Sex in history, by Gordan Rattray Taylor

Appendix I. The Present State of English Law

ENGLISH law, as it applies to sexual matters, reveals several inconsistencies and betrays many prejudices, the origin of many of which can be found in canon law. The following notes may serve to convey a general impression of the position, chiefly as it is expressed in statute law. But statute law is modified by case law, and a summary sufficiently accurate to satisfy a lawyer would call for a much longer treatment. (Scottish law, which differs in several respects, will not be discussed here. In the U.S. the law varies widely from one state to another.)

THE SEXUAL ACT: English law does not specifically prohibit the performance of the sexual act between two consenting adults, of opposite sexes but not married to one another, whether performed for gain or not. Yet the mediaeval belief that the sexual act is sinful in itself colours the law at many points. For instance, proceedings may be instituted against the keeper or landlord of a house, whether it be an hotel or a private house or flat, in which two or more pairs of unmarried persons have sexual relations, and this is so even when the house is the permanent place of residence of one or more of the parties. This has the odd effect of making it an offence to connive in the performance of an act which itself is legal.

The intention here, no doubt, is to prevent a situation arising which might be a cause of public scandal; and it is probably for the same reason that performance of the sexual act in a public place is normally regarded as illegal. And in general, the law is more concerned with public opinion than with matters of ethics.

For the Protection of individuals, the law prohibits rape, abduction, and the seduction of girls under sixteen, and of imbeciles, and provides that if a man seduces a married woman by the device of impersonating her husband, he shall be considered guilty of rape, for which the prescribed penalty is life imprisonment. On the other hand, it does not recognize rape as between a man and his wife, presumably because they are “one flesh“. It prohibits anal intercourse between persons of opposite (as well as those of the same) sex; also bestiality — as in mediaeval times, the animal is sometimes ordered to be destroyed also.

MARRIAGE: The law provides for both civil and church marriages, but requires publication of banns only in the latter case: the object for which banns were instituted has, of course, long vanished. There are special regulations for the marriage of certain dissident and non-Christian groups, such as Quakers and Jews.