DPP v Jonathan Cape and Leopold Hill (the Well of Loneliness trial), 1928

By Caroline Derry

In 1928 Radclyffe Hall, a successful middle-brow novelist, published The Well of Loneliness. In November that year, the novel was found criminally obscene. The reason the book was condemned was its subject-matter: The Well not only depicted ‘female sexual inversion’ (roughly equivalent to lesbianism) but also made a plea for its toleration. This case is a landmark because it marked a high point of legal and cultural visibility for lesbianism. It therefore set the tone of legal understandings of relationships between women for much of the twentieth century.

When the novel had first been published, it had received generally positive reviews. However, the editor of the Sunday Express – then in the middle of a circulation war – published a damning editorial on 19 August. It called the book ‘moral poison’, claimed, ‘I would rather give a healthy boy or a healthy girl a phial of prussic acid than this novel’, and demanded that the Home Secretary take action. The publisher, Jonathan Cape, panicked and submitted the novel to the Home Secretary for his view on whether it might be obscene. He thought that it might, so Jonathan Cape ceased publication in Britain. However, the book was then printed in Paris and imported – and after copies were seized by Customs, proceedings were brought in Bow Street Magistrates’ Court, London.

The prosecution was brought against the book’s distributors, publisher Jonathan Cape and bookseller Leopold Hill, not against Radclyffe Hall herself. The Chief Magistrate, Sir Chartres Biron, applied the legal test established in R v Hicklin (1868) 3 QB 360, that obscenity meant a tendency to ‘deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.’ By that standard, he held, this book was indeed obscene because rather than presenting lesbianism as a tragedy, it was ‘a plea for existence in which the invert is to be recognized and tolerated, and not treated with condemnation, which they are at present, by all decent people.’

Biron acknowledged that sex between women, unlike sex between men, was not unlawful. However, his reaction demonstrates that the lack of criminalisation did not equate to ignorance or toleration of lesbianism. Rather, the legal approach in England and Wales had been to enforce silence about the possibility of such relationships between women. According to dominant ideas about female sexuality, ‘respectable’ women were passive and undesiring. They would therefore not discover lesbianism for themselves, so keeping it secret from them was the best way of preventing it. (There was acceptance that it might be found among lower-class and foreign women, who were not ‘respectable’.) The Well of Loneliness threatened that approach, which was why decisive legal action followed – but thereafter, the courts returned to their more usual approach of keeping relationships between women out of view.

The novel had, however, put forward a particular view of lesbianism. ‘Congenital inversion’ was understood to be an innate condition, associated with masculine appearance and behaviour. Congenital inverts would have relationships with pseudo-inverts, women who were susceptible to advances from congenital inverts but might otherwise have relationships with men. The idea that such ‘corruption’ was the greatest danger to most women persisted. It was the explicit basis of policies in the armed forces, where lesbianism was an offence, during and after World War II. More subtly, it informed the responses of the criminal and family courts where for many more decades, ideas of lesbianism as corrupting resulted in harsher sentences and loss of child custody.