Report
Evidence
Report (243pp.)
PART ONE. – INTRODUCTORY
PART TWO. – HOMOSEXUAL OFFENCES
PART THREE. - PROSTITUTION
PART ONE. – INTRODUCTORY
Chapter I Procedural
and General
Terms
of Reference
Meetings
Acknowledgements
Consolidation
of the Law
Scottish
Aspects
Chapter II Our
Approach to the Problem
The
Function of the Criminal Law
The
Relationship between Law and Public Opinion
PART TWO. – HOMOSEXUAL OFFENCES
Chapter III Homosexuality
Homosexuality:
the Distinction between Propensity and Behaviour
Chapter IV The
Extent of the Problem
Inadequacy
of Statistical Information
Chapter V The
Present Law and Practice
General
Review
Chapter VI The
Treatment of Offenders
Chapter VII Preventive Measures and Research
PART THREE. – PROSTITUTION
Chapter VIII General Considerations
Prostitution,
the prostitute and the law
Chapter IX Street Offences
The
Extent of the Problem
The
Present Law
Defects
of Present Law
The
Requirement to Establish “Annoyance”
The
Prostitute as the Subject of Express Legislation
Nonurban
Areas
“Curb
crawling”
Police
Procedures
Women
Police
Penalties
Possible
Consequences of Amending the Law
Licensed
Brothels
Research
Chapter X Living on the Earnings of
Prostitution
Chapter XI Premises Used for the Purposes
of Prostitution
Chapter XII Procuration
Chapter XIII Miscellaneous
Provisions
PART FOUR. – SUMMARY OF RECOMMENDATIONS
RESERVATIONS
APPENDICES
NOTES
PART ONE. - INTRODUCTORY
Pages
Chapters I-II
Paras 1-16 19-24
Chapter I Procedural and General 19-22
Paras 1-11
Terms of Reference 19
1. We were appointed on 24th
August, 1954, to consider:
(a) the law
and practice relating to homosexual offences and the treatment of persons
convicted of such offences by the courts; and
(b) the law
and practice relating to offences against the criminal law in connection with
prostitution and solicitation for immoral purposes,
and to report what changes, if any,
are in our opinion desirable
Meetings 19
Paras 2-3
2. We have met on 62 days, of which
32 were devoted to the oral examination of our witnesses.
3. Our meetings have been held
throughout in private. …
Acknowledgements 19
Paras 4-6
4. We wish to acknowledge our
gratitude and appreciation for the help we have received from our many
witnesses. …
5. We have also had the advantage of
access to data collected by the Cambridge University Department of Criminal
Science in connection with a survey of sexual offences committed during the
year 1947; …
6. We also wish to place on record
our gratitude to our Secretary, Mr. W.C. Roberts of the Home Office, …
Consolidation of the law 20-21
Paras 7-8
7. Since the date of our appointment,
the law dealing with much of the matter under review has, so far as it relates
to England and Wales, been consolidated in the Sexual Offences Act, 1956.
…
8. In the body of the report we
have, so far as we have been able to do so with accuracy, stated the law in
general terms instead of interrupting the narrative with extracts from the
relevant statutes. ….
Scottish Aspects 21-22
Paras 9-11
9. Throughout our inquiry, we have
been conscious that our terms of reference extend to Scotland as well as to
England and Wales. …
10. So far as they may be applicable
there, our recommendations are intended to apply to Scotland as well as to
England and Wales. ….
11. In several places in the report
we have quoted decisions of the courts on the interpretation of the statutory
or common law. ….
Chapter II Our Approach to the Problem
Paras 12-16 23-24
The function of the criminal law
Paras 12-15
12. It will be apparent from our
terms of referencethat we are concerned throughout
with the law and offences against it. ….
13. Further, we do not consider it
to be within our province or competence to make a full examination of the
moral, social, psychological and biological causes of homosexuality or
prostitution, or of the many theories advanced about their causes. Our primary
duty has been to consider the extent to which homosexual behavior and female
prostitution should come under the condemnation of the criminal law, and this
has presented us with the difficulty of deciding what are the
essential elements of a criminal offence.
…
In this field, it’s function,
as we see it, is to preserve public order and decency, to protect the citizen
from what is offensive or injurious, and to provide sufficient safeguards
against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body
or mind, inexperienced, or in a state of physical, official or economic
dependence.
14. It is not, in our view, the
function of the law to intervene in the private lives of citizens, or to seek
to enforce any particular pattern of behavior, further than is necessary to
carry out the purposes which we have outlined. It follows that we do not
believe it to be a function of the law to attempt to cover all the fields of
sexual behavior. Certain forms of sexual behavior are regarded by many as
sinful, morally wrong, or objectionable for reasons of conscience, or of
religious or cultural tradition; and such actions may be reprobated on these
grounds. But the criminal law does not cover all such actions at the present
time; for instance, adultery and fornication are not offences for which a
person can be punished by the criminal law. Nor indeed is prostitution as such.
15. We appreciate that opinions will
differ as to what is offensive, injurious or inimical to the common good, and
also to what constitutes exploitation or corruption; ….
The relationship between law and public opinion 24
16. We have had to consider the
relationship between the law and public opinion. It seems to us there are two
over-definite views about this. On the one hand, it is held that the law ought
to follow behind public opinion, so that the law can count on the support of
the community as a whole. On the other hand, it is held that a necessary
purpose of the law is to lead or fortify public opinion.…
PART TWO. – HOMOSEXUAL OFFENCES
Chapters III-VII
Paras 17-221 25-128
Chapter III Homosexuality
Paras 17-36 27-36
Homosexuality: the Distinction between Propensity and Behaviour
Paras 17-24 27-29
17.We are
concerned in this part of our inquiry, with homosexual offences. Any lengthy or
detailed study of the nature or origins of homosexuality would, in our view,
have fallen outside our terms of reference, even if we had felt ourselves qualified
to embark on it. …
Chapter IV The extent of the problem
Paras 37-47 37-41
Inadequacy of Statistical Information
Paras 37-40 37
37. Our considerations of the
problems we have had to face would have been made much easier if it had been
possible to arrive at some reasonably firm estimate of the prevalence either of
the condition of homosexuality or of the commission of homosexual acts. …..
Chapter V The present law and practice 42-91
Paras 48-147
(i) General review
Paras 48-76 42-54
The function of the law in this
field
Paras 48-49 42
48. It is against the foregoing
background that we have reviewed the existing provisions of the law in relation
to homosexual behavior between male persons.
…
60. We recognize that a proposal to
change a law which has operated for many years so as to make legally permissible
acts which were formally unlawful, is open to criticisms which might not be
made in relation to a proposal to omit, from a code of laws being formulated de novo, any provision making these acts
illegal. ….
Arguments in favour
of the present law considered and rejected 43-7
Para 61-2
61. Further, we feel bound to say
this. We have outlined the arguments against a change in the law, and we recognise their weight. We believe, however, that they have
been met by the counter-arguments we have already advanced. There remains one
additional counter-argument which we believe to be decisive, namely, the
importance which society and the law ought to give to individual freedom of
choice and action in matters of private morality. Unless a deliberate attempt
is to be made by society, acting through the agency of the law, to equate the
sphere of crime with that of sin,
there must remain a realm of private morality and immorality which is, in brief
and crude terms, not the law’s business. To say this is not to condone or
encourage private immorality. On the contrary, to emphasise
the personal and private nature of moral or immoral conduct is to emphasise the personal and private responsibility of the
individual for his own actions, and that is a responsibility which a mature
agent can properly be expected to carry for himself without the threat of
punishment from the law.
62. (See Reservation I(a) page 192) We
accordingly recommend that homosexual behavior between consenting behavior in
private should no longer be a criminal offence
63. This proposal immediately raises
three questions: What is meant by “consenting”; wha
tis meant by “in private”; What is meant by “adult”? ….
Chapter VI The treatment of offenders
Chapter VII preventive measures and research
PART THREE. - PROSTITUTION
Chapters VIII-XIII
Paras 222-354 79-183
Chapter VIII General Considerations
Paras 222-8 131-33
Prostitution, the prostitute and the law
Paras 222-228 131-133
222. By our terms of reference we
are required to consider –
“the
law and practice relating to offences against the criminal law in connection
with prostitution and solicitation for immoral purposes”
So far as our terms of reference
relate to offences in streets and public places, the problems were examined by
an earlier Committee (the Street Offences Committee) set up in 1927 under the
chairmanship of the late Lord Macmillan (then Mr. Hugh Macmillan, K.C.); and we
have studied the report of that Committee[2] in coming to our conclusions.
223. it
would have taken us beyond our terms of reference to investigate in detail the
prevalence of prostitution or the reasons which lead women to adopt this manner
of life. ….
224. Prostitution in itself is not,
in this country, an offence against the criminal law. …it cannot be
eradicated through the agency of the criminal law. …For so long as these
propositions continue to be true there will be prostitution, and no amount of
legislation directed towards its abolition will abolish it.
225. Prostitution is a social fact
deplorable in the eyes of moralists…
226. It follows that there are
limits to the degree of discouragement which the criminal law can properly
exercise towards a woman who has deliberately decided to live her life in this way, …the law by itself cannot do so.
227. At the same time; the law has
its place and function in this matter. We cannot do better than quote the words
of the Street Offences Committee:
As
a general proposition it will be universally accepted that the law is not
concerned with private morals or ethical sanctions. On the other hand, the law
is plainly concerned with the outward conduct of citizens in so far as that
conduct injuriously affects the rights of other citizens. Certain forms of
conduct it has always been thought right to bring within the scope of the
criminal law on account of the injury which they occasion to the public in
general. It is within this category of offences, if anywhere, that public
solicitation for immoral purposes finds an appropriate place.
…
228. We have found it convenient to
deal with this part of our inquiry under five broad headings….
Chapter IX Street Offences
Paras 229-97 134-159
The extent of the problem
Paras 229-32 134-6
229. From the evidence we have
received there is no doubt that the aspect of prostitution which causes the
greatest public concern at the present time is the presence, and the visible
and obvious presence of prostitutes in considerable numbers in the public
streets of London and of a few provincial towns. …….
The present law
Paras 233-48 136-140
233. Our impression is that the
great majority of prostitutes are women whose physiological makeup is such that
they choose this life because they find in it a style of living which is to
them easier, freer, and more profitable than would be provided by any other
occupation. As one of our witnesses[3] put it ‘Prostitution is a way
of life consciously chosen because it suits a woman’s personality in
particular circumstances’
Defects of the present law
Paras 249-50 140-141
The requirement to establish “annoyance”
Paras 251-6 141-3
The prostitute as the subject of express legislation
Paras 257-65 143-7
Nonurban areas
Para 266 147
“Curb crawling”
Para 267 147
Police procedures
Paras 268-72 148-150
Women police
Para 273 150
Penalties
Paras 274-84 150-55
Possible consequences of amending the law
Paras 285-90 155-7
Licensed brothels
Paras 291-96 157-9
Research
Para 297 159
Chapter X Living on the Earnings of Prostitution
Paras 298-307 160-3
The law stated
Paras 298-9 160
Statistics
Para 300 160-1
The law considered
Paras 301-7 161-3
Chapter XI Premises used for the purposes of prostitution
Paras 308-36 164-175
The law stated
Paras 308-14 164-6
The legal distinction between brothels and other premises used for
prostitution
Paras 315-7 166-8
Proposals for amendment of the law
Paras 318-32 168-174
Prosecutions by local authorities
Paras 333-5 174-5
Statistics
Para 336 175
Chapter XII Procuration
Paras 337-46 176-80
The law stated
Paras 337-341 176-9
The law considered
Paras 342-246 179-80
Chapter XIII Miscellaneous Provisions
Paras 347-54 181-2
Refreshment houses, etc.
Paras 347-51 181-2
Aliens
Paras 352-3 182-3
The punishment of offences
Para 354 183
PART FOUR. – SUMMARY OF RECOMMENDATIONS
Para 355 187-191
355.
The following is a summary of our recommendations: -
(a) Homosexual Offences
(i)-(xvii) 187-189
(b) Prostitution
189-191
We recommend:[4] -
(xix) That the law relating to street
offences be reformulated so as to eliminate the requirement to establish
annoyance (paragraph 256).
(xx) That the law be made of general
application (paragraph 266).
(xxi) That consideration be given to the
possibility of introducing more widely the more formal system of cautioning
prostitutes which is in force in Edinburgh and Glasgow (paragraph 270).
(xxii) That consideration be given to the
practicability of extending the practice of referring to a moral welfare worker
particulars of a prostitute cautioned for the first time (paragraph 270).
(xxiii) That the maximum penalties for
street offences be increased, and that a system of progressively higher
penalties for repeated offences be introduced (paragraph 270).
(xxiv) The courts be given explicit powers to
remand, in custody if need be, for not more than three weeks, a prostitute
convicted for the first or second time of a street offence, in order that a
social or medical report may be obtained (paragraph 280).
(xxv) That research be instituted into the
aetiology of prostitution (paragraph 297).
(xxvi) That magistrates’ courts be
empowered, on convicting a tenant or occupier of
(i) keeping or managing, or acting or
assisting in the management of, a brothel; or
(ii) knowingly permitting the premises to
be used as a brothel; or
(iii) knowingly permitting premises to be
used for the purposes of habitual prostitution,
to
make an order determining the tenancy or requiring the tenant to assign the
tenancy to a person approved by the landlord (paragraph 326).
(xxvii) That the landlord have the right to
be heard in regard to the making of such an order (paragraph 327).
(xxviii) That the courts be empowered to
require a tenant or occupier charged with any of the offences mentioned in
Recommendation (xxvi) to disclose the name and address of the person to whom he
pays his rent; and that there be similar power to require each lessor of the
premises, in turn, to disclose the name and address of his superior lessor
(paragraph 328).
(xxix) That a landlord letting premises at
an exorbitant rent in the knowledge that they are to be used for the purposes
of prostitution be deemed, in law, to be “living on the earnings of
prostitution”; and that the same apply to any agent knowingly taking part
in the transaction (paragraph 331).
(xxx) That prosecutions in respect of
premises used for immoral purposes, be undertaken, as a general rule, by the
police (paragraph 335).
J. F. WOLFENDEN.
12th August, 1957
.
RESERVATIONS
192-208
APPENDICES
I Statistics relating to Homosexual
Offences 210-222
II Statistics relating to Prostitution
Offences 223-228
III Note on the law relating to
Homosexual Offences in European Countries 229-233
IV List of witnesses 233-239
NOTES
240-243
Evidence
Q. (Mrs. Cohen) [5]:
“Do you think it is possible to stop prostitution, because that is
what you are trying to do, are you not? You are going to make it practically
impossible. Do you think you are trying to do the impossible?”
A. (Alderman Sir Arthur Howard,
“You assume that prostitution is defined, and
that takes us back to the problem we all have to face. There is a persistent
inclination in human beings, of both sexes, to indulge in sexual intercourse,
despite what laws and Churches have done that persists, and we did not see that
there was any prospect of creating any law which would be operable, which would
make it a crime. Even if we did think it was possible to create legislation of
that sort, we do not believe human nature would change so much that the
practice of extra-mural intercourse would slowly disappear.”
BBC
interview with Lord Wolfenden 1957 (video)
Hansard: House of Commons Nov 26 1958
Media
British Medical Journal Sept 14 1957
Commentary
Modern
Law Review Jan 1958 (Abstract)
Last updated: March 16, 2011
Dr Michael Goodyear,
For any problems, please contact: mgoodyear@dal.ca
[1] Cmd 247
[2] Cmd. 3231 (1928)
[3] Mrs Rosalind Wilkinson, in: British Social Biology
Council. Women of the Streets: A
sociological study of the common prostitute. Rolph
CH (ed.) secker & Warburg,
[4] Note: Certain recommendations have application
only in relation to
[5] Public Record Office: Home Office 345/12/16