HISTORIOGRAPHY

In recent decades, the subject of sexuality and sexual practices in twentieth-century Scotland has become the focus of increasing, if somewhat disparate, research by historians and social scientists. Several, sometimes overlapping, areas of investigation may be discerned. Using quantitative data analysis of census and civil registration records, historical demographers have identified trends and regional variations in nuptiality, fertility and illegitimacy rates and their implications for interpreting shifts in sexual behaviour and reproductive strategies. Meanwhile, using more qualitative evidence derived from memoirs and oral history, some sociologists and cultural historians have explored the impact of shifts in social norms and economic circumstances on the nature of intimacy in Scottish society and patterns of courtship, cohabitation and premarital sexual relations Other historians, sometimes from a feminist perspective, have explored the management of sexuality in the young as part of the gendered disciplinary framework of early twentieth-century Scottish society. In addition, again using oral history testimony, recent research has focused on aspects of social change that influenced the acquisition of sexual (pre-eminently contraceptive) knowledge and opportunities for sexual initiation, and that served to shape sexual identities. Finally, a strand of investigation, heavily reliant on the files of Scottish departments of state, has addressed the policy-making process with respect to a range of issues relating to sexual offences, reproduction, sexual health, sex education, and censor-ship in the period after 1950, designed to map the role of Scottish governance in these often contentious and contested areas of civil society.

With few exceptions, however, partly because of the paucity of accessible Sheriff Court records and a variety of restrictions and closures imposed on High Court and Crown Office papers, there has been relatively little use made of criminal prosecution and trial papers and newspaper law reports to provide an insight into sexual behaviours and ideologies after 1900 and how society and ‘the law in action’ responded when confronted by what were deemed illicit and/or unnatural practices.

AIMS

The central aim of this volume is to make good this omission by exploring eight areas of sexual or sex-related practices that featured in Scottish legal proceedings between 1900 and the early years of the new millennium: VD quackery, child sexual abuse, abortion, bestiality, brothel keeping, homosexual acts, the operation of sex shops and the wilful transmission of HIV.

INTRODUCTION

On 22 September 1973, Dora Noyce (seventy-three), described in the press as ‘the oldest girl in the oldest profession’, was fined the considerable sum of £250 in Edinburgh Sheriff Court under section 13 of the Criminal Law Amendment Act 1885, for keeping a brothel at 17 Danube Street. She admitted twenty-eight previous convictions, dating back to 1934. Over the years, after ‘bouts of police surveillance’, Dora Noyce had been regularly fined for her activities and, at intervals, sentenced to periods of imprisonment. On this occasion, given that she had only recently completed a four-month prison sentence, the sheriff accepted the view of defence counsel that she was ‘incorrigible’ and ‘unrepentant’ and that a fine to render her activities ‘less profitable’ would be the most appropriate punishment and least burdensome to the taxpayer.

As was customary after her court appearances, Noyce, by then a great grandmother, conducted an impromptu press conference in Deacon Brodie's immediately after she had been discharged, ensuring that her business received widespread publicity. She remained undaunted by the prospect of further police raids on her establishment followed by further criminal convictions and ever-increasing fines. She told reporters, ‘in an impeccable Edinburgh voice’, that she had ‘been intermittently in the business for thirty years’ and had ‘no intention of closing down’. She was proud of building up an establishment of ‘national and international repute’. According to Noyce, she provided ‘a service in a clean and honest house’ that was ‘really rather a refined affair’. She likened her ‘house of leisure and pleasure’ − she hated the term ‘brothel’ − to the YMCA, ‘except for one little item’, arguing that it provided a ‘discreet’ and ‘homely’, rather than predatory, environment in a city that was starved of entertainment after 10 p.m.

Dora Noyce and her Danube Street brothel played a central role in the sexual folklore of late twentieth-century Scotland. This chapter seeks to explore the true story behind her career as a madam, the operation of the brothel, and the nature of the social and legal response to her enterprise in the post-war years.

INTRODUCTION

On several occasions in November 1914, Alexander Ashwood, a carting contractor with premises in Park Street, Motherwell, discovered that the padlock on his stable door had been forced and that a barrel had been placed behind the mare that was housed there. He reported these incidents to the police but, before they could investigate, he witnessed Owen Gunnery, an unmarried labourer who lodged in an adjoining house, standing at the rear of the mare ‘with his trousers unbuttoned and his member inserted into the mare's parts’. According to Ashwood, the mare's tail was up and she was discharging as if she was being served. A struggle ensued and Gunnery escaped but, when he was later apprehended at his lodgings, the police noticed discharge on his trousers and shirt.

Meanwhile, the police had collected forensic evidence from the scene of the crime including a sample of the hairs and discharge from the mare's hindquarters as well as precise measurements of the height of the barrel and the animal's private parts. The evidence was duly examined by Dr Joseph Hume Patterson, Bacteriologist for the County of Lanark, along with the clothes worn by the accused. On Gunnery's shirt Patterson found coarse hairs that matched those of the mare, fragments of hay and particles of ‘foreign faeces’. He also found matching hairs on Gunnery's trousers and drawers along with ‘recent seminal fluid’ although he could not detect any spermatozoa from specimens taken from the mare. Despite having admitted to the police that he had had ‘connection’ with the mare on three separate occasions, blaming his behaviour on drink, Gunnery initially pleaded not guilty at Hamilton Sheriff Court to a charge of bestiality. However, when the case was remitted to the High Court in Glasgow in February 1915, he changed his plea to guilty and was sentenced to six months imprisonment.

Some fifteen years later, on 3 February 1929, two police constables on patrol in New Cumnock, Ayrshire, entered the steading of Broadfoot Farm and noticed the reflection of a flickering light on the skylight window of the byre.

THE ANN BOLEYN SEX SUPERMARKET

Having made test purchases earlier in the day, at around 5.30 p.m. on 10 May 1971, armed with an arrest warrant, police officers from the Maryhill Division of Glasgow entered a shop called Anne Boleyn at St George's Cross in the district of Woodside, the first sex shop to be opened in Scotland. Chief Inspector Connor led the raid accompanied by four other officers. They took the names of the ten customers already on the premises, who included four girls aged between sixteen and eighteen, and removed, in six large polythene sacks, all the goods considered to be obscene, amounting to some £800 to £900 worth of sex toys and aids. The owner, John Cameron, and the manager, John Irvine, were charged with selling obscene items in contravention of section 162 of the Glasgow Corporation (General Powers) Order Confirmation Act 1960, and a report sent to the Procurator Fiscal. Though the shop was supposed to be open until 10 p.m., it was closed after the police had departed. However, the takings for the first day of business were in excess of £130 and, in the early afternoon, the shop had been so busy that, for a time, no more customers could be admitted.

The opening of Scotland's first sex shop produced a wave of moral outrage from local civic and church leaders, widely reported and supported in the media. A group of Glasgow councillors led by Mary Goldie, a former councillor for Woodside, organised a petition to the Secretary of State for Scotland of nearly 7,000 signatures, protesting at the likely impact of the sex shop on the locality: in particular, its potential to ‘demoralise and corrupt’ children and to act as a magnet for ‘undesirable elements’. The petition called upon the government either to legislate for the closure of such shops or to ensure that they were closely regulated under licence. Meanwhile, along with similar representations to the Scottish Office, the Glasgow Presbytery of the Church of Scotland and the Glasgow Standing Conference of Youth Organisations organised a prayer meeting and protest march of over 200 young people [see Figure 8.1] to press for the closure of the ‘sex supermarket’ and a ban on any future enterprises that threatened the moral health and integrity of the community.

THE CHARGE

In November 1919, self-styled ‘Professor’ Abraham Eastburn appeared before Glasgow Sheriff Court charged with contravening the Venereal Disease Act 1917 in that, ‘not being a qualified practitioner’, he had treated Richard Vincent Copley, a merchant seaman, for VD. According to Copley, he had contracted VD from a ‘prostitute’ in Montreal in 1918 and developed a ‘pain in the penis’ on the voyage home. On arriving in Glasgow in October 1918, he had sought treatment. Near Central Station he had been handed a handbill advertising Eastburn's practice and had gone to his premises in Berkeley Terrace. This appeared to be a ‘good, respectable establishment’ surrounded by other medical practices, and he assumed from the handbill and the location of the premises that Eastburn was a qualified doctor. He was duly ushered in by a caretaker and left in a waiting room that contained a book by Eastburn entitled The Citadel of Life and How to Guard It. It recounted the story of a man who had ‘let his venereal trouble go very far’. Despite complications, Eastburn had succeeded in curing him and the patient was now the proud father of a healthy boy.

Copley was then taken to the consulting room, where he was required to put down one guinea as a fee for the examination. Eastburn took a urine sample and then put something in it that ‘caused a feathery appearance’. He told Copley that he was suffering from ‘hard chancre’ and from ‘Nervousness’ and that ‘[his] nature was passing from [him] into [his] urine’. Eastburn then offered to put him through a six-months’ course of treatment for syphilis for £22 adding that, as soon as the sore was better, he would put him on a ‘combined course for Nervousness for a further £34’ lasting eight to ten months which he would allow Copley to pay by instalments. On his next visit, he was given a bottle with ‘greenish tablets’ together with a ‘small bottle of yellowish liquid’ and a ‘small camel's hair brush’. The tablets were to be taken before the three principal meals of the day and the liquid painted on the venereal sore night and morning.

The most notable contrast between the early and late twentieth-century studies in this volume is the degree of exposure of ‘illicit and unnatural’ sexual practices in the press. As the early chapters illustrate, except for cases involving prominent local personalities, such as the well-known VD quack, ‘Professor’ Abraham Eastburn, or the abortionist, Professor George Bell Todd, there was very little newspaper coverage of trial proceedings in the period 1900−30. Indeed, as late as 1950, this silence which, as Foucault has observed, constitutes a powerful discursive practice, continued to prevail in the Scottish press. Law reports continued to excise explicit details of offences, such as the sexual practices performed or depicted in film and literature. In contrast, although the social historian of sexuality is severely restricted in access to late twentieth-century Crown Office and High Court records, newspaper coverage in part compensates for this. Details of cases involving sexual offences were fully reported, often with sensational headlines and explicit discussion of intimate sexual practices and preferences. Indeed, in some instances, as with the madam, Dora Noyce, and the sex-shop owner, John Cameron, sexual entrepreneurs exploited this media coverage to their own advantage. Furthermore, as in the cases of brothel-keeping, sex shops and the wilful transmission of HIV, detailed exposure of court proceedings in the press not only reinforced the moral panic that had initiated legal action in the first place but served to strengthen the call for additional measures to regulate and/or penalise such practices.

At the same time, there are significant areas of continuity. A number of important aspects of the relationship between the law, sex and society recur throughout the volume. One outstanding feature of the case studies is the degree to which the legal process, far from being autonomous, was very much a social construct. In many instances, the law both reflected and reinforced contemporary moral concerns that occupied public and professional debate. For example, the prosecution of ‘Professor’ Eastburn was a product of the moral panic surrounding VD during and immediately after World War I, and of lobbying by the social hygiene and social purity movements.

AN HISTORICAL PERSPECTIVE: THE LAW AND THE TRANSMISSION OF VENEREAL DISEASE IN SCOTLAND, 1900−83

On 13 February 2001, Stephen Kelly, thirty-three, went on trial at the High Court in Glasgow charged with ‘culpable and reckless’ conduct in having had sexual intercourse with his girlfriend, Anne Craig, thirty-four and a mother of three, at various addresses in King's Park and Ruchazie, Glasgow, between 1 January 1994 and 28 March 1994, while ‘knowing or believing’ he was infected with HIV, ‘whereby she became infected with the virus to her permanent impairment, to the danger of her health and to the danger of her life’. Though there was no written judgment issued in the case of Stephen Kelly, legal commentators viewed his trial as ‘something of a landmark’ in the criminal law and as the ‘first case of its kind’ in the United Kingdom. The case raised a range of key issues relating to confidentiality, disclosure, harm, risk and consent. In particular, it implied that the transmission of HIV might be regarded as a criminal injury, that non-disclosure of one's HIV serostatus might outweigh or ‘vitiate’ consent to sexual intercourse on the part of the appellant, and that liability did not necessarily depend on whether or not the disease was actually transmitted. Nonetheless, arguably his prosecution can equally be viewed as but the latest in a long line of attempts to bring the Scottish legal system to bear on the wilful or careless transmission of sexually transmitted diseases.

As we have seen in Chapter 3, there was clear precedent in Scots common law, dating back to the mid-nineteenth century, for the transmission of venereal disease (VD) to constitute an aggravated offence in cases of sexual offences against children. After 1910, perhaps in response to the moral panic that was sweeping Scottish cities over the issue of ‘child outrage’, law officers began to initiate an increasing number of prosecutions for this aggravated crime and a steady succession of such cases appeared before the Scottish High Courts up to the late 1930s.

In addition, during World War I, in response to heightened concerns over the impact of VD on the racial health and military efficiency of the nation, several attempts were made to penalise the careless transmission of the disease.

INTRODUCTION

In recent years, the social politics and the legal and medical discourses surrounding homosexuality in twentieth-century Britain have attracted increasing attention from historians and social scientists. Within the growing literature, the medical perception and treatment of homosexuality and homosexual offences have been viewed from a variety of standpoints. Many studies address the subject as a central aspect of the politics surrounding either the regulation of dangerous sexualities or the process of homosexual law reform. Others, often from a social constructionist viewpoint, have focused on the competing sexological and psychoanalytical discourses surrounding homosexuality and their impact upon public policy. Anecdotal evidence of medical attitudes and therapies is also scattered in the written and recorded testimonies of homosexuals. However, with the notable exception of the oral history undertaken by King, Smith and Bartlett,, and, more recently, by Meek, there has been little systematic primary research into the medical perception and treatment of male homosexuality that prevailed in the surgeries, clinics, courts and prisons of the land since World War II. This is especially true in relation to the Scottish experience, despite the distinctive traditions of law and medical practice north of the Border, as well as, arguably, Scotland's distinctive civic and sexual culture.

This chapter seeks to begin to make good this omission by documenting the medical perception and treatment of homosexual offenders in Scotland in the period 1950−80, and, in particular, the role that medical evidence played in the prosecution and sentencing of such offenders. Two main sources of evidence are explored. First, the verbal and written evidence of Scottish witnesses before the Wolfenden Committee on Prostitution and Homosexual Offences (1954−57) is examined in order to identify how homosexual offenders were treated, or allegedly treated, in the 1950s. The Wolfenden Committee was appointed in 1954 in response to a moral panic surrounding an apparent escalation in urban vice and with a remit to consider the law and practice relating to homosexual offences and prostitution. Secondly, a systematic analysis is undertaken of the medical reports on homosexual offenders submitted by psychiatrists and other doctors to Scottish High Court trials and appeals during the period 1950−80, and of their role in court proceedings.

THE ‘ABOMINABLE SUPERSTITION’

In January 1913, Robert James Corbett, a 37-year-old coalminer, was indicted in the High Court, Glasgow, on a charge of raping his nine-year-old niece and of the aggravated offence of communicating to her ‘gonorrhoea and other venereal disease with which his private parts were at the time affected’. In preparation for the trial, Crown Counsel specifically requested the Procurator Fiscal to question prosecution witnesses as to ‘whether there exists a common superstition … that intercourse with a virgin is a cure for venereal disease’. The enquiry elicited a revealing consensus among medical witnesses. Dr J. M. Thompson of Aidrie responded: ‘It is a common belief among the lower classes that connection with a virgin will cure a venereal disease.’ Similarly, Dr Elizabeth Smith, Physician to Glasgow Lock Hospital, considered it to be ‘a widespread idea … in all the lower classes that contact with an untouched virgin [would] cure the disease’. The evidence of Dr James Devon, HM Prison Surgeon, was even more sweeping:

There is, of course, in Britain and elsewhere in Europe and North America, a wealth of historical evidence for the earlier persistence of such a belief, both in medical folkloreand legal discourse, normally portrayed as a superstition of the ‘lower orders’, but also frequently associated with xenophobic, if not racial, stereotyping. In twentieth-century Scotland, a range of contemporary sources echoed the testimony of the High Court prosecution witnesses that belief in the curative powers of sexual congress with a virgin as a medical strategy remained potent within medical folklore.

INTRODUCTION

In contrast to other countries in the United Kingdom, Europe and North America, little is known about the abortion practices and prosecutions in early twentieth-century Scotland. Where the Scottish legal history sur-rounding the crime of procuring abortion has been explored, it has primarily been as a cursory preamble to a discussion of the 1967 Abortion Act and the implications for its subsequent interpretation of disparities between Scottish common law and English statute law. This detailed analysis of High Court cases seeks for the first time to reveal the process of abortion and its interface with the law in Scotland over the period 1900−30.

In drawing conclusions from these court proceedings, the social historian is subject to a range of limitations. First, it is uncertain how far the abortion narrative captured in the High Court records was representative of the many illegal abortions that were neither reported nor prosecuted, and that according to contemporary commentators resulted in the termination of as many as one in eight of all pregnancies and accounted for a similar proportion of maternal mortality. Secondly, the gender bias of the legal process has to be recognised. As Usborne has observed, women's testimonies in abortion cases were ‘often shaped by the specific questions asked by male interrogators who followed a set pattern of enquiry’ and by the recasting of their answers in legal and medical language. As a result, their experiences and perspectives could often be subordinated to the more limited (quintessentially male) agendas of policing and prosecution. Thirdly, the absence of trial transcripts limits the degree to which the competing legal, medical and popular narratives within courtroom proceedings can be examined. In addition, as with other offences, without access to the judge's closing remarks, it is difficult to capture the views of the judiciary on illegal abortion and the social ideology that informed them. Such constraints are compounded by the scarcity of substantive newspaper reports of High Court abortion cases. Apart from a very few trials where a prominent member of the community, such as a leading medical practitioner, was involved or an exhumation required, court proceedings were rarely reported in any detail.