice of buggery committed with man or beast," a statute offence, punishable by hanging. You might note that the definition "buggery" alone no longer included bestiality. Some historians speculate that this was a direct attack on the church since errant monks could now face execution for wayward practices. However, it was not until the investigations of Thomas Cromwell, some years later, that the number of buggery cases was brought to light, and as one historian put it, "had [the Reformation] parliament passed the act as an attack on the church, they would have said so." A far more likely reason for them passing the act was to get at that other hated enemy of the English, the French! French culture was at a high and many courtiers reflected this by copying French manners and fashions. The English considered the men's fashions to be "womenlike," and the 1510 Treatise of the Galaunt described them as "progeny of Lucifer" who committed lechery, "abusyon," "abhomynable" acts and defied "the noble course of nature."
The first person to be convicted under this new law was Walter, Lord of Hungerford. He was tried and convicted of engaging in buggery with his male servants. He was also charged with witchcraft and incest with his daughter and was executed. The second person to be convicted was a man who in June 1534 had become headmaster of Eton. After being convicted of stealing some candles from the school, Nicholas Udall had been called as "suspect to be counsail" in a case where some plates, stolen from Eton, had been bought by ex Eton scholar, Thomas Cheney. In the course of the trial, Udall admitted to sexually and physically abusing Cheney and other pupils. Because his crimes had not included acts of treason, Udall sentence was reduced to one year's imprisonment, after which, he could go free. However, once free, Udall complained that "no man of honor" would "receive" or "favour" him. After news of his conviction became public, rumours started that buggery flourished in England's public school, just how true this is, I cannot say.
The Buggery Act of 1534 was repealed by Edward VI for a number of months in 1548, and once again by Mary I in 1553 when it once again became ecclesiastical law. Elizabeth I reintroduced it in 1563, and it remained relatively untouched for two hundred and fifty years.
The next notable conviction was that of the suspected papist, Mervyn Touchet, 2nd Earl of Castlehaven, in 1630. The trial was a scandal, and it set the precedent for all buggery cases in the next two centuries! According to the accounts given at the trial, soon after marrying his second wife, Lady Anne Stanley, Touchet had embarked on a series of orgies with his menservants and his wife. Indeed, on his first night, Lady Stanley tells us that he summoned three men to his room and commanded them "to show their Nudities, and forc'd me to look upon them, and to commend those that had the longest." On the succeeding days, Touchet recruited men from the docks and street into his household and brought them up to his bedchamber where he would rape them, and have them rape his wife whilst he held her down. Specifically, however, the trial was concerned with his relationship with Florentius (sometimes called Lawrence) Fitz-Patrick, a vagrant, who had happened onto Castlehaven's Fonthil estate and whom Castlehaven had been observed buggering on the 1st and 10th of June of that year. Against the charges of buggery, Castlehaven pleaded not guilty on the grounds that he had not emitted inside the men's anus, but had instead done so between his thighs, and so technically was not guilty of the crime. The court decided, however, that it was still buggery and sentenced him to death by decapitation, which was carried out on Saturday the 14th of May 1531.
The Castlehaven trial had two major effects over the following two hundred years. The first, and most obvious, was that a legal precedent had been set, that of a person being convicted of buggery, despite not emitting in the anus; this was later interpreted to include oral sex, and interfemoral intercourse. The second effect was that it sparked of a connection between Catholicism and homosexuality with rape and brutality. Up until the nineteenth century, pamphlets were published which told of how the pope had influenced Castlehaven, first to become homosexual, then to rape his wife.
The late eighteenth century was a period famous for its sexual decadence. In it, the British upper classes indulged in wild parties, which reportedly often turned into orgies. Of course, in public, no-one would admit to such things and so, to avoid public embarrassment the buggery laws were reinterpreted. How they were reinterpreted is quite incredible; it was decided that a conviction for buggery could only be brought if the person charged had not only ejaculated in the anus of his partner, but if the prosecution could provide proof, preferably a witness, that this had occurred. Amazingly, some convictions were brought against people, although the punishments tended not to be capital.
Noting the difficulty of prosecuting those accused of Buggery, the 1828 Offences Against the Person act reduced the standard of proof required to penetration. It should be noted, however, that in 1817, oral-genital contact had been removed from the definition of buggery and the 1828 act did not reinstate it. Capital punishment was retained; the last person to be sentenced to death for buggery was executed in 1838. Britain at this time saw itself as a moral bastion against the decadence of Europe and the Americas, and still considered buggery to be only better than bestiality in the ranks of depravity. However, to make it a capital offence seemed anachronistic, and in 1861, the death penalty was removed. The new punishments were anything from ten years to life imprisonment.
The next major change to the buggery laws came in 1885 with The Labouchere Amendment. This amendment, put forward by Henry Labouchere, made criminal the act of gross indecency, and raised the age of consent for girls from thirteen to sixteen. The fact that what constituted gross indecency was left up to juries to decide allowed them to convict anyone of anything that they found objectionable; this included, for the first time in British history, any sexual touching between men. The act did, however, reduce the sentence to two years imprisonment, with or without hard labour.
The most famous man to be convicted of this new offence was the playwright and wit Oscar Wilde. The judge of his trial believed that the sentence he passed was in fact too lenient, but was bound by the Labouchere amendment to uphold it; he passed the toughest sentence he could and sent Wilde to prison for two years, where he would be required to sleep on a bare board and walk on the treadmill for six hours every day. Whilst in prison, Wilde reportedly resorted to what the jailer called a "perverse sexual practice," that is, masturbation. Reportedly, his cell smelled so bad that it had to be sprayed daily with Carbolic Acid!
For eighty years the laws remained the same. In 1938 there were 134 prosecutions for buggery in England and 822 for attempted buggery and indecent assault. Figures rose over the next fourteen years and in 1952, the year Elizabeth II came to the throne, there were 670 prosecutions for buggery and 3,087 for attempted buggery and indecent assault. Recognising the problem, in 1957, parliament commissioned a study of convicted homosexuals and their treatment. This lead to the 1960 commons debate, instigated by Sir Kenneth Robinson in which he attempted to have Britain's buggery laws repealed, ultimately the motion was defeated by two to one. Seven years later, however, the 1967 Sexual Offences Act was adopted, this allowed buggery to take place between two consenting males as long as no other men were present and the door was locked. It was not allowed to take place in an hotel room because hotel staff could still enter.
Modern British Buggery (1986 – 2004)
In 1986 an act was passed by the House of Lords that prohibited the use of sex education materials that advocated homosexual relationships. One reason for this was that one of the early beliefs about the new super virus HIV, was that it was only spread through anal sex; buggery. This was compounded in 1988 by the controversial section 28, which prohibited the promotion of the homosexual lifestyle in schools, this lead to children like me, going through state education in the 1990s, having to ask our parents what "gay" and "bugger" meant… not a day I like to remember. Section 28 is now considered by most to be homophobic and draconian, but it was only repealed in 2000.
In 1994, John Major's Conservative government voted to lower the age of consent for buggery to 18. Interestingly, this law had the effect of legalising the practice for heterosexual couples, who until this point had been breaking the 1885 Labouchere Amendment by practicing it! This act was, however, controversial, since whilst appearing to put both homosexual and heterosexual coupled on equal footing, it in effect made the age of consent for homosexual penetrative sex between two men two years higher than for women.
Tony Blair's Labour government sought to tackle the issue in 2000. Since then, the legislation has remained the same. As it currently stands:
Those who practice buggery have a right to privacy.
Buggery of an animal is illegal, but the prosecution should balance public disgust at the act with:
- Buggery is defined as anal intercourse between two people.
- The age of consent for buggery is 16 years old.
- Sixteen or seventeen year-olds will only be prosecuted where it is believed to be in the public interests to do so. (Though actually, no crimes will be prosecuted if it isn't in the public interest.)
- Consent to vaginal intercourse does not imply consent to anal intercourse, anal rape is now a recognised crime.
- Anal intercourse in public will usually be prosecuted unless it is decided that it wouldn't be in the public interest.
- Anal intercourse in a public toilet will be weighed against:
- Likelihood of members of the public witnessing the conduct.
- Concern or complaints expressed by members of the public to the police about a particular lavatory.
- Likelihood of members of the public coming to regard the lavatory as unsafe to use or offensive.
- Likelihood of the lavatory becoming a site frequently used for homosexual conduct.