Sexual Identities and Imaginary Crimes
Jeremy Bentham (1748-1832) was one of the greatest reformers of his age. Best remembered now as the chief exponent of the utilitarian axiom that the object of all government legislation must be “the greatest happiness of the greatest number”, Bentham wrote at length as a penetrating critic of judicial and political institutions, and as a pioneering advocate of prison reform. What is less well known, however, is that he also produced powerful and wide-ranging indictments of British attitudes toward homosexuality.
For centuries in Britain “sodomy” was the term used to describe sexual activity between two men, and “tribadism” to characterize sexual relations between two women. A lively sodomitical subculture first came into view in London in the late seventeenth century, and in the decades that followed a new vocabulary began to emerge, including “molly” for an effeminate man, and “lesbian” and “sapphist” in connection with female same-sex practice. By the end of the eighteenth century, what we would call a “homosexual” or “gay” identity had become available as a descriptive category, with recognizably modern behaviours, personalities, psychologies, and even stereotypes, though the word “homosexual” itself was not invented for another one hundred years, and the term “gay” to describe homosexual men was not in use until the opening decades of the twentieth century.
It was, of course, illegal. Homosexuality was a “crime against nature” in the words of Sir William Blackstone, the formidable eighteenth-century English jurist. The punishment for a convicted sodomite was the pillory and then death by public hanging. Immense crowds regularly turned out to witness – and cheer on – these state-orchestrated executions. In the opening two decades of the nineteenth century homophobia reached its height in Britain, inflamed in part by the sense that the country was in a titanic struggle with Napoleonic France, and that it needed its “men” to make war, not love. Few questioned the logic of these assumptions, or the right of the government to punish “perverted” behaviour. Fewer still wrote or spoke of their opposition.
Bentham was horrified. For decades he remembered the day he encountered a judge who had just sentenced two homosexual men to the gallows: “Delight and exultation glistened in his countenance”, Bentham wrote; “his looks called for applause and congratulations”. For Bentham, though, the impact of the story had the opposite effect to the one intended. Memories of the judge’s face galvanized his opposition to homophobic bigotry and the brutal English laws which enforced it, laws which brought “death to a human creature”, as well as “confusion, reproach, and anguish to an innocent family”, as he put it in 1814.
Homosexuality was – in Bentham’s memorable phrase – an “imaginary crime”, and guided by his “felicity calculus” he systematically demolished the claims of those who insisted that it was “unnatural”. Popular belief held that homosexuality debilitated men, that it led to a reduction in population, and that it violated the teachings of the Bible. None of this was true, as Bentham demonstrated by analyzing the evidence and sifting the logic. But he did not stop there. Whereas early nineteenth-century moral strictures were strongest against non-procreative sexual acts, which were widely held to contravene the laws of God and nature, Bentham went so far as to suggest that the acceptance of homosexuality would produce social benefits. Sexual intercourse within a traditional marriage created the threat of overpopulation. Sexual intercourse outside a marriage produced unwanted pregnancies, which in turn led many desperate women to seek the assistance of (usually highly unqualified) abortionists or to commit infanticide. Women who were tricked, bullied, or seduced into sex almost invariably lost their good name and all opportunity of a good marriage. The unluckiest of these were driven into prostitution and the shame, penury, and disease that typically attended it.
On the other hand, where was the harm in homosexuality? Many societies – past and present – had accepted it. The British men who engaged in it did so willingly. They were not injured by the practice. They did not bother others. Most tellingly, as they risked the death penalty if caught, many of them clearly set a very high value on the pleasure and companionship it brought them. For Bentham, the evidence was unambiguous. Any pleasure without painful consequences was in itself “pure good”, he maintained, and punishing “pure good…will be not only evil, but so much pure evil”. Punishing people for their sexual preference was “pure evil”.
Stripping away religious, legal, and historical constructions, Bentham saw plainly that the issue boiled down to a matter of taste. The fact that homosexuals were in the minority, and that their sexual practices were unpalatable to the majority, did not justify punishing them, any more than it did punishing people who ate oysters. Bentham conceded that he himself found homosexual practices “depraved”. But that made no difference to his arguments. When the British criminal justice system sentenced a man to die, “there should certainly be some better reason than mere dislike to his taste, let that dislike be ever so strong”. His conclusion: non-procreative sex was a harmless variant on human sexuality.
Bentham did not publish his essays on homosexuality, as he knew the fierce opprobrium they would unleash would bring him and his entire reform agenda into unappeasable disrepute. But he hoped that his groundbreaking exploration of the issue might eventually contribute to open-minded debate and widespread acceptance. “When I am dead mankind will be the better for it”, he reasoned. We all are. Governments, social institutions, and public opinion have been painfully slow to accept measures that Bentham described – more than two centuries ago – as legitimate and just, if not simply commonsensical. In his writings he put in place the central tenets of what we now regard as the modern gay rights movement, and his searching questions concerning desire and individual preference continue to shape our belated recognition of the complexities of sexual identity.