As a term of art for homosexual acts, "gross indecencyi1 entered Engiish law through the Criminal Law Amendment Act of 1885. An amendment, drafted by Henry Labouchkre and retained as Section 11 of the Act, has the following language: "Any male person who, in public or private, commits, or is party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be guilty of a misdemeanor. . . ." Earlier legislation, culminating in the 1861 Offenses Against the Person Act, directed against anal activity (buggery), required proof of penetration (down to 1828 the law was interpreted to require proof of penetration and emission). Ambitiously, the 1885 legislation enlarged the prohibition to include any homosexual contact whatsoever. As Havelock Ellis pointed out in 1897, it was illogical to include private acts, sinceno one would be present to record the indecency or be outraged by it. At all events, Oscar Wilde was convicted ten years later under the 1885 Act inacase that sent shockwaves throughout the Western world.
"Indecency" has a broad connotation, suggesting anything held to be unseemly, offensive, or obscene. The 1861 Act had mentioned "indecent assault" against both females and males. Apparently wishing to leave no uncertainty that consensual acts, as well as coercive ones, fell within the scope of the prohibition, Labouchkre seems to have deleted the noun "assault," adding the adjective i'grossll by way of compensation. There is no crime of "petty indecency."
In 1921 a Scottish Conservative M.P. proposed to criminalize acts "of gross indecency between female persons." This legislation was not adopted, and in fact lesbian acts have never been against the law in the United Kingdom. The 1967 Criminal Offenses Act (England and Wales) removed private conduct between consenting adults from the scope of the criminal law, but left the expression "gross indecency" for public acts. If committed by members of the Armed Forces or Navy, even private acts remain a matter of gross indecency. It also remains illegal to "procure" an act of gross indecency; in a bizarre case, the director of a play, The Romans in Britain, was prosecuted in 1982 for a brief episode of simulated buggery.
Five New England states and Michigan imitated the British statute. As of 1988 Michigan still recognized "gross
indecencies between males" and "gross indecencies among females." Generally, however, the expression has little currency in American law and is unlikely to acquire much, as it would be vulnerable to attack under the "void for vagueness" principle.
See also Common Law.
Paul Crane Gays and the Law, London: Pluto Press, 1982; H. Montgomery Hyde, The Love That Dared Not Speak Its Name, Boston: Little, Brown, 1970.
William A. Percy