Oscar's fate today: caged

Modern justice would deal even more severely with Wilde the sex offender, says MICHAEL BURTON

THE centenary of Oscar Wilde's death on 30 November is perhaps the moment to punctuate the hero-worship by asking what would have happened to Oscar if the celebrated trials of 1895-96 had occurred today.

Not unlike Jonathan Aitken, Wilde himself started the process which led to disaster by unwisely bringing a criminal libel action against the Marquess of Queensberry, the father of his lover, Lord Alfred "Bosie" Douglas, who had sent him a note to his club accusing him of "posing as a Somdomite". (The superfluous middle "m" was the marquess's misspelling.) He had to abandon the proceedings in midcourse when his lawyers appreciated the strength and the nature of the evidence against him that was to come.

After the trial the marquess's lawyers sent to the prosecuting authorities the statements of the young boys whom they had intended to call as witnesses if the libel case had continued. The criminal trials then followed (the first of them abortive) which led to his conviction.

The accompanying publicity must in its day have been equivalent to that which surrounded Jeremy Thorpe's "trial of the century" 90 years later; though no doubt the sexual descriptions were somewhat more coy than that of Norman Scott's "biting the pillow", which rocked the readership of serious and tabloid press alike in 1980.

Wilde was sentenced to two years' imprisonment with hard labour.

Fortunately, "hard labour" no longer exists. But what would have happened today? The context of the trial may have been his notorious or celebrated love affair with the marquess's son, Lord Alfred Douglas, but that was not the subject of the criminal trials or of his conviction. The evidence which convicted him was of sex, by a man well into his forties, with a series of boys who, though mostly 18 to 20 by the time they gave evidence, gave an account of Wilde's sexual activities with them for some years before.

He was charged with indecency offences, which in those days carried a limited sentence. But whether or not some of his young sexual partners were what would today be stigmatised as "rent boys", the evidence which they gave would, once accepted by a jury, justify lengthy sentences under the Sexual Offences Act 1956-1992.

Even consensual sex by a middle-aged man with under-aged boys is still treated very seriously today by the courts.

In three recent cases in the Court of Appeal Criminal Division, in 1998, 1999 and this year - the last in a court presided over by Lord Bingham, the then Lord Chief Justice - older men (though considerably younger than Wilde was) who pleaded guilty to sex with boys of 14 and 15, said to be willing participants, were sentenced, after reduction on appeal, respectively to 18 months, three years and 21 months.

Wilde's offences were over a much longer period and with more boys, and because he unsuccessfully contested the charges, he would have had no discount for a guilty plea, as did those three defendants.

It would seem likely, therefore, that he would have received a sentence considerably longer than two years. In addition, he would, under the Sex Offenders Act 1997, have been put on the Sex Offenders Register. There he would remain for at least 10 years.

If his sentence were longer than 2 1/2 years, he would be on the register for life, requiring him to keep the police permanently notified of his home address. He would inevitably have attracted the attention of the News of the World and its supporters in their anti- paedophile campaign, which might well have resulted in his being hounded from his home and from England, just as he was in 1897 on his release from Reading Gaol. No doubt, like the filmmaker Roman Polanski, who fled America after having been accused of having sex with a minor, he could have carried on artistic activities abroad. His reputation as a great playwright would have continued undimmed. But it is difficult to see that he could have continued to be lionised in London's drawing rooms, or that the likes of Lady Windermere would have remained among his fans, or that Lady Bracknell - or even Lady Thatcher would have let him within reach of her handbag.

Sir Michael Burton is a High Court judge and was a member of the defence team at the Jeremy Thorpe conspiracy trial.

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