Putting right the wrong done to Alan Turing

Why there may be a better alternative to a “statutory pardon” for the Enigma code breaker, who was prosecuted over his homosexuality in 1952.

Many people are familiar with what happened to Alan Turing: the national hero and genius of the first order who was prosecuted in 1952 because of his homosexuality and “chemically castrated” as a sanction of the state. And following this conviction and punishment, he was to apparently kill himself two years later aged only 41. 

The immensity of his intellectual accomplishments and his crucial contribution to the war effort make the prosecution of Turing and its aftermath seem a particular tragedy.  Something very badly went wrong, and that wrong needs to be righted. Indeed, as Jack Goode, a colleague of Turing at Bletchley Park, said:

“It was a good thing the authorities hadn’t known Turing was a homosexual during the war, because if they had, they would have fired him…and we would have lost”.

But how can we right the wrong did to Alan Turing?  One way is to be clear about the actual wrong which was done to him, and the starting point for this would be to look closely at the law he was prosecuted under and the facts of his case.  And by looking at the wrong done to Turing it becomes stark that many others suffered the same wrong and that a pardon just for Turing will not address this.

 

The law against male homosexual intimacy

The offence for which Turing was prosecuted was under section 11 of the Criminal Law Amendment Act 1885:

"Any male person who, in public or private, commits, or is a party to the commission of, or procures, or attempts to procure the commission by any male person of, any act of gross indecency with an other male person, shall be guilty of a misdemeanour, and being convicted thereof, shall be liable at the discretion of the Court to be imprisoned for any term not exceeding two years, with or without hard labour.”

There are a few points to make about this offence. 

First, you will see the word homosexual is not mentioned, and nor is any synonym.  This is because the law did not prohibit homosexuality per se.  The offence was targeted not at what was thought, but at what was physically done: it was not male homosexuality which was to be punished but its intimate manifestation.  Any man who confessed to homosexual preferences or even to lust for another man would have been (or should have been) safe from arrest or prosecution.  And although there had been an offence of buggery since Tudor times, this 1885 offence would catch a wider range of sexual behaviour.

This distinction between homosexual feelings and actions may seem a subtle or unconvincing one; but in practical legal terms it was a significant matter.  Mere words were not enough for an arrest or prosecution, and neither was simple suspicion.  There had to be concrete evidence of physical intimacy; and if such evidence of intimate acts having taken place was not provided by confession (or by a spy or other witness), it would have to be inferred from other evidence beyond reasonable doubt.  It was because of this evidential requirement many careful and discreet homosexual men were able to avoid arrest and prosecution after 1885 – as long as the police never had compelling evidence of any acts of intimacy with other men, many homosexual men were usually safe from the criminal law.

Second, the intimacy prohibited by the offence had to be acts of “gross indecency”.  This was common law term and so it was not defined in the statute.  The idea was that it was up to the courts (and by extension the arresting officers) to apply that standard on a case by case basis.  To many modern minds, male homosexual acts are neither gross nor indecent (or if they are, it really is no business of anyone else).  But at the time – and until fairly recently – the judges and the police took any act of intimacy between homosexual men to be grossly indecent by definition.

Third, the offence could be committed both in public and in private.  This was a crucial legal point.  The common law offence of gross indecency, which already existed in 1885, needed the prosecution to prove that (a) the grossly indecent act took place in public and (b) it had also been seen by at least one person.  Because of these two evidential requirements there was substantial case law on what constituted a public place and who could constitute a witness.  The new offence got rid of such barriers to prosecution: now when the alleged gross indecency was between two men, it did not matter if it was not in public and was seen by no one.  The fact of physical intimacy was enough to make criminals of them both.

And fourth, it was an offence which applied only to men.  There has long been an urban myth that the reason why gross indecency between women was not also criminalized was because no one wanted to explain to Queen Victoria that such a thing as lesbianism existed. (A variant tale is that the queen refused to accept it existed and so she struck that out of the legislation before signing.)  There is no evidence for such a story.  However, in 1921 the House of Lords did debate extending the offence to female homosexuality but decided against it as a ban may encourage impressionable young women to try it and that it would also assist blackmailers (see the full remarkable debate here).

So section 11 was legislation intended to apply to all acts of sexual intimacy between men wherever they occurred.  But it was not a provision which parliament considered carefully: it was a late night amendment which was accepted on the nod and without any debate as to its merits.  It was on a casual basis that all physical sexual intimacy between men was criminalized for nearly a hundred years. 

In practice, if the police obtained sufficient evidence they would normally prosecute, and the courts would then usually convict.  In all there were an estimated 75,000 convictions under section 11 (and its successor offence in the Sexual Offences Act 1956).  One of these convictions was of Oscar Wilde, who was sentenced in 1895 to two years’ hard labour (the “severest sentence that the law allows” remarked the judge).   But, perhaps counter-intuitively, most of these prosecutions did not happen in the days of Victorian prudery, but in the two to three decades after 1931. 

One of these prosecutions was to be of Turing. 

 

The case of Alan Turing

Turing was not an especially reckless or indiscreet man.  But one Sunday morning in Wilmslow in February 1952 he made a dreadful mistake.

He had gone to the local police station to report a theft.  But in giving this information, Turing fabricated some details to conceal his homosexual relationship with Arnold Murray, who was an associate of the likely culprit. 

However, the police were not entirely convinced by Turing’s account.  And so they tested him with an old police trick, and Turing – the brilliant code-breaker and mathematician – fell for it.  They waited a couple of days and then simply asked Turing to repeat his story, but he could not remember the lie he had told.  “We have reason to believe your description is false,” one constable then said to Turing, “why are you lying?”

Turing realised he had been exposed in misleading the police, and he admitted not only that he had not told the truth but also that he was having a relationship with Murray.  And he did more than this.   Turing, in five hand-written pages, promptly provided a graphic narrative of his sexual relations with Murray.  The officers were astonished: with such admissions there was little need for them to investigate further - Turing gave them all that they needed for a successful prosecution.  It was, as they were later to say, “a lovely statement”.  Such was the detail that they were able to lay eight separate charges against Turing.  They were also able to arrest Murray, which they did at his workplace (thus losing him his job), and they prosecuted him too.

Turing’s initial response to the charges was to be defiant, and he intended to plead not guilty.  He could not see how there could be anything wrong about his intimacy with Murray.  Accordingly, at the committal hearing later that month, also in Wilmslow, he instructed his barrister to reserve his defence.  He wanted the option to contest the charges at trial.

The problem was that given his own full admissions to the police neither he nor Murray had any realistic defence to the charges.  The statement was enough to convict them both.  If he insisted on a not guilty plea and a trial, then it would be almost inevitable that there would be a guilty verdict.  Moreover Murray, incriminated by Turing’s statement, had decided to plead guilty.  Friends and lawyers pressed Turing to change his plea.  There was a real risk of imprisonment – though the punishment of hard labour which had been imposed on Wilde and thousands of others had fortunately been abolished by the Criminal Justice Act 1948.

And so in a matter-of-fact way Turing decided to change his plea to guilty and he prepared the ground for what this may mean.  He came out to his brother and mother, both of whom had been unaware of his homosexuality.  His academic colleagues made sure his job was safe, whatever the punishment of the court.  Turing now just wanted the trial over and done with, as quickly and quietly as possible, and he hoped to avoid imprisonment and to continue his work.

But here Turing faced a further problem.  There were a couple of features of the case which made a custodial sentence more likely than not.  First, Murray’s barrister would be contending that Turing’s culpability was worse than that of Murray.  Turing was 40, and Murray was 19; he was a senior academic, Murray was a printer who had met Turing in the street; Turing had even paid some money to Murray, though the purpose of the payment was not clear.  Indeed, Murray’s barrister was to tell the court that Murray was led astray by the older man and that had his client not met Turing “he would not have indulged in the practice”.  The second factor against him was the sheer detail of his own volunteered evidence: there was sufficient evidence for the police to press not just one charge but eight.  All this pointed to a prison sentence for Turing.  Murray might get a discharge (which he in fact did), but the same leniency would not be open realistically to Turing.

Everything therefore rested on the mitigation which Turing presented to the court.  Turing’s eminent character witnesses attested the importance of his academic work.  He was, one said, “a national asset”. Another explained to the court that Turing was “one of the most profound and original mathematical minds of his generation”. 

And then Turing’s barrister made the following plea, which was to prove consequential (emphasis added):

“He is entirely absorbed in his work, and it would be a loss if a man of his ability – which is no ordinary ability – were not able to carry on with it.  The public would lose the benefit of the research work he is doing.  There is treatment which could be given him. I ask you to think that the public interest would not be well served if this man is taken away from the very important work he is doing.”

Evidently the judge was impressed.  Turing would not have a sentence of imprisonment.  Instead the judge imposed a probation order (one step up from a discharge) on Turing for the minimum possible period of one year. 

The judge also adopted the suggestion of Turing’s own barrister that the defendant undergo “treatment”.  It was made a condition of the probation order that Turing “submit for treatment by a duly qualified medical practitioner at Manchester Royal Infirmary”.

It appears that the judge was (or thought he was) being as lenient as he could be given that a discharge was not a viable option given the alleged facts of the case before him.  And the proposal of “treatment” appears to have come from Turing’s barrister (presumably on Turing’s instruction).  By proposing the treatment, it would appear that the defence barrister had given the judge a way out of imprisoning a national asset.  

Of course, a choice between imprisonment (and the attendant disruption to his life and work) and treatment was not a real choice for Turing.  Imprisonment destroyed lives, then as now.  But Turing understood that the treatment would only have a temporary effect.  As he wrote to a friend:

“[…] I am both bound over for a year and obliged to take this organo-therapy for the same period.  It is supposed to reduce sexual urge whilst it goes on, but one is supposed to return to normal when it is over. I hope they’re right. […]”

The treatment consisted initially of hormone tablets and then later a hormone implant in his thigh (which Turing secretly extracted).  The intention was to supress Turing’s libido.  Though such medication is now rightly seen as a monstrous sanction of the court, it raised no concern or controversy at the time.  Indeed, there was an apparent scientific consensus as to its efficacy.  As Turing’s biographer Andrew Hodge points out, this was a period where many well-meaning people saw chemicals as solutions to the problems of social control.

Turing died two years after the trial, and one year after the end of his probation and his hormone treatment.  The cause of death was cyanide poisoning and the coroner recorded a verdict of suicide.  But as there was no suicide note, and as there is another plausible explanation for the cyanide poisoning, the actual cause of death is not clear.  There is no direct evidence that the death was connected to either the trial or the treatment.  And as the Samaritans rightly point out, one should never look for just one cause of someone taking their own life.

But in a way it does not matter if Turing’s death was connected to the prosecution or the treatment.  What happened to him was vile on its own terms.  And he was not alone: there were an estimated 75,000 convictions for this supposed crime.  Many lives were devastated.  Men were routinely sentenced to hard labour of up to two years before 1948, and to terms of imprisonment after hard labour was abolished.  And all because of an act they had done in private with a consenting male partner which the police somehow came to know about. 

Turing’s case was an outrage, and so were the thousands of others.

 

What a pardon for Alan Turing means, and an alternative

Today the wrong done to Alan Turing rankles.  What we now know about his war work and his influence on modern computing makes the prosecution and treatment a national scandal and an international disgrace.

Less clear is what can be done about it.  There has already been an apology by the then Prime Minister Gordon Brown.  The government has ruled out a royal pardon, as Turing was convicted under the law as it was.  The current proposal for a “statutory pardon” is in part an attempt to do something – anything - which further corrects the wrong.

But what is a pardon?  And is it the right thing to do in this case?

Pardons are curious things from a legal perspective.  They are intended to aid the living rather than the dead.  This is because a pardon does not usually affect the validity of a conviction (the conviction will still stand) but it will alleviate its practical consequences: a defendant is normally relieved of any punishment. 

In recent years, however, there has been a move to posthumous pardons.  Derek Bentley received a royal pardon in 1993, some forty years after he was hanged for a murder he did not commit (but the murder conviction was not quashed).  And in 2006, the 306 men who were executed for desertion and similar offence in world war one were granted what was called a statutory pardon; but again, the pardon only went to their punishments.  Those soldiers who had convicted of exactly the same offences but received lesser sentences had no pardon.

The problem with posthumous pardons is that they are practically - and legally - meaningless.  It is a gesture.  Indeed, the statutory pardon for the 306 soldiers expressly stated that the pardon did not affect either the conviction or even the validity of the sentence given.  The argument was that it was wrong to impugn the official decisions which led to the executions.  All that the Ministry of Defence did was, as an administrative act, to put a copy of the pardon on each executed soldier’s file.

The proposed statutory pardon for Alan Turing is modelled on the statutory pardon for the executed deserters.  The pardon does not affect either the conviction or the sentence.

(From a pedantic point of view, the  probation order imposed on Turing was not a "sentence” under section 3 of the Criminal Justice Act 1948 but an alternative to a sentence.  Also under section 12 of the 1948 Act, a conviction such as Turing's which resulted in a probation order was to be legally disregarded.  Therefore Turing’s conviction has already been disregarded as a matter of law.  So not only is there no defendant alive to take the benefit of the pardon, there is in Turing’s case arguably no conviction or sentence even capable technically of being the subject of a pardon.)

The promoters of the statutory pardon know that a statutory pardon is a gesture.  The argument is that some gestures are important even if they are practically and legally meaningless; a Bill passed by both Houses of Parliament would be a fine act of atonement. 

But there is a perhaps better and more rational solution.

A recent statute - the Protection of Freedoms Act 2012 - provides a scheme where those who had been convicted of the section 11 offence (and similar offences) can apply for their entire criminal records to be removed if the facts of the case would no longer count as a crime.  It would be as if the offence had not been committed at all.  These are not pardons – they go much further: the 2012 scheme removes the taint of criminality altogether, and with no fussing about not affecting the conviction or the sentence.

But the 2012 scheme is only for those still alive.  However, there is no good reason why it cannot be applied retrospectively.  It would have the merit of consistency.  And if the concern is that some convicted under section 11 (for example those being grossly indecent in a public place) would be wrongly exonerated, then perhaps a similar requirement for an application could be put in place.

Turing’s conviction was just one of about 75,000 under a vindictive law.  But here is no logical reason why his should be regarded as a unique case.  The actual wrong done to Turing was also one done to many thousands of men, and so any righting of that wrong must apply to those men too.

If Alan Turing is to be pardoned then so should all men convicted under section 11 if the facts of their cases would not be a crime today.  But a better posthumous gesture would be to simply extend the 2012 scheme to all those who are now dead.  Removing the criminal records completely of all those prosecuted who would not be prosecuted today on the same facts would be a better legislative gesture than a single statutory pardon, if there is to be a legislative gesture at all.

 

David Allen Green is legal correspondent of the New Statesman. 

The above post is indebted to the excellent Alan Turing: the Enigma by Andrew Hodges, from which most of the historic details of Turing’s prosecution were culled.  The statistics of convictions are from Lord Sharkey's recent speech to the House of Lords.

Alan Turing's statue. Flickr/ell-r-brown, licensed under Creative Commons

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

Flickr: M.o.B 68 / New Statesman
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“I begged him to come home”: Breaking the taboo around texting the dead

Many people text dead loved ones to cope with their grief – but trouble arises when they get an unexpected reply. 

A month after Haley Silvestri’s dad died from a heart attack, she texted him begging him to come home. In the middle of the night Silvestri’s 14-year-old sister had found their father, with his lips and mouth blue, lying on the kitchen floor. “There was nothing there anymore, just a dead body,” Silvestri says. “My father had his first heart attack months before and seemed to be doing OK. Then, this happened.”

In the very first episode of CSI Miami’s seventh season, the protagonist – Horatio Caine – fakes his death. For the first 15 minutes of the episode, the viewer believes the character is truly dead, as the camera lingers on Horatio’s body face down on the tarmac.

Silvestri and her father used to enjoy watching the show together. After he had passed and she realised she would never see her “best friend” again, she picked up her phone. “I texted my dad begging him to come home,” she says. “I begged my dad to please be ‘pulling a Horatio’.”

"My heart was broken and I was bawling as I texted her over and over" 

In texting her father after he had died, Silvestri is by no means unusual. No official figures exist for the number of people who use technology to message their deceased loved ones, but Sara Lindsay, a professional counsellor, clinical supervisor, and trainer, says it is “more common than we think”.

“I see it as a modern and contemporary part of the grieving process,” she says. “I think in a way it's very similar to visiting a graveside, in that the bereaved are reaching out, particularly in the early days, because it takes a long time for people to process the reality that this person has now gone.”

Karlie Jensen, 18, texted her friend immediately after she found out she had died in a car accident. “I texted her as soon as I woke up to the news from my mom that she had passed. My heart was broken and I was bawling as I texted her over and over waiting for a text saying it wasn't her, that my mom didn't know all the facts, and maybe she was just hurt.” Jensen also called her friend and begged her to respond. “I did it because I couldn't let go and couldn't accept she was gone from my life forever,” she says. Karlie continued to text her friend while also calling her voicemail in order to hear the sound of her speaking again. 

Karlie (right) and her friend

After her first text to her deceased father, Silversti also began texting him once a week. She fell into depression, and on her worst days messaged the number. “I think it helped initially because it felt like I was personally writing a note to him, that I knew he only was gonna see,” she says. “I did it because it was my attempt at pretending he was still here and could text me back.”

Lindsay, who has over a decade’s experience of bereavement counselling, emphasises that this behaviour is in no way unhealthy. “I think on the whole it's a very healthy part of grieving, particularly in the first year where the bereaved faces agonising days without their loved ones,” she says. “There is just so much loss and change in their life that’s out of their control, I see this aspect of texting as a small way of being able to reach out and alleviate that pain. That person is suddenly now not there but how they feel about that person hasn't changed.”

"I was going through my phone and I saw his number – I wanted to delete it, but I hesitated I thought maybe I could send a text"

Despite being normal, however, using technology to talk to the dead is a behaviour we rarely – if ever – hear anything about. If the words “texting the dead” make it into the media, they are usually followed by a far more sensationalist “and then they text back!!!!”. Yet although messaging the deceased is popularly seen as the stuff of horror movies and trashy headlines, in reality it is simply a new, modern way to grieve.

Via Mirror.co.uk

“The first time I texted him I was on my bus on the way to school,” says now-20-year-old Dylan Campbell about his cousin Josh, who passed away from leukaemia. “I didn't have many friends so I had no one to talk to. I was going through my phone and I saw his number – I wanted to delete it, but I hesitated I thought maybe I could send a text and someone would reply or I would get something out of it.”

Campbell continued to send his cousin texts for a few weeks, “kind of like a diary”. He says he did so because he regretted not seeing Josh more up until his death, and “had a lot of things to say” that he’d never had the chance to. Linsday says texting in this way is a very healthy way of completing unfinished business. “There might have been something they've never said to their loved one that they want to be able to say and texting is a very normal place to do that.”

"Begging for a dead person to reply to you hurts since you won't ever get what you want in return"

Nonetheless, Lindsay notes that texting the dead can become unhealthy if grief becomes “stuck”, and the texting replaces normal communication or becomes a long term compulsion. Unlike Silvestri and Campbell, Jensen continued to text her friend in the hopes she would text back. She admits now that she was in denial about her death. “Begging for a dead person to reply to you hurts since you won't ever get what you want in return” she says. “I don't know if it helped trying to contact her or hurt worse because I knew I'd never get a reply. I wanted a reply.”

Quite frequently, however, this reply does come. After a few months – but sometimes in as little as 30 days – phone companies will reallocate a deceased person’s phone number. If someone is texting this number to “talk” to their dead loved one, this can be difficult for everyone involved.

“This story doesn't have a happy ending,” says Campbell. “After a few months someone from that number called me and yelled at me to stop bothering them – it was really heart breaking.” When Silvestri texted her father to wish him a happy birthday (“Saying I hoped he was having a great party up in heaven”) someone replied telling her to never text the number again. “I was pissed off,” she says. “Just block my number if it was that serious. This was a form of therapy I needed and it got taken away because someone couldn’t understand my hurt.”

Indeed, behind the sensationalist tabloid headlines of "texting back" is a more mundane - and cruel - reality of pranksters pretending to be the dead relatives come back to life.

"Visiting a grave is a clear recognition that the person visited does not exist in the normal day-to-day state of life, whereas texting allows for a suspension of that reality"

Silvestri, Jensen, and Campbell have never spoken to anyone else about the fact they texted their dead loved ones. Lindsay says that a fear of seeming “mad” combined with cultural phenomena – like the British stiff upper lip – might make people reluctant to speak about it. There is also a stigma around the way much of our modern technology is used in daily life, let alone in death.

This stigma often arises because of the newness of technology, but Christopher Moreman, a philosophy professor and expert on death and dying, emphasises that texting the dead is simply a modern iteration of many historical grieving practices – such as writing letters to the dead or talking to them at their graves. “I don't think the process of grieving is much changed, even if new modes of grieving come about due to new technologies,” he says. In fact, if anything, the differences between old and new ways of grieving can be positive.

“One important difference is in the sense of proximity,” explains Moreman. “I can text a loved one from anywhere in the world, but I can only visit their grave in one specific location. In another way, texting has the same structure whether I am texting someone who is alive or dead, so a sense of proximity also exists in the experience itself.

“Visiting a grave is a clear recognition that the person visited does not exist in the normal day-to-day state of life, whereas texting allows for a suspension of that reality. Some people may complain that new technologies allow us to ignore the reality of death, but there isn't any evidence that one way of grieving is more or less healthy than another.”

Amelia Tait is a technology and digital culture writer at the New Statesman.

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