Buggery

Depiction of the buggery of a goat, by Paul Avril

The British English term buggery is very close in meaning to the term sodomy, often used interchangeably in law and popular speech. It may also be a specific common law offence encompassing both sodomy and bestiality.

Etymology

The modern English word "bugger" is derived from the French term bougre, that evolved from the Latin Bulgarus or "Bulgarian". The Catholic Church used the word to describe members of a religious sect known as the Bogomils, who originated in medieval Bulgaria in the 10th Century and spread throughout Western Europe by the 15th Century. The Church used it as a term of offence against a group they considered heretical. The first use of the word "buggery" appears in Middle English in 1330 where it is associated with "abominable heresy"; though the sexual sense of "bugger" is not recorded until 1555.[1] The Oxford Dictionary of English Etymology quotes a similar form: "bowgard" (and "bouguer"), but claims that the Bulgarians were heretics "as belonging to the Greek Church, sp. Albigensian". Webster's Third New International Dictionary gives the only meaning of the word "bugger" as a sodomite, "from the adherence of the Bulgarians to the Eastern Church considered heretical".[2]

Bugger is still commonly used in modern English as an exclamation while "buggery" is synonymous with the act of sodomy.

In English law "buggery" was first used in the Buggery Act 1533, while Section 61 of the Offences against the Person Act 1861, entitled "Sodomy and Bestiality", defined punishments for "the abominable Crime of Buggery, committed either with Mankind or with any Animal". The definition of "buggery" was not specified in these or any statute, but rather established by judicial precedent.[3] Over the years the courts have defined buggery as including either

  1. anal intercourse or oral intercourse by a man with a man or woman[4] or
  2. vaginal intercourse by either a man or a woman with an animal,[5]

but not any other form of "unnatural intercourse",[6] the implication being that anal sex with an animal would not constitute buggery. Such a case has not, to date, come before the courts of a common law jurisdiction in any reported decision. In the 1817 case of Rex v. Jacobs, the Crown Court ruled that oral intercourse, even with an underage and/or non-consenting animal, did not constitute buggery or sodomy.[6]

At common law consent was not a defence[7] nor was the fact that the parties were married.[8] In the UK, the punishment for buggery was reduced from hanging to life imprisonment by the Offences against the Person Act 1861. As with the crime of rape, buggery required that penetration must have occurred, but ejaculation is not necessary.[9]

Decriminalisation and abolition

Most common law jurisdictions have now modified the law to permit anal sex between consenting adults. In England, the first relaxation of the law came from the Wolfenden Report, published in 1957. The key proposal of the report was that "homosexual behaviour between consenting adults in private should no longer be a criminal offence".[10] However, the law was not changed until 1967, when the Sexual Offences Act 1967 decriminalised consensual "homosexual acts" as long as only two men were involved, both were over 21 and the acts happened in private. However, the Act concerned acts between men only, and anal sex between men and women remained an offence until 1994, when the Criminal Justice and Public Order Act 1994 decriminalised consensual anal sex between a man and a woman, if both were over 18. The Act also reduced the age at which two men could engage in anal sex to 18, but it was not until 2000, with the Sexual Offences (Amendment) Act 2000, that the age of consent for anal sex was reduced to 16 for men and women. In 2003, the Sexual Offences Act significantly reformed English law in relation to sexual offences, introducing a new range of offences relating to underage and non-consensual sexual activity that were concerned with the act that occurred, rather than the sex/gender or sexual orientation of those committing it.[11]

Buggery in as much as it related to sexual intercourse with animal (bestiality) remained untouched until the Sexual Offences Act 2003, when it was replaced with a new offence of "intercourse with an animal".[11][12]

In the Republic of Ireland, the Criminal Law (Sexual Offences) Act 1993 abolished the offence of "buggery between persons".[13] For some years prior to 1993, criminal prosecution had not been made for buggery between consenting adults. The 1993 Act created an offence of "buggery with a person under the age of 17 years",[14] penalised similar to statutory rape, which also had 17 years as the age of consent. The Criminal Law (Sexual Offences) Act 2006 replaced this offence with "defilement of a child", encompassing both "sexual intercourse" and "buggery".[15] Buggery with an animal is still unlawful under Section 69 of the Sexual Offences Act 2003. In 2012 a man was convicted of this offence for supplying a dog in 2008 to a woman who had intercourse with it and died;[16] he received a suspended sentence and was required to sign the sex offender registry, ending his career as a bus driver.[17]

Hong Kong did so retroactively in 1990, barring prosecution for "crimes against nature" committed before the Crimes (Amendment) Ordinance 1990 entered into force except those that would still have constituted a crime if they had been done thereafter.

References

  1. ↑ Oxford English Dictionary.
  2. ↑ Bogomilism Study. Archived from the original on 2015-08-10.
  3. ↑ Quintin Hogg, Baron Hailsham of St Marylebone (ed.). Halsbury's Laws of England. 11 (4th ed.). p. 505.
  4. ↑ R v Wiseman (1718) Fortes Rep 91.
  5. ↑ R v Bourne (1952) 36 Cr App R 135; Sir Edward Coke also reports "... a great lady had committed buggery with a baboon and conceived by it..." at 3 Inst 59.
  6. 1 2 Crown cases reserved for consideration: and decided by the Twelve judges of England, from the year 1799 to the year 1824. 1825. pp. 331–332.
  7. ↑ Because consent was not required, heavier penalties require proof of lack of consent – see R v Sandhu [1997] Crim LR 288; R v Davies [1998] 1 Cr App R (S) 252.
  8. ↑ R v Jellyman (1838) 8 C & P 604.
  9. ↑ R v Reekspear (1832) 1 Mood CC 342; R v Cozins (1834) 6 C & P 351; the Offences against the Person Act 1861, §63.
  10. ↑ "The Cabinet Papers". The National Archives. Retrieved 16 April 2016.
  11. 1 2 Johnson, Paul. "Buggery and Parliament, 1533-2017". SSRN. Retrieved 27 May 2018.
  12. ↑ "Section 69, Sexual Offences Act 2003". Legislation.gov.uk. Retrieved 27 May 2018.
  13. ↑ Criminal Law (Sexual Offences) Act, 1993; §2: Abolition of offence of buggery between persons. Irish Statute Book.
  14. ↑ Criminal Law (Sexual Offences) Act, 1993; §3: Buggery of persons under 17 years of age. Irish Statute Book.
  15. ↑ Criminal Law (Sexual Offences) Act 2006 §§1,2,3 and Schedule. Irish Statute Book.
  16. ↑ Sheridan, Anne (8 November 2012). "Court told mother died after acting on 'sexual fantasy'". Limerick Leader. Retrieved 27 November 2012.
  17. ↑ "Bus driver avoids prison in bestiality case". Limerick Post. 19 December 2012. Retrieved 14 June 2018.

Further reading

  • Smith & Hogan, Criminal Law (10th ed), ISBN 0-406-94801-1
  • Paul Johnson “Buggery and Parliament, 1533-2017”.
  • The dictionary definition of buggery at Wiktionary
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