Victorian sodomy trials in Allahabad and London

[breathedout]

Anjali Arondekar, in For the Record: On Sexuality and the Colonial Archive in India, details a case which, in addition to the far subtler points she goes on to make about it, provides a striking contrast with the way late Victorian sodomy prosecutions of white Londoners happened (as invasive and traumatic as even those prosecutions were):

On January 31, 1884, the High Court of Allahabad called a case in which one Khairati had been previously convicted by Mr. J. L. Denniston, sessions judge of Moradabad, of an offence under section 377 of the Penal Code. The charge on which the appellant was committed and tried was the following: "That he, within four months previously to the 15th of June (1883), the exact time it being impossible to state, did in the district of Moradabad abet the offence of sodomy, by allowing some unknown person to commit the offence of sodomy on his person, and was at the time of the commission of the offence present, for which reason he must, under s. 114 of the Indian Penal Code be deemed to have committed the offence itself, and thereby committed an offence punishable under s. 377 of the Indian Penal Code." The particulars of the conviction as disclosed in an excerpt from the judgment of the sessions judge reveal that Khairati was initially arrested for "singing in women's clothes among the women of a certain family" of his village and thereafter subjected to a physical examination by the civil surgeon. On examination, Khairati was shown "to have the characteristic mark of a habitual catamite—the distortion of the orifice of the anus into a shape of a trumpet—and also to be affected with syphilis in the same region in a manner which distinctly points to unnatural intercourse within the last few months." When asked about his physical condition, Khairati denied all charges of sodomy and argued that he had suffered a serious case of dysentery, thus causing the extension in his anus. His explanation was dismissed as being insufficient and inadequate to explain the presence of syphilis in the same region. The sessions judge, Denniston, concluded that while none of the three circumstances individually (wearing women's clothes, subtended anus, and the presence of syphilis) were enough to provide evidence of criminality, taken together they left "no doubt that the accused had recently been the subject of sodomy."

Even as he rendered this guilty verdict, Denniston was careful to point out the complex legal peculiarities of the Khairati case, in which no precise record of the crime's enactment nor any testimony of the victim(s) of the alleged crime were ever located. Such a verdict, his judgment argued, despite its legal "obscurities," had to be rationalized in the larger "spirit of the law," where "misconduct of this sort...cannot be reasonably exempted from punishment." In passing such a judgment, Denniston also overrode any procedural objections stemming from the Code of Criminal Procedure by simply stating that the absence of "the particulars alluded to in s. 222 of the Criminal Procedure Code weakens the case, but does not destroy it." When the case Queen Empress v. Khairati was later called before Judge Straight (that was indeed his name) of the Allahabad High Court, Khairati's earlier conviction was quickly dismissed for lack of precise detail about the particulars of the offence, as the "exact time, place, and persons with whom these offences were committed" was not fully discovered. Straight concluded his remarks on the case by declaring that while the "accused is clearly a habitual sodomite," and while he could "fully appreciate the desire of the authorities at Moradabad to check these disgusting practices, neither they nor he can set law and procedure at defiance in order to obtain an object, however laudable."

Several compacted historical details stand out in this remarkable narrative enactment of Khairati's indeterminate yet somehow relentless criminality. The session judge's judgment of the case mentions, as an aside, that Khairati was under police supervision as a eunuch previous to his arrest, even though he clearly was "not a eunuch in the literal sense." We are also told that Khairati was arrested for "singing dressed as a woman," even though his testimony insists that while he "habitually [wore] women's clothes," he was not singing on the occasion on which he was detained. Further, despite their opposing judgments, Denniston and Straight both repeatedly labeled Khairati a "habitual catamite" or "sodomite," where the terms of his "habitual" criminality remained suspended between the epistemological imperatives of legal codification and colonial anthropology. Khairati could not legally be categorized as a "habitual offender," a grouping that did not extend to persons "addicted to acts of immorality." As colonial police manuals, such as The Police Officer's Companion, explain: "To constitute a person, a habitual offender, it is necessary, that the subsequent offence charged, should have been committed by the accused after the previous convictions." [...]

Khairati's "habitual" crime of sodomy thus stands at the cusp of the colonial state's relationship between an individual and a collective crime, testing the limits of such demarcations. How does a case with merely an individual bodily trace ("subtended anus"), no palpable injurious effect ("no injured party"), no palpable location and witness, and no ostensible threat posed to the public produce such a conceptual stress?

Compare this to some examples of white Englishmen arrested in London for alleged soliciting (a few decades after this, but the comparison stands), taken from Matt Cook's London and the Culture of Homosexuality, 1885-1914:

In 1902 Lawrence Salt appeared before magistrates for 'persistently soliciting’ after being observed in Piccadilly Circus talking to a man who was known to be 'an associate of bad characters’. The magistrate dismissed the case, but excused the policeman’s seemingly excessive rigour on account of Piccadilly’s reputation. In 1912 John Hill and Robert Freeman were jailed under the 1898 statute after attempting to engage men in conversation on Charing Cross Road. In the same year an actor, Alan Horton, was sentenced to ten weeks with hard labour after he was observed by plainclothes police officers entering the public toilets in Piccadilly Circus and Leicester Square around midnight. He did not make contact with any one during this time but according to police evidence 'while in said lavatories and also while in the street he smiled in the faces of gentlemen, pursed his lips and wiggled his body’. The police also cited his use of make-up. No one apart from the police complained or appeared to notice his behaviour but the conjunction of time, place and his effeminacy were sufficient to effect arrest and imprisonment.

Both sets of arrests—that of Khairati in Moradabad and Salt, Hill, Freeman, and Horton in London—demonstrate the shift that was happening in British jurisprudence, where it was becoming more and more common for men to be arrested for having the appearance or behavior of someone who might commit sodomy (cross-dressing, effeminacy, frequenting places with bad reputations) rather than for being actually caught in a compromising situation with another man. But—and I would of course be interested if folks have counterexamples—I have never heard of any Victorian or Edwardian court proceedings where the shape or health of the anus of an Englishman, even the anus of a working-class Englishman, was offered in evidence. And indeed, in none of the cases Cook mentions do the men in question seem to have been subjected to a medical exam, nor do their bodies seem to have been used to establish evidence of their "habitual" practices—even when a claim of "persistent" solicitation was a key part of the accusation. At the Wilde trial, to take another famous example, testimony of bodily traces were offered in evidence: hotel maids testified to seeing young men in Wilde's bed, and finding fecal stains on his sheets; the prison chaplain testified, based on the smell of semen, that in prison Wilde had resorted to masturbation (... I know). But no evidence was offered based on physical examinations of Wilde, Douglas, or any of the several young male prostitutes with whom he was accused of "gross indecency," either as to their anal shape or their status in re: venereal disease. This despite the fact that Wilde was certainly being examined by doctors, since he was radically unwell for much of the duration of his time in prison, both before and after conviction.

Arondekar touches in the previous chapter on the deeply racist roots of cultural anthropology as it was developing during the mid-19th century, when emerging trends placed an emphasis on the "reading" of native bodies over native documents:

[The Anthropological Society was committed] to "the creation of a 'liberty of thought and freedom of speech' unequalled in any other scientific society—a forum where one could discuss not only general matters of human anatomy and physiology, but such questions as male and female circumcision, and phallic worship." The "anthropologicals," as members of the ASL were called, had previously broken away from the more established Ethnological Society of London (ESL), citing differences in methods and approaches to the "study of man." Prominent among such differences was the ASL's "politics of race" that advocated racist compendiums of "anatomical physiological and psychological evidence and opinion" under the guise of research and colonial service.

Under this rubric it becomes the mark of enlightened, supposedly-progressive thought to be able to treat of any part of a native body as a piece of evidence, without succumbing to shock or prudishness. Indeed, in an intellectual climate that systemically discredited native testimony as devious and unreliable, the medical "evidence" supposedly present on native bodies—though properly legible only to Europeans—became the cornerstone of 19th century colonial jurisprudence in India in a way that it wasn't back home in England. Presumably because Englishmen could be trusted to testify for themselves.

Comments

[teaforlupin]

Wow, that's... fascinating and horrifying and the whole spectrum in between; I had no idea that native bodies were offered as evidence in trials in ways that white bodies were not (though I should not be surprised).

Thanks for sharing!

[thatyourefuse]

But—and I would of course be interested if folks have counterexamples—I have never heard of any Victorian or Edwardian court proceedings where the shape or health of the anus of an Englishman, even the anus of a working-class Englishman, was offered in evidence.

Boulton & Park, actually, unless I'm really misremembering! IIRC, when they were initially arrested for making themselves extremely conspicuous in women's clothing, they were taken into custody within the jurisdiction of a police surgeon who'd been reading just a ton of French sexology texts lately, and he decided that this was an excellent opportunity to start some empirical investigation. Which makes for a really interesting contrast, because that was NOT a routine practice and it didn't do the prosecution much good in court; many affluent Englishman connected to the legal system already had a serious grudge against the French and their newfangled unsportsmanlike police, and there was a great deal of debate over whether we really wanted to encourage these disgusting continental practices anyway. I've seen plausible arguments that the prosecution absolutely shot themselves in the foot by relying on said police surgeon's findings (insert scare quotes as desired), because a significant number of people involved just didn't want to set a precedent.

[violsva]

Not men, obviously, but this actually reminds me very strongly of the Contagious Diseases Acts - in force in Britain 1864 to 1886, and then remaining in force in India after they were repealed there. Which allowed police in certain areas to detain and forcibly examine any woman they suspected of prostitution. In that case, however, they weren't looking for evidence of prostitution but for evidence of sexually transmitted diseases, and infected women were sent to (and imprisoned in) hospitals rather than tried for anything.

[achray]

This is horrifying and interesting. I've never heard of testimony like this in a British court of the period either. Indeed I don't think you could have *spoken* this kind of bodily evidence in a court in Britain. Though the Contagious Diseases Act was of course intended to allow intimate inspection of women's bodies to see (in theory) whether they had a sexually transmitted disease, and that inspection rested on 'reading' them as prostitutes in the first place.

The whole 'he was a eunuch. But not' is interesting too.

[achray]

aha I had not read the comment above! All your readers are well up on Victorian sexuality.

[starshipfox]

where it was becoming more and more common for men to be arrested for having the appearance or behavior of someone who might commit sodomy (cross-dressing, effeminacy, frequenting places with bad reputations) rather than for being actually caught in a compromising situation with another man

This reminds of Quentin Crisp's The Naked Civil Servant, in which he talks about being followed by the police, beaten or arrested because of his effeminate appearance and mannerisms. He talks about terrified to enter a public lavatory because he was afraid the police would arrest him. This would have been in the 30s-60s.

Very sad and interesting to compare the two cases. The treatment of white Englishmen seems appalling, and then one realises how much worse it could be. :(