Senthorum Raj reviews the animating principles informing the criminalization of otherwise ethically justifiable sexual behaviour:
We tend to assume that law is objective and disembodied, but the story of the decriminalisation of homosexuality in the UK shows that, like the people who create it, it is in fact an emotional creature, animated by visceral human feelings — and as far as sexuality is concerned, the chief emotion at work is often disgust.
You don’t have to look very hard to see how much it was disgust, not a concern for morality or justice, that shaped the laws governing homosexual activity. In fact, in the UK, homosexuality was long deemed so perverse that to even speak of it in public would stain your character.
Criminal punishments for homosexual activity, which included the death penalty, thrived on disgust for centuries. Introduced by Henry VIII in 1533, the Buggery Act 1533 criminalised the “abominable vice” of anal sex between men. In his commentaries on the common law of England published in 1765, jurist William Blackstone described buggery as an “offence of so dark a nature” that “the very mention of [it] is a disgrace to human nature”. Colonial statutes (which are still in effect in a number of Commonwealth countries today) referred to sex between men as an “act against the order of nature”.
In 1895, writer Oscar Wilde was put on trial for “gross indecency”, a statutory offence introduced in 1885 to punish individuals who engaged in same-sex relationships, without having to prove they had anal sex. In sentencing Wilde for gross indecency, Justice Willsnoted:
The crime of which you have been convicted is so bad that one has to put stern restraint upon one’s self to prevent one’s self from describing, in language which I would rather not use, the sentiments which must rise in the breast of every man of honour who has heard the details of these two horrible trials.
Disgust, again, was the animating principle. In writing about the Wilde trial, philosopher and legal scholar Martha Nussbaum observes that disgust was not simply an excess or unintended consequence of prosecuting sexual offences; it was central to it. Criminal penalties were contingent on the extent to which the person, and the activity they engaged in, could elicit public disgust.
The observant might note that this remains salient today.