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The Buggery Act 1533, formally An Acte for the punishment of the vice of Buggerie (25 Hen. 8 c. 6), was an Act of the Parliament of England that was passed during the reign of Henry VIII.
An Acte for the punishment of the vice of Buggerie
It was the country's first civil sodomy law, such offences having previously been dealt with by the ecclesiastical courts.
The Act defined buggery as an unnatural sexual act against the will of God and Man. This was later defined by the courts to include only anal penetration and bestiality.[2] The act remained in force until it was repealed and replaced by the Offences against the Person Act 1828, and buggery remained a capital offence until 1861, though the last executions were in 1835.
The Act was piloted through Parliament by Henry VIII's minister Thomas Cromwell (though it is unrecorded who actually wrote the bill), and punished "the detestable and abominable Vice of Buggery committed with Mankind or Beast". Prior to the 1550s, the term "Buggery" was not used in a homosexual sense, rather related to any sexual activity not related to procreation, regardless of gender or species involved in the sexual act, and also covered sexual crimes of a non-consensual nature. The law was not designed to police sexual activity, rather was simply taking a canon law and making it a civil law, a test case in removing church power. "Buggery" was not further defined in the law.[3] According to the Act:
the offenders being hereof convicted by verdict confession or outlawry shall suffer such pains of death and losses and penalties of their good chattels debts lands tenements and hereditaments as felons do according to the Common Laws of this Realm. And that no person offending in any such offence shall be admitted to his Clergy ...[4]
This meant that a convicted sodomite’s possessions could be confiscated by the government, rather than going to their next of kin, and that even priests and monks could be executed for the offence—even though they could not be executed for murder.[4] In moving what had previously been an offence tried by ecclesiastical courts into the secular ones, Henry may have intended it as a simple expression of political power along with other contemporary acts such as Submission of the Clergy Act 1533 and one year before the Act of Supremacy 1534.[5] However Henry later used the law to execute monks and nuns (thanks to information his spies had gathered) and take their monastery lands—the same tactics had been used 200 years before by Philip IV of France against the Knights Templar.[6]
In July 1540, Walter Hungerford, 1st Baron Hungerford of Heytesbury, was charged with treason for harbouring a known member of the Pilgrimage of Grace movement. He was also accused of buggery, as he was suspected of raping his own daughter. Hungerford was beheaded at Tower Hill,[7] on 28 July 1540, the same day as Thomas Cromwell.[7]
Nicholas Udall, a cleric, playwright, and Headmaster of Eton College, was the first to be charged with violation of the Act alone in 1541, for sexually abusing his pupils. In his case, the sentence was commuted to imprisonment and he was released in less than a year. He went on to become headmaster of Westminster School.
The Act was repealed in 1553 on accession of the staunchly Catholic Queen Mary, who preferred such legal matters adjudicated in ecclesiastical courts. However, it was re-enacted by Queen Elizabeth I in 1563. Although "homosexual prosecutions throughout the sixteenth century [were] sparse" and "fewer than a dozen prosecutions are recorded up through 1660 ... this may reflect inadequate research into the subject, and a scarcity of extant legal records."[8] In 1631 Mervyn Tuchet, 2nd Earl of Castlehaven, was beheaded because of his rank. Numerous prosecutions that resulted in a sentence of hanging are recorded in the 18th and early 19th centuries.[9]
Even if the charge of sodomy was reduced for lack of evidence to a charge of attempted buggery, the penalty was severe: imprisonment and some time on the pillory. "The lesser punishment—to be stood in the pillory—was by no means a lenient one, for the victims often had to fear for their lives at the hands of an enraged multitude armed with brickbats as well as filth and curses ... the victims in the pillory, male or female, found themselves at the centre of an orgy of brutality and mass hysteria, especially if the victim were a molly."[10][11]
Periodicals of the time sometimes casually named known sodomites, and at one point even suggested that sodomy was increasingly popular. This does not imply that sodomites necessarily lived in security.
In Rex v Samuel Jacobs (1817), it was concluded that fellatio between an adult man and an underage boy was not punishable under this Act.[12] The courts had previously established, in Rex v Richard Wiseman in 1716, that heterosexual sodomy was considered buggery under the meaning of the 1533 Act.[13]
In light of R v Jacobs, fellatio thus remained legal until the passage of Labouchere Amendment in 1885, which added the charge of gross indecency to the traditional term of sodomy.
The last two Englishmen who were hanged for sodomy were executed in 1835, when James Pratt and John Smith died in front of the Newgate Prison in London on 27 November.[14][15]
The Act was repealed by section 1 of the Offences against the Person Act 1828 (9 Geo.4 c.31) and by section 125 of the Criminal Law (India) Act 1828 (c.74). It was replaced by section 15 of the Offences against the Person Act 1828, and section 63 of the Criminal Law (India) Act 1828, which provided that buggery would continue to be a capital offence. The new Act expressly specified that conviction of buggery no longer required proof of completion ("emission of seed") and evidence of penetration was sufficient for conviction.[16]
Buggery remained a capital offence in England and Wales until the enactment of the Offences against the Person Act 1861.
The United Kingdom Parliament repealed buggery laws for England and Wales in 1967 (in so far as they related to consensual homosexual acts in private), ten years after the Wolfenden report. Legal statutes in many former colonies have retained them, such as in the Anglophone Caribbean.
^ This is only a conventional short title for this Act.
^ R v Jacobs (1817) Russ & Ry 331 confirmed that buggery related only to intercourse per anum by a man with a man or woman, or intercourse per anum or per vaginam by either a man or a woman with an animal. Other forms of "unnatural intercourse" may amount to indecent assault or gross indecency, but do not constitute buggery (see generally: Smith & Hogan, Criminal Law (10th ed.) ISBN 0-406-94801-1)
^ Raithby, John, ed. (1811). The Statutes at Large, of England and Great Britain. 3. London: Eyre and Strahan. p. 145. hdl:2027/njp.32101075729275.
^ a b Hamish (25 July 2007). "Reflections on BNA, part 6: British Law". The Drummer's Revenge. Retrieved 3 February 2010.
^ Johnson, Paul; Vanderbeck, Robert (2014), Law, Religion and Homosexuality, Routledge, p. 33, ISBN 9781135055189
^ Crompton, Louis (July 2009). Homosexuality and Civilization. Harvard University Press. pp. [ 196, 363]. ISBN 978-0-674-03006-0.
^ a b "Walter Hungerford and the 'Buggery Act' | English Heritage". www.english-heritage.org.uk. Retrieved 20 March 2017.
^ Norton, Rictor. "5 The Medieval Basis of Modern Law". A History of Homophobia. Gay History and Literature.
^ Norton, Rictor. "Homosexuality in Eighteenth-Century England". Gay History and Literature.
^ Norton, Rictor. "Popular Rage (Homophobia)". Homosexuality in Eighteenth-Century England. Gay History and Literature.
^ Gilbert, Creighton (1995). Caravaggio and his two cardinals. Pennsylvania: Pennsylvania State University Press. p. 221. ISBN 978-0-271-01312-1.
^ Sir William Oldnall Russell (1825). Crown Cases Reserved for Consideration: And Decided by the Twelve Judges of England, from the Year 1799 to the Year 1824. p. 331.
^ "Another Kind of Love "d0e1110"". publishing.cdlib.org.
^ "A history of London's Newgate prison". www.capitalpunishmentuk.org.
^ Alternative date 8 April 1835, See "Archived copy". Archived from the original on 20 November 2012. Retrieved 1 August 2012.CS1 maint: archived copy as title (link) seen 2012
^ 9 Geo.4 c.31, section XVIII
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A consultation document suggests people trying the act may not really want to do it
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The warning was issued in a consultation document
The Government is concerned that increasing numbers of young people are trying anal sex, according to an official consultation.
Officials at the Department for Culture, Media and Sport are baffled at the increased popularity of the act despite apparent “research” suggesting it is not pleasurable for women.
The warning is included in a consultation document issued by the Department about plans to further restrict access to online pornography. It argues that young people are trying anal sex as a result of having viewed pornography, and that this is an unwelcome development.
“Many people worry that young people will come to expect their real life sexual experiences to mirror what they or their peers see in pornography, which often features ambiguous depictions of consent, submissive female stereotypes and unrealistic scenarios,” the consultation reads.
“There is also a question about the effect of pornography on ‘unwanted sex’ – for instance more young people are engaging in anal intercourse than ever before despite research which suggests that it is often not seen as a pleasurable activity for young women.
“While the increase in anal sex cannot be attributed directly to pornography consumption, it does feature in a large percentage of mainstream pornography (for example, one content analysis found it featured in 56% of sex scenes).”
The consultation suggests that restricting access to pornography might reduce the numbers of people trying anal sex.
Officials supported their view by citing a 2014 British Medical Journal paper from the London School of Hygiene and Tropical Medicine which collated interviews about the practice with 130 16-18 year olds.
That study actually however concluded that “accounts revealed a complex context [of people trying anal sex] with availability of pornography being only one element”.
The Government’s negative view of anal sex recalls opposition to the practice by Margaret Thatcher, who in 1986 watered down an anti-AIDS campaign so as not to acknowledge the act's existence.
According to Cabinet minutes released at the New Year Mrs Thatcher sent a memo asking for a section on “risky sex” to be scrubbed from the campaign because “it could do immense harm if young teenagers were to read it”.
When the newspaper advert warning of the dangers of AIDS went ahead, she said: “I remain against certain parts of this advertisement. Adverts where every young person will read and learn of practices they never knew about will do harm.”
Homosexual anal sex was criminalised under law as “buggery” in England and Wales until 1967.
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