3.4 Sentenced to death: the end of the road?

Naomi, can we come to this cultural term of 1857, Naomi. Flesh out what you think happens at this moment and how the temperature changes?

Sure, well, you know, as with the beauty myth, right, when you see a giant cultural shift and look at forces that seem to have brought it about, there is never a smoking gun, right, I can't say definitively X caused Y. However, this is, as I mentioned, there was a crisis point in 1857 in Britain of people who hadn't been empowered demanding empowerment and there was also a proliferation of pornography with new technologies being sold here in London and -

We get mass - mass printing culture for the first time with the abolition of the paper tax

Exactly, and you also have the mass media, you know, news is travelling faster because of railroads and you know new technologies are literally shaking the foundations of who gets to keep and get hold of power and, at the same, time there are destabilising things happening like mutiny but most dramatically what's really forgotten is that the first wave of feminism was one of the biggest issues always in the nineteenth century in Britain as well as in America you know the woman question and highly, organised, educated, middle class women had lobbied in the 1840s and 1850s for a more equitable divorce law, right, so in 1857 the Matrimonial Causes Act was being codified by Parliament, you know, Gladstone was there it was, they were hammering out the first secular divorce law. Before that you had to go through the ecclesiastical courts, it took forever, it was very difficult to get a divorce. So people were scrutinising this very, very closely and what women were demanding was if he can divorce her for adultery, she should be able to divorce him for adultery, a fair law. Well, heterosexual men didn't want to do that, lawmakers didn't want to do that, and you can see in the Parliamentary record this humming and hawing like how do we get away from this is this still placate these clamouring, influential women who are submitting these petitions and so on. So you finally see them stumbling on this phrase "rape, sodomy, bestiality" and kind of going "oh, that, awesome, that solves the problem" and so they create this network of very difficult loopholes by which a woman can divorce an adulterous man if he abandons her for two years and if he's extremely violent to her and if he has sex with a relative of hers and if he rapes someone else and then let's throw in sodomy and bestiality because it is unlikely that the average adulterous heterosexual man will want you to have sex with an animal or another man. And so there had not been this discourse, this hysterical discourse of, you know, corruption, vice, abomination, degradation around sodomy up until literally that bill was passed and almost as a way to redirect the nation's attention away from this very successful scrutiny of heterosexual men's misdeeds. Suddenly there was what the historians call a moral panic around sodomites and sodomy and this coinage of this, you know, the tenor of aversion in homophobia that we inherit today and then you see for the next thirty years sentences that growing and growing in extremity, consensual male couples being arrested, in couples, being brought in, it's moved - sodomy is moved from the category of you know minor offences, like sheep stealing and coin clipping to rape, arson and murder, it's tried by magistrate rather than by jury of your peers so you are much more likely to be sentenced by a stranger from another social class and you get these mass arrests and then you get like elaborations on this in the 1870s – the venereological exams -

Mass arrests and executions?

Exactly.

Let's deal with the arrests, first. You mentioned that prosecutions for sodomy rise by fifty percent between 1858 and 1860 I mean what's that in numerical terms, because it's hard to read from a percentage?

That's a good question, I mean I was looking specifically at the Old Bailey records so it's just one court and I was looking at regional crime tables in national newspapers so I don't have a definitive answer except that the number of prosecutions rose by that amount.

Who was executed?

Well that's really an important question because well first of all let me just note the vast majority of the sentences were penal servitude for life times or ten or fifteen years, or transportation to penal servitude in Australia because penal servitude was invented basically in 1857 as well in the law as an alternative to executions. Paradoxically, not having penal servitude saved a lot of lives because people really didn't want to sentence their neighbours to execution, you know, that's Bill and his friend Joe, we know them so when before 1857 there were vanishing few sentences but after 1857 with the introduction of penal servitude and the crackdown on this "vice" and the new kind of discourse that said that that man's sex with that other man threatened my nuclear family, right, which is a completely new idea. You get sentences as I mentioned of penal servitude for ten or fifteen years and I found, like, several dozen executions but that was again only looking the Old Bailey records and the crime tables.

Several dozen executions?

Correct. And this corrects a misapprehension that is in every website that the last man was executed for sodomy in Britain in 1835.

I don't think you're right about this. One of the cases that you look at that's salient in your report is Thomas Silver. it says "Teenagers were now convicted more often. Indeed that year - which is 1859 -, fourteen year old Thomas Silver was actually executed for committing sodomy, the boy was indicted for an unnatural offence, guilty, death recorded." This is the first time the phrase “unnatural offence” entered the Old Bailey records. Thomas Silver wasn't executed. Death recorded, I was really surprised by this, and I looked it up, death recorded is what’s in, I think, most of these cases that you have identified as execution, it doesn't mean that he was executed, it was a category that was created in 1823 that allowed judges to abstain from pronouncing a sentence of death on any capital convict whom they considered to be a fit subject for pardon. I don't think any of the executions you've identified here actually happened.

Well, that's a really important thing to investigate. What is your understanding of what death recorded means?

Well, death recorded - this is also from my – I have just read you the definition of it now from the Old Bailey website. But I've got here a newspaper report about Thomas Silver and also something from the prisoner records that showed the date of his discharge.

“The prisoner was found guilty and sentence of death was recorded.”

Yeah.

“The jury recommended the prisoner to mercy on account of his youth.”

You see I think that this is a kind of - when I found this I didn't really know what to do with it because I think it is quite a big problem with your argument. Also it is the nature of the offence here. Thomas Silver committed an indecent assault on a six year old boy, and he served two and a half years for it in Portsmouth prison which doesn't seem too excessive, really. And I wonder about all the others because all the others that I've followed up, I can't find any evidence that any of these relationships that you've described were consensual. The other one you offer us, James Spencer, sixty year old tutor, he was a teacher who committed what was described as "felonious assaults" on school boys. One of these cases you offer is a bestiality case and not a buggery case. So I think that there is a problem here with this argument.

I mean I certainly will ask for the sources that you have. I mean, I was going by the Old Bailey records and regional crime tables and if there is, you know, further details to be added -

Well, that's how I got this through that same sort of – through that same portal. I mean the problem is is that the Old Bailey records doesn't give you any detail at all, does it, it's just names and then – and then the verdict so there is no - you don't get any sense or there is nothing that I have seen that shows you what these relationships were and I wonder whether, you know, as I said, I can't see – I can’t see that any of them were definitely consensual, romantic relationships.

Well, there I do have to argue with you -

You do!

Because I included in this version of the book selective cases and certainly if additional details showed that this kid was not executed that death recorded -

Death recorded means the opposite.

So that's really, I mean that's really important and I need to investigate that and update the book accordingly and thank you so much for calling that to my attention.

Well I am so glad - thank you for being so gracious about it because I wonder whether in a way you couldn't use it slightly to make a counter case to this that sodomy was punishable by death from I think from 1533 but the Victorians removed that capital punishment with this death recorded strategy making it a lesser offence rather than a greater one.

Well I do make that point that in 1857 penal servitude was introduced as a punishment to avoid having to sentence people to execution for sodomy but my research categorically shows that the convictions did escalate in the percentages that I identified.

But do we really know what they were being convicted for, is my question, you can't really be certain about whether or not consensual relationships being prosecuted here because the only ones that seemed to have made an impact on the record are sexual assaults.

I don't agree with you in terms of all of the cases that I address in the thesis version of this and I'd be very surprised if that's the case with the majority of the sentences as well because you do see couples being brought in who are adult men consenting and you also see a lot of entrapment and as you go along in the later decades of the nineteenth century municipal police are you know they do have quotas to fill and they are sent to basically entrap people, to solicit people in public restrooms, in parts of parks that used to be meeting places for gay men and they do - you do see over and over and I talk about this in the book, so I would respectfully, you know, certainly look at your evidence, but I would really challenge you, I would be astonished if the majority of these were violent assaults or molestations of minor and in fact, that's not what the record shows if you look at all the Old Bailey convictions. It shows adults and it shows adults that were not accusing each other of violence, it shows adults who were either accused of sodomy with each other by the state not by each other, right, or it shows adults who were entrapped and it says the solicitation of buggery.

You know …

Again respectfully - respectfully when you cite bestiality -

Could that be – could that be consensual sex between two men, the description bestiality?

Well, I was going to say, indeed, the word bestiality was sometimes used for consensual relationships between men and often it's little bit unclear in the Old Bailey records because B dash dash dash Y and so it could be bestiality or buggery.

This one has - this one is definitely bestiality as it stands -

As I believe I say in the book that is sometimes used as a term.