The committee on homosexual offences and prostitution

This essay is centred on the critique written by Lord Patrick Delvin in response to THE Report of the Committee on Homosexual Offences and Prostitution (herein after referred to as the Committee) known as the Wolfenden Report rejecting the argument by the Committee on how law should be used against morals.

The Committee in their report stated that:

“Our own formulation of the function of the criminal law so far as it concerns the subjects of this enquiry. In this field, its function, as we see it, is to preserve public order and decency, to protect the citizens 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 and economic dependence.

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 behaviour, further than is necessary to carry out the purposes we have outlined." [1] 

The Committee based on the above statement made the recommendation that homosexual acts in the private between two consenting adults over the age of twenty-one should be legalised. [2] This is because they believed that there remain a realm of morality and immorality which the law should not interfere with unless a deliberate attempt is made by the society to equate the sphere of crime with that of sin. [3] 

In reacting to the recommendation of the Committee, Patrick Delvin, wrote a critique attacking the recommendation and the reasoning behind the Committee’s recommendation.

In this essay, I will examine the style, content, strength and weaknesses of Patrick Delvin’s critiques.

A look at Patrick Delvin’s work shows that he adopted an archaic style of writing. There is no subheading and the paragraphing was clustered with his quotations. Compared to the works of Mark Tebbits [4] . Mark Tebbits adopted coherent and logical presentation of his writing. Secondly, Patrick Delvin’s use of language was devoid of literary and logical flare. His language is boring, consequently does not engage the interest of the reader for along while.

In the content of Patrick Delvin’s essay, the issue arises as to enforcement of morals. What is moral and what is immoral? It is noted that there is always a conflict between morality and immorality as to who sets the standards, whether the society or the individual.

Patrick Delvin in his work vehemently rejected the Committee’s recommendation that homosexual act between consenting adults in private should be legalized. He criticised the statement made that private immortality should not be the concern of the criminal law except in the special circumstances mentioned. [5] 

The import of Patrick Delvin’s statement is that the law shall be effective not only to the extent that it protects the public morality and decency and protects the individual from harm. He rejected the fact that the law should not interfere in the area of private morality, there by separating private morality from immorality. That brings us to the conclusion that whenever, privacy is involved in any crime, the right to prosecute such crime is implicitly surrendered.

However, taking a recourse at the content of Patrick Delvin’s argument, there seems to be contradictions in the reasons he based his argument on. First, Patrick Devlin supported the legislation that rejected the Wolfenden report and went ahead to accept the liberalism and the doctrine of maximum tolerance that legislation rejected.

In his support for legislation, he stated that he believes that a complete separation of sin from crime would not be good for the moral law and might be disastrous to the society [6] . However, in discussing his reason for supporting the legislation, he deviated from the substance and initiated discussion on the relationship between criminal law and moral law as the ratio for determining the immorality and private morality of an act. He stated that the criminal law cannot justify any of its provision by reference to the moral law. Murder shall not be prohibited because it is immoral rather the state should base the reason for prohibition on other reasons like to achieve consistency and not on morals. [7] 

From the preceding paragraph Patrick Devlin is now tilting in support of the Committees report whose recommended that an act should not be prohibited just for the mere fact that it is immoral rather it should be based on the fact the act complained of offends public order and decency.

Patrick Devlin went ahead to say that rules are made to achieve uniformity and convenience and rarely involves evil or good. [8] This statement is similar to the Committee’s report which elucidates that “harm" should be the only reason why an act should be considered immoral and criminal not because it is presumed to be good or evil. An act as far as it’s done in the private is implicitly out of the ambit of the law whether it is evil or not is immaterial. Whenever an act is considered to be injurious or harmful to the society, then the law explicitly comes into place. According to Patrick Devlin, the issue of morality should be left out of the law on the ground of private morality [9] .

Worst still, Patrick Devlin advocated for a balance, a bit of liberalism and toleration of the maximum individual freedom that is not consistent with the integrity of the society. He argued that feelings of the society cannot weigh enough to deprive a freedom of choice. He considered that before an act can be put beyond tolerance, there must be a deliberate judgement that the practice is unjust to the society; there must be a real feeling of abhorrence [10] .

From all these preceding paragraphs Patrick Devlin has not rested his rejection of the Committee’s report on a consistent and coherent reasoning as he has gone ahead to state that privacy as far as possible must be respected and that there should be a balance between the enforcement of law and the right to privacy. This is the bedrock of the Committee’s report which he rejected.

However, despite the incoherent argument of Patrick Delvin discussed above, Patrick Delvin has forcefully and convincingly supported his argument that morality should not be separated from law. He raised the issues that in a situation where moral is removed from the law on the bases of privacy, there will be total overturn of the social values and the fundamental principle that binds the society together. He further added that if law is restricted on the bases of privacy, then crimes like euthanasia, abortion and incest which are done in the private will no longer be crime and this situation will definitely go to the maintenance of decency and order in the society which is the moral order and bed rock of the society [11] .

This Patrick Delvin’s argument clearly brought to limelight that there can be no theoretical separation of law from moral as purported by the Committee [12] . The state is under a duty to protect itself from danger.Patrick Devlin is strongly advocates the continuing right of the state to pass moral judgement and use the law to reinforce judgement. He equally reinforced the fact that the community is made of shared ideas and without these shared ideas, politics, ethics and moral no society will exist. These shared ideas are bounded together in the moral values of the society. Then should we hide the morals from the law when it is part of the society? The answer is practically no, since as Patrick Delvin stated if the morals go, the society will go likewise. [13] 

Patrick Devlin, categorically countered the Committee’s report that admits that homosexuality is a crime but the law should not interfere except on special circumstances [14] . Patrick Delvin, in his argument stated that the extent of these circumstances to which the law should be used to enforce morality if explained is so wide that it defeats the argument of the Committee. For instance in a situation where the law is extended not to only protect the youth, vulnerable and less privileged in the community but other citizens, there will be no limit to the reach of the law [15] .

In conclusion, I will state that the issue of balancing the deviation from our democratic order to tolerate the deviation from social norms relating to the personal codes of morality is yet to be determined. In recent development of Homosexuality cases, there has been a drift in support of Homosexuality. Taking recourse at the United Kingdom Sexual Offences (Amendment Act) 2000, the age of consent for homosexuality has been reduced to 16.

Additionally, there have been judicial decisions on the issue of homosexuality. For instance in the case of A.D.T v. UNITED KINGDOM [16] ,the applicant mainly argued that his prosecution and conviction for participating in sexual activity with more than one consenting male adult in the privacy of his room is constituted interference with his private and family life. The court deciding the case in favour of the applicant stated that act in question was purely private in nature, so there was no need to justify the application of the legislation in the proceeding against the applicant.