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.)

Roosh V via YouTube
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Men's rights activist Roosh V isn't just a sexist: he hates the modern world

Roosh and his community have seen that cultural change is chipping away at their privilege, and they're having none of it. 

When an activist known as Roosh V organised 165 “meet-ups” for like-minded men in 43 countries for this Saturday, the backlash was instantaneous. Signatures on petitions to keep Roosh away (even from countries where he wasn't planning to visit) stretched into the thousands. Police in many of the cities where meet-ups were planned said they would be keeping an eye on the events. Counter-protests were organised. And so today, Roosh announced that the meetings would be cancelled, since he could “no longer guarantee the safety or privacy of the men who want to attend”.

Roosh V is a prominent member of the section of the internet known as the "manosphere": he runs popular websites including Return of Kings and his own blog, and began his career by writing guide books about how to pick up women in countries from Poland (“What to do when a Polish guy inevitably tries to cockblock you”) to Colombia (including “an explanation into the Colombian prepago female (gold digger)").

Yet as demonstrated in a recent Reggie Yates documentary programme about men's rights activists, 36-year-old Roosh seems a lot more interested in his own theories about society than in handing out pick-up tips. "This is starting to sound like a conspiracy theory," Yates notes at one point. 

Roosh actually distanced himself from the Men's Rights community, or MRAs (though he arguably does fight for what he sees as men's rights) in 2009, when he argued that the group was filled with men incapable of taking action or improving their "game" with women. He would be more likely to self describe as a pick-up artist, or PUA, though his writing usually focusses on issues beyond simply "how to pick up women". 

While Roosh's views are objectionable and off-the-wall, they’re also subscribed to in full or in part by what may be millions of men around the world. So what does he believe? And how did this alternate worldview develop in the mind of a well-travelled, university-educated American son of immigrants?

Roosh isn't “pro-rape”, but he thinks rape is the fault of its victims

Many headlines this week called the proposed meetings "pro-rape", with evidence taken from a single post entitled “How to Stop Rape” which Roosh wrote in February 2015 (and which he recently claimed was satire). In it, he writes that since “women are not getting raped by violent offenders . . . they are getting raped by men they already know”, then rape (or as Roosh medievally puts it, “violent taking of a woman”) on private property should be made legal. This would, he argues, force women to “take responsibility” for their conduct on dates or while alone with men.

This appeals to a popular trope within the manosphere: that men will be "falsely" accused of rape under progressive rape laws that dictate that drunk women can't give consent, or accused by women who later regret the sexual encounter. The community is particularly aerated about Califiornia’s Yes Means Yes law, which rules that silence or lack of resistence doesn’t mean someone has consented (though consent can still be non-verbal).

Roosh's bizarre “legalise rape” argument is an apt symbol of his general appraoch: it’s a kind of devil’s advocacy, mixed with a form of upside-down rationality. He takes a common complaint among men’s groups and pushes it to an extreme conclusion, to the delight of his fans.

It’s also worth noting that some of Roosh’s pick-up tactics and advice could be seen to encourage rape – it’s probably fairer to call him “pro-rape” on these grounds, rather than his blogpost. In another trope common to the MRA community, he believes women say no in order to play “hard to get”, and that any self-respecting pick-up artist would override "no" up to a certain point. In a two-hour Skype interview with feminist artist Angela Washko, he argues:

“If a girl says no, that's no. But if she's still there and she allows you to touch her again and kiss her again that's not rape. That is not.”

In "When no means yes", a post from 2010, he gives the following "tip": "‘No’ when you try to take off her panties means . . . ‘Don’t give up now!’”

He knows his audience

In some of his writing, or while speaking to certain interviewers, Roosh can seem almost harmless – misguided, yes, but intellectually engaged and cautious about offending. 

In his interview with Washko, the pair manage to agree on the idea that it’s in the economic interests of the world’s richest to force all women to both work and have families, as wages can be lower: “The more people you force into the workforce, the cheaper labor is.”

The fact that women should have the choice to raise children instead of having a career is something both can agree on. 

But elsewhere, Roosh's concerned citizen mask slips. Earlier this week, he told members of his website forum to pool the details of journalists who write mean things about him with the ominous phrase: "We're going after the root of the problem". Elsewhere, he has said he won’t be interviewed by female journalists unless they give him a blowjob, and has stated that, “my default opinion of any girl I meet is worthless dirty whore until proven otherwise”.

This dual personality is something he shares with the comedian Dapper Laughs, who appeared on Newsnight to apologise for his rape joke-heavy comedy and explain that he was satiring men’s sexism, but now tells audiences that at the time he wanted to tell interviewer Emily Maitlis to “get your f***ing gash out!”  

He’s a savvy businessman

Which raises the question: how much of Roosh’s bluster is an act? Roosh must have learned by now that his more incendiary statements earn him attention, and even money through traffic to his sites. Dapper Laughs knows he needs to undercut his earnest, turtlenecked performance on Newsnight to keep earning as a comedian. 

Roosh told Reggie Yates he receives around a million combined hits to his websites every month, but this month, the figure must be far higher. A Vice journalist has pointed out that Roosh boasts about his online metrics on Twitter, and seems to be in competition with fellow controversy-chaser Milo Yiannopoulos. 

Which brings us to another question: did Roosh ever think the meet-ups would go ahead? Was he in fact expecting a media backlash, which would then allow him to show his followers that they are victimised and under attack, just as he's told them?

The whole thing does seem built as a vehicle for media attention: the covert meetings complete with a special code ("Do you know where I can find a pet shop?") which somehow found its way into every mainstream media story about the meetings – including, of course, this one.

Roosh advertised them on public sites, despite the fact that he probably could have contacted many supporters through more private forms of social media and regularly keeps the locations of his own talks a secret. His attempt to smear journalists is playing out in a private forum – strange that he couldn't use similar channels to arrange Saturday's meetings. 

He thinks the Western world is on the verge of a “cultural collapse”

Roosh claims that his science background taught him how, as he tells Washko, “to know what is a lie . . . when someone is full of shit I can tell because they’re just using what? Emotion.”

Travelling, meanwhile, has exposed him "to different ideas, belief systems than other people – I have more data and background in my mind that allows me to reach conclusions that are more accurate”.

This, in turn, prompts this surreal exchange:

Image: Angela Washko.

This defence – of science and worldliness, in the face of closed-minded emotion on the part of feminists – is important to Roosh precisely because his worldview actually seems to rely on an emotional, kneejerk hatred of change. 

Beyond the more typical MRA beliefs, Roosh has a comprehensive argument for how feminism and other liberal, progressive attitudes are about to ruin the modern world. In a document titled “Cultural collapse theory” he outlines a world where women earn “25 per cent more than women on average”, children are taught to “respect all religions but that of their ancestors”, and the reproductive rate falls because women have careers.

Here is the progression of a “cultural collapse”:

This, of course, is a dressed-up version of the familiar dystopia imagined by those who think liberal ideas and cultural change are driving us to disaster. In this context, Roosh’s ideas about women begin to look more like a refusal to get on board with the modern world: the way he sees women would have been very familiar a few centuries ago.

His hatred also extends to other social groups who have recently gained privilege, including transgender people (“If you are genetically a man, but you all of a sudden have this need to dress up like a girl . . . you should seek help"), gay people ("they're trying to encroach on what normal humanity is”), and stay-at-home fathers (“I mean if you ever see me pushing a stroller or changing a diaper, something is wrong. I must be on drugs"). 

The best proof of Roosh’s affection for the past is his opinion on where it all went wrong: I’m pretty sure giving women the right to vote was the start.”

In one particularly pathetic plea during his interview with Washko, he cries “You can’t even have sexy babes in games anymore!” 

…so any kind of cultural change is bad

When speaking to a group of London men in Reggie Yates’ documentary, Roosh emphasises the idea that "women and gays are seen as superior to straight men", and that straight men are, effectively, an oppressed group. “Men are not allowed to speak the views that I am speaking,” he tells his rapt audience. The cancelled meetings, it seems, function as proof of this. 

Yates may think Roosh is touting a conspiracy theory, but at heart, it may be simpler than that. Roosh’s pseudo-intellectualism can be boiled down to a single point: the modern world is chipping away at his privilege, and he – and his followers – don’t like it at all. Roosh is furious that, in his eyes, the media is “encouraging” children to be gay, asking Washko: “Why is the media all of a sudden in the business of shaping the sexuality of human beings?”

As Washko writes in her transcript, she resists the urge to reply: “But it always has been!” The difference now is that the narrative (if it exists, which I’d argue it doesn’t particularly) just doesn’t favour Roosh’s demographic anymore. As one of Roosh’s fans tells Yates, “We’re losing ground.”

While equality isn’t a zero-sum game, true cultural and political change will require privileged groups to lose some ground – to give up some of that privilege. Behind the long words and cultural theory, Roosh and his followers are the men simply refusing to do so.  

Barbara Speed is a technology and digital culture writer at the New Statesman and a staff writer at CityMetric.