While police investigations have adapted to new technologies, the basic premises of investigative police work have been pretty consistent since the 1880s in the UK, Ireland, and the US. But that does not mean that the philosophical and procedural organization of modern policing have not or cannot undergo revision or reform. For example, the ways that these national policing organizations dealt with same-sex sex when homosexuality was illegal shifted significantly over time . The Irish police — or Garda — had a multitude of tactics for catching men having sex with men. One of the most controversial was when they used agents provocateur, men who used their own bodies as bait for same-sex desiring men. This was a tactic employed first in 1927, and then dropped completely by 1936. Why? Today we’ll contemplate that question while thinking about authorized deception, authorized crime, and incitement to crime in the modern policing of sex.
Transcript for: Bodies of Evidence: Modern Policing, Sex, and the Intricacies of Authorized Crime and Deception
Researched and Written by Averill Earls, PhD
Recorded by Averill Earls, PhD and Sarah Handley-Cousins, PhD
Sarah: It was a warm October evening in Dublin, and the pubs of the city center were busy. Henry Coghlan was confident as he cruised O’Connell Street, looking for men interested in a casual sexual encounter. He stepped down into an O’Connell Street lavatory, and a man inside made eyes at him. He made eyes back. There were plenty of empty stalls in the lav, but Coghlan didn’t use one. Instead he walked in, and walked back out, brushing by the man with whom he’d made eye contact. Coghlan went and stood in front of a nearby building under construction, seemingly admiring it. The man from the lav came and stood beside him.
Averill: “That’s a fine building they’re putting up,” the man from the lav said. “I believe it’s going to be a hotel like the Gresham.” Coghlan, who knew better, said he’d heard it would be shops on the bottom, so not like the Gresham. Noticing the time, Coghlan told the man from the lav that he had an appointment to keep, so he had to be off. The man said he’d walk with Coghlan, since he was heading in the direction of O’Connell Bridge. When they got to Abbey Street, the man from the lav invited Coghlan in to Mooney’s, a pub nearby, for a drink. Coghlan said he couldn’t, as he had that appointment at 6. The man from the lav asked if they might meet up later that evening; Coghlan said he couldn’t tonight, but that they could meet any other night. The man from the lav said he was going out of town, but that they could meet in a week’s time, perhaps at Mooney’s pub? Coghlan laughed and said no, “because if you turned up and I didn’t, or I turned up and you didn’t, it’d only be a case of a man drinking on his own,” and what a lonely thing that would be.
Sarah: When the man from the lav suggested the very spot in which they stood, Coghlan said yes, that would do nicely. They planned to meet again on October 11th, at 7pm, in this spot at the corner of Abbey and O’Connell. When Coghlan offered his hand, the man from the lav grasped it and gave it a squeeze, saying, “I hope that there will be something doing.”[1] Coghlan only smiled and said, coyly, “You will have to wait and see.” The man from the lav headed off to the pub, and Coghlan continued on his way to the garda station. When he told his superior, Ennis, about his encounter with the man from the lav, Ennis gave him “special instructions” to meet as arranged on October 11. Coghlan had baited the trap, and was to secure evidence to prosecute the unsuspecting man from the lav for an act of gross indecency.
Averill: The Irish police — or Garda — had a multitude of tactics for catching men having sex with men. One of the most controversial was when they used agents provocateur, men who used their own bodies as bait for same-sex desiring men. Today, a defense lawyer would undoubtedly use the guards’ own testimony to argue that this was entrapment. We’ll finish the story of Coghlan and the man in the lav later in this episode, but you can imagine where this is going. When I first wrote about this story in my doctoral dissertation, I was warned away from calling this and similar cases “entrapment,” because entrapment is illegal. I didn’t dig deeper at the time, because I just wanted to graduate! Today, I finally want to unpack this case, and place it in the longer history of the agents provocateur, entrapment, and the role of authorized crime in modern policing.
I’m Averill Earls
And I’m Suzy B Wilson
And we are your historians for this episode of Dig.
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Averill: Though they may seem like timeless institutions, the centralized “police” as we know them are a fairly modern invention. The French were among the first Europeans to establish a municipal and uniformed police force to keep an eye on the rabble in Paris in 1667. In the American colonies, local patrol units were created to hunt and capture escaped enslaved people. The modern, publicly funded organizations as we know them today were created in the 19th century to enforce law and order, and, of course, deal with the criminals who disrupted law and order. As Home Secretary of the United Kingdom, Sir Robert Peel established a police force in Dublin in 1822 to help maintain order in Ireland, where resistance to the 1801 Act of Union was ever present. When Irish Catholic lawyer and political hopeful Daniel O’Connell created the Catholic Association, a mass movement with thousands of Irish members, to pressure the British government to repeal the Penal Laws that disenfranchised Catholics, the British expanded the presence of the Royal Irish Constabulary throughout Ireland to deal with agrarian unrest and O’Connell’s famous Monster Meetings. Peel quickly saw the usefulness of a centralized municipal police force, and created one for London in 1829. Following the British example, Boston and New York City soon after created their own police organizations in the 1830s and 40s.
Sarah: The charge of these early policing organizations was as one might expect: walking the streets of cities, towns, and villages to maintain the peace, dealing with reported crimes, and apprehending criminals. For most of the 19th century, there was little in the way of organized investigative police work, or the collection of evidence and production of information to be utilized in a prosecution effort. Scholars of policing describe the period of 1800-1880 as one in which investigative policing began with individual detectives. According to Brendon Murphy, as policing organizations grew and bureaucratized, they established specialized branches dedicated to investigative policing.[2] This reform and growth period stretched from around the 1880s to the 1930s–a significant point in time for the fledgling Garda of independent Ireland, as we can discuss in a bit.
Averill: With access to greater and more efficacious technologies – fingerprinting, databases of criminal records, procedural crime scene investigation, but also simple things like radios, telephones, flashlights, cars, and motorcycles – the process of the investigation itself became further specialized. According to Murphy, “Essentially, the investigation of crime has moved away from individual actions of a ‘heroic’ detective and become professionalised, corporatised and heavily reliant on technology and information systems.”[3] That’s even more true in the current age of policing with the role of things like trace DNA, globally accessible databases, and the potential for multi-agency information sharing. Investigative police work can be and is ever evolving, with bureaucracy and oversight generally matching pace with the technological changes.
Sarah: That said, as Murphy and other scholars note, one of the most effective methods of investigative police work is still undercover operations. According to Murphy, “Crimes involving willing or mutually implicated parties, such as white collar crimes, corruption, consensual sex offences and drug-trafficking …are normally conducted in secret, and accordingly specific methodologies have evolved in order to investigate them. These methodologies are often undercover, and typically involve deception.”[4] From plainclothes detectives cruising in unmarked cars to deep undercover agents planted in criminal organizations, the intelligence-gathering potential of what Murphy terms authorized deception and authorized crime are as essential to sussing out criminal activity today as they were in 1927. And yet–as in the case of Henry Coghlan and the man from the lav–this line of policing comes with a set of ethical and legal problems that one cannot ignore.
Averill: Authorized deception and authorized crime, as Brendon Murphy describes them, are ideas that I want to unpack for a second. These are not concepts that are unique to the US. From its inception, the Garda used clandestine surveillance and undercover officers to gather intelligence and arrest people who broke the law. In the United Kingdom as well, starting in the 1960s, covert policing was integrated into regular police functions. and continuing well into the twenty-frist century. Authorized deception has long been a normalized part of police work, as it is statecraft — after all, espionage is not a modern invention by any means. But as one might imagine, the normalization of such tactics can take a toll on individual officers, and also case aspersions on the legitimacy of the evidence collected in the course of the deception. In 2010 there was a scandal in the UK when it was revealed that undercover officers had infiltrated the environmentalist groups that protested the 2009 G-8 Summit, some going so far as to marry or father children with women members of the activists group, under their false identities and pretenses. One of the officers sued the London Metropolitan Police for being mishandled by his supervisor. The undercover agent, Mark Kennedy, told The Guardian, “I worked undercover for eight years. My superiors knew who I was sleeping with but chose to turn a blind eye because I was getting such valuable information. They did nothing to prevent me falling in love.”
Sarah: Policing scholar Gary Marx notes the same problems in the American system of authorized deception, and particularly the toll of undercover work on officers. One famous example is John Livingstone, an FBI undercover agent who was lauded for his successful investigative operation. In the years after though, it was revealed that he struggled to separate from his false identity, as a distributor of sexually explicit material in Miami, and continued to use his undercover identity without authorization, until he was arrested for shoplifting.[5] The danger inherent in undercover work today has long-term effects on many officers doing that work. Many get addicted to drugs like cocaine and alcohol and have relationships end messily, sometimes violently.[6]
Averill: Authorized crime has also become a standard element of modern policing. A civilian, for example, is never permitted to break down a door and subdue through force the occupants of the residence. For civilians, those acts are crimes — breaking and entering, assault, battery, perhaps even attempted murder. With a search warrant, issued by the state via a judge, these actions are still crimes, but police are authorized to commit them. As investigative policing has grown and becomes institutionalized, the processes by which police are authorized to break laws in order to enforce other laws have expanded in the last 100 years. In the US we have normalized this so much that we often perceive police as above the law. In the sense that they are often granted temporary authorization to break the laws that govern civilians, they are. Today in the US, Canada, Britain, and Ireland, police can enter residences, apprehend suspects, seize potential “evidence”, and more, without a search warrant. According to the Ontario government website, for example, police are authorized to enter a private residence without a search warrant if:
- they need to enter in order to prevent someone inside from being seriously injured or killed, or
- there is evidence in your home that relates to a serious offence, and they need to find that evidence right away or it might be lost or destroyed.
- they have reasonable grounds to believe there is evidence in your home, for example, drugs or weapons, and they need to act immediately so that the evidence will not be lost or destroyed
- to give emergency aid to someone inside
- to protect the life or safety of someone inside if they have a reasonable belief that a life-threatening emergency exists
- to protect the life or safety of people in the home if someone heard a gunshot inside
- to prevent something that may be about to happen, if they have a reasonable belief that their entry is necessary to stop it or to protect their safety or the safety of the public
- to investigate a 911 telephone call
- to help someone who has reported a domestic assault to remove their belongings safely
- to protect people from injury if the police have reason to suspect that there is a drug laboratory in the house
- to help animals in immediate distress because of injury, illness, abuse, or neglect
Sarah: Similar caveats and loopholes exist for US, UK, and Irish police. In Ireland, many laws give Gardai leeway to enter premises without a warrant, for example, the Intoxicating Liquor Acts (1927, and all subsequent amendments in 1943, 1960, 1962, and beyond), the Public Dance Halls Act (1935), and the Health Acts, of which there have been dozens passed between 1878 and today. Other legislation entitles police officers to search you and/or your vehicle without a warrant, for example, the Dublin Police Act (1842), the Misuse of Drugs Act (1977), and the Criminal Law Act, which was passed by the UK parliament first in 1828 and then amended dozens of times under British and then independent Irish rule. One of the most recent amendments to the Criminal Law Act, in 1997, outlines the conditions under which a gardai may enter a premises without a warrant:
Averill: “For the purpose of arresting a person without a warrant for an arrestable offense a member of the Garda Síochána may enter (if need be, by use of reasonable force) and search any premises (including a dwelling) where that person is or where the member, with reasonable cause, suspects that person to be, and where the premises is a dwelling the member shall not, unless acting with the consent of an occupier of the dwelling or other person who appears to the member to be in charge of the dwelling, enter that dwelling unless—
( a ) he or she or another such member has observed the person within or entering the dwelling, or
( b ) he or she, with reasonable cause, suspects that before a warrant of arrest could be obtained the person will either abscond for the purpose of avoiding justice or will obstruct the course of justice, or
( c ) he or she, with reasonable cause, suspects that before a warrant of arrest could be obtained the person would commit an arrestable offense, or
( d ) the person ordinarily resides at that dwelling.
Sarah: As suggested in the Irish statute, officers are authorized to use “reasonable force” as well – activities that would likely be categorized as destruction of property or vandalism for a civilian. In the US, we have authorized the use of force, including lethal force, “when necessary.” “When necessary” has been loosely defined in the US, as evidenced by the all-too-regular police killing of unarmed suspects and those held in police custody. When officers kill suspects and civilians, they may be issued suspensions or even lose their jobs, but the policing culture and criminal justice system rarely prosecutes those officers for murder, or even manslaughter. Civilians who accidentally kill someone when defending themselves are still tried. Like soldiers in war, though, American police are exempted from these processes.
Averill: Significantly, I think, this is not the case everywhere. In Ireland, where police brutality is rarer but not unknown, the Gardai are not given such free license to abuse civilians as they are in the US. In 2011, for example, several gardai were charged and found guilty for assaulting a man in Waterford. The man had been resisting arrest after drunkenly urinating on the street. The gardai were caught on CCTV knocking him to the ground and punching him several times. The three officers who did the brutalizing were convicted. (Now, if we were to talk about Northern Ireland during the era of the troubles — that would be an entirely different story. And harkens back to the issue of the framing of the relationship between police and civilians — in the north between 1968 and 1998, the police were treated like an army at war with the Provisional IRA and its offshoots. And to be fair, IRA members killed, tortured, and set off bombs, because they also believed they were in a war for independence.)
Sarah: When officers commit unauthorized crimes, there are instances in which their status and occupation protect them from legal ramifications. There are cover-ups in every policing organization around the world. Sometimes this is facilitated by broader police and government corruption; in the US this is facilitated by an informal code of “loyalty” to ones fellow officers above all else, a phenomenon that is known as the “blue wall of silence.” Police corruption is as old as the organization itself–and never without criticism, push-back, and calls for reform.
Averill: There are still regulatory rules and procedures that govern the when and how authorized crime can be committed. Though we in the US often perceive police to be above the law, there are limits to police power. An on-duty uniformed police officer cannot drive their police cruiser down the Florida State highway at 150 miles per hour (unless they are in pursuit of a suspect, of course). But as one study of arrest reports for US police between 2005 and 2011 shows, officers are not above the law. That study identified 6,724 arrested officers in that six year period, with 1,475 arrests for sex-related police crime, over half of which involved children; 1,405 arrests involving alcohol-related police crimes; 739 drug-related, 3,328 violence-related, and 1,592 “profit-motivated” crimes. Notably, these were just the crimes that made it to news reporting agencies. The authors of the study suggest that most of these crimes were opportunistic, and facilitated by the nature of police work, which involves heavy interactions with civilians.
Sarah: In theory, an officer who is “off duty” would not be authorized to subdue “suspects” or break into someone’s private residence. This is challenging to uphold, though, as in many states and countries, the court systems support the legal claim that a police officer is always on duty. So when police activities can be framed as meeting the basic criteria like those we just listed for things like entering a private residence or searching your person or vehicle without a warrant, they can be exempted from what few limitations do exist.
Averill: It is even more challenging to track the difference between “off” and “on” duty for undercover police work. While presumably there is a record-keeping system that determines times and days when an undercover officer is “on” or “off” duty, and undercover officers must report to superior officers regularly, file reports, and contribute in some way to the normal operations of the department, Marx notes that officers who go deep undercover can sometimes lose themselves in the work. The psychological toll of building a relationship with a suspected criminal and then “betraying” that trust–even if it was built on false pretenses–can be immense.
Sarah: Understanding the challenges and value of authorized crime and authorized deception in policing is further complicated when those tactics are employed to police “moral” crimes. Sex work and its related activities–brothel management, pimping, soliciting in public places, etc–in particular continue to be policed throughout the US, UK, Ireland, and elsewhere. While the exchange of money for sex is technically legal in the UK, the associated activities are not. In the US, prostitution of any kind is illegal everywhere except Nevada, which permits brothel-based sex work.
Averill: (It’s also illegal in Ireland, though one of the best buddy cop movies of all time, The Guard, has a long sub plot about an Irish gardai who spends 1 night every month with women from a sex work service. If I remember correctly, they come on the bus from Galway or maybe Dublin, and they’re not Irish women – eastern European maybe, with I suppose it supposed to be a commentary on immigration in Ireland, stacked alongside prudery and the old Irish belief that prostitution doesn’t even exist in Ireland. Ha! Laughable. As anywhere else, prostitution is now and has always been in independent Ireland, just as it was in Ireland when Ireland was part of the United Kingdom, and before the Act of Union. Sex work is ubiquitous.)
Sarah: In any criminal situation an agents provocateur might have ethical qualms about his role in inciting others to commit crimes. A simple transaction, like getting a drug dealer to sell you an illegal substance, might not carry much in the way of ethical burden. But what if you were instructed to create a fake supply chain, and gave the drugs to that dealer to distribute? Officers who’ve gone deep undercover may form attachments to the people they work with, which creates one level of emotional and psychological challenge. Others may find the simple act of being the supplier–even if it is an authorized crime–morally compromising.
Averill: Some may lack the self-reflexivity necessary to grapple with the moral and ethical qualms of undercover work. And yet others, as in the case of the Black investigators the Committee of Fourteen hired to suss out vice and prostitution in 1920s Harlem, may simply believe in the moralizing mission, and therefore find no qualms about the work.[7]
Sarah: When the authorized crime is sexual in nature, the complications are amplified. According to Gary Marx, 21st century police departments still assign officers to police consensual sexual behavior. Officers often find it “undignified, unchallenging, demeaning, and socially unproductive.” Such assignments are often given goofy nicknames, like “fruit shakes” and “pussy posse.” As one officer, who was tasked with arresting nude male exotic dancers, put it: “I hate to think that’s my job in life, to go around telling guys to cover their buns and girls that they can’t get their T-shirts wet.” In cities concerned with policing sex work, women officers often get ordered to pose as prostitutes to entrap men looking for buy sex or gather information on local pimps. When discussing her frustration at being assigned to this work, a Detroit officer said, “I went to Michigan State University…and I studied hard to be a policewoman, but I don’t think all the training was done so I could pose as a prostitute.”[8]
Averill: For much of the 20th century, the sale of pornography, contraceptives, procurement of abortions, and sex between men was illegal in the UK, US, and Ireland, and it fell to law enforcement agencies to enforce those laws accordingly. As Murphy noted, because sex-related crimes tend to be committed in private or concealed ways, oftentimes undercover agents are the best source of information. When the crime is the sex act itself, though, the role of the undercover agent can be tricky. How does one secure a body of evidence for a sex crime, if it is the act itself that is the crime? Between 1930-1967 in the UK, the preferred method of detection was surveillance of popular public sex spots. Similar methods were preferred in most US states well into the 1980s (and longer in some states – federal abolition of the sodomy laws was not established until 2003). In Ireland, where same-sex sex was illegal until 1993, surveillence of popular public sex spots was most commonly employed after 1935. But as Henry Coghlan demonstrated on October 11, 1927, police officers could and did also employ their own bodies as sites of criminal activity, thereby creating their own body of evidence.
Sarah: Authorized deception to gather evidence need not always involve the committing of authorized crime. Historian Michel Rey has shown how agents provocateurs were sent into the streets and taverns of 18th century France to insert themselves into the homosexual subculture of Paris, but that didn’t necessarily require inciting members of the subculture to sex crimes.[9]
Averill: Indeed, as William Peniston shows, by the Napoleonic period, the sex itself was not necessarily illegal, but the police still saw same-sex desiring men as subversive to social norms and thereby in need of close scrutiny. And yet, in some cases, even though the courts were unlikely to send homosexual men to prison officially, French police in the late 19th century still used entrapment tactics in public lavatories as grounds to harrass, interrogate, and arrest French same-sex desiring men. Even in a country where the act itself wasn’t strictly necessary, it was used–sparingly–to try to control same-sex sex.[10]
Sarah: Much like the fledgling Irish Free State Civic Guard, the London Metropolitan Police experimented with undercover officers given special orders to suss out same-sex sex offenders. Between 1918-1935 in London, plainclothes officers were instructed to infiltrate queer pubs and clubs and bait men into indecent assault in public urinals.[11] In WW2 Germany, a soldier who’d just returned from the Russian front and cruised a public lavatory in Breslau brushed against the man he thought was interested. The man turned out to be an SS sergeant. When the soldier said, “All I did was to brush up against you,” the officer replied “The fact that you are here is sufficient proof.”[12] In this case, we don’t know if the SS officer was there waiting for men to make a pass at him. And based on the SS officers response, and the rate at which the Nazis arrested and imprisoned men suspected of homosexuality, it’s just as likely that he was planted there purposefully.
Averill: I’ve been thinking about these sting operations for a while. I think the most interesting cases are those in which the police use their own bodies to bait same-sex desiring men into commiting crimes of gross indecency — because, of course, then the officers are themselves also committing acts of gross indecency. After all, it takes two to tango, or in most of these cases, fellatio. But there are also a number of historical examples of officers using third parties to set up these stings, which bear their own ethical challenges. In his work on late-19th century Canada, Lyle Dick discusses a Western Canadian detective who convinced one same-sex desiring man to lure another into a compromising situation. In that case the police were the architects of the trap, but they used another man whom they had already caught engaging in same-sex sex to catch their suspect.[13]
Sarah: Notably, in these historic cases, officers who used their own bodies as bait and then evidence were always deemed problematic. At most, police departments employed these baiting tactics for a few years in a row, with varying results. In the UK, laws were passed throughout the 19th and 20th centuries in response to police who incited civilians to commit crimes. According to Murphy, “Incitement to commit a crime was a felony at common law, while the activities of the agent provocateur were specifically rejected as a law enforcement technique in a number of Parliamentary enquires between 1833 and 1980.”[14] The recognition that this baiting technique was too close to incitement for comfort undoubtedly contributed to its discontinuation in the UK. If nothing else, the UK example reveals the shifting nature and revisability of police organizations. What might be authorized crime or deception in one period may be rejected as incitement to crime – entrapment – in another.
Averill: In 1924, the newly-formed Irish Free State created the Civic Guard, later Gaelicized as An Garda Siochana. It was intended to be a “police force for the people,” distinct from the former Royal Irish Constabulary. From their beginning in the early 19th century, the RIC was a tool of colonial control, aiding British soldiers in crushing Irish rebellions, following orders to evict rural tenant farmer families from their homes, and enforcing the laws disenfranchising Irishmen and women passed by Parliament in London. Independent Ireland’s Garda was supposed to be different. In 1925, “[District Justice Kenneth Reddin] wanted it understood that the days when a police officer might treat an ordinary citizen as an inferior animal had definitely ceased. The police were paid and kept and run by the people and they were the servants of the people.”[15] And in some important ways, they were different. The first recruits for the new force were drawn from those Irishmen who’d fought for independence. They were given new uniforms, and significantly, they were established as an unarmed force.
Sarah: The Royal Irish Constabulary was tasked with keeping the Irish citizenry in line. Policing was often brutal, aligned with external pressure to maintain Ireland’s continuance in the United Kingdom. Little effort was funneled into policing sex unless crimes were specifically reported to the constables. When it came to policing same-sex sex crimes, investigations were limited to those of adults sexually assaulting children under the age of 12. Sex did not destabilize English rule of Ireland, and so policing it was not an important focus of the RIC.
Averill: Conversely, sexual morality had been a key tool of Irish nationalism since the nineteenth century, when Irish members of parliament used same-sex sex scandal and English crime to challenge England’s moral authority to rule Ireland. Irish nationalist newspapers insisted that “gross indecency” was “the last crime an Irishman was likely to be guilty of,” and politicians paraded around the crime statstics that often showed more sex crimes across the spectrum in London alone than in all of Ireland for any given year. In the twentieth-century, when Irish nationalism was slowly fused with Catholicm, Ireland’s self-governance rested on its purity. Sex could very well destabilize Irish rule of Ireland.
Sarah: Under the leadership of Eoin O’Duffy, the first Commissioner of the national police force, the Garda dedicated considerable resources to policing sex. They drove street-walking sex workers underground, and for the first time in Irish history, conducted extensive campaigns to seek out and arrest men having sex with other men.[16] In Dublin, from 1900 to 1920 only 18 men were arrested for same-sex sex crimes. During O’Duffy’s term as Garda Comissioner, from 1924-1931, 145 men were prosecuted for gross indecency or sodomy. In O’Duffy’s last year in the position of Commissioner, three of his officers entrapped gross indecency offenders with their own bodies. As suggested by the activities of DO Henry Coghlan, O’Duffy’s officers used any means necessary to detect and arrest gross indecency offenders.
Averill: Irish entrapment operations often involved several arranged meetings with a suspect, after a guard displayed the signals and body language of a sexual invitation—an elbow rub at the urinal, or the display of an erect penis—and even the committal of “acts of gross indecency” by the guards themselves. There were ten cases from 1927-36 in which a guard was the bait in the trap. Only half resulted in guilty verdicts, with two cases being thrown out entirely in 1933 and 1936 because the judge refused to prosecute. Judges and juries did not always feel comfortable with the idea that the guards were themselves involved in the crime committed. Like the debates that significantly reduced the London Met’s reliance on baiting homosexual offenders in the 1920s, the moral danger that these tactics created were too high a price to pay.
Sarah: Detective Officer Henry Coghlan was instructed by a superior officer, “Ennis,” to dress in plainclothes while on duty and patrol O’Connell Street on foot, seeking out individuals who may have been committing crimes. We don’t have a record of the exact orders Ennis gave, or if Coghlan was instructed to haunt specific locations–like public lavatorites–to catch specific kinds of criminal activity–like indecent exposure, or acts of gross indecency (sex between men). But according to Coghlan, he reported his conversation with the man from the lav to his superior officer, and was given special orders to follow through with the meeting on October 11. Where they met, the content of their first conversation, and even their parting words would all have suggested to both Coghlan and Ennis that this man from the lav was seeking a sexual encounter.
Averill: I think it’s safe to read this case as one in which Coghlan was walking the beat in plainclothes in 1927, looking for potential gross indecency offenders in Dublin’s public lavatories. While this may have been the end of an experimental period in US and UK policing history, giving way to a moral formalized, institutionalized, and regulated period of investigative policing behavior, in 1927 the Irish police force was only itself three years old. Though it made some big changes–new uniforms, disarming its members, and privileging the veterans of the war of Independence to fill out its ranks–it still operated largely in form and function as the Royal Irish Constabulary had. This new police force was also charged with overseeing the enforcement of independent Ireland’s values. As we discussed in our episode on the Dublin Castle Scandal, that included a pretty strict code of sexual morality. Gardai harassed sex workers until they were forced off the streets. Unwed mothers were forced to give up their babies, and women even suspected of having sexual thoughts were imprisoned arbitrarily in Magdalene laundries. Books and newspapers were heavily censored; any mention of women who practiced any kind of family limitation, or of same-sex desire, were put on the banned book list and prevented from circulating by mail. And of course men who sought sex with other men were watched, waited for, and entrapped, then sent off for up to two years imprisonment with hard labor.
Sarah: Henry Coghlan met with the man he met in the lav as arranged on October 11. Surprised that Coghlan had actually shown up, the man from the lav said, “It’s funny how one face knows another.” When Coghlan asked where they ought to go, the other man assured him that he knew of a “good place” at the back of the bank on Fleet Street, and they walked there together. As they walked, the man told Coghlan of other “good places” around Dublin, and of other men he’d “gone with.” When they arrived at the “good place”–a public lavatory on Fleet Street–the man unbuttoned Coghlan’s vest and pants and gave Coghlan’s penis a squeeze. The man pulled Coghlan close, caressed him, and then took off his own trousers and revealed his penis, saying “Isn’t that a fine big one? That may give you a horn. Look at that.” Coghlan did look, but then stepped back, trousers still open, and told the man that he was under arrest.[17]
Averill: What’s most shocking to me is the guard’s commitment to the ruse. Remember the SS officer in Germany in the 1940s, who arrested a man for simply brushing shoulders with him in a public urinal. Granted, 1927 Ireland was not 1942 Germany, for many, many reasons; but the homophobia and nationalist vigor that drove ordinary police like Coghlan and that SS officer were not that different. (And perhaps not unrelatedly, Commissioner O’Duffy, who trained men like Coghlan, was a bit of a fascist himself – after he was booted out of the Commissioner gig, he formed his own little Blue Shirt group, like the Italian Black Shirts or the German brown shirts, which ostensibly patrolled outside of Dublin Castle to protect “free speech” or some nonsense, but was really a show of force to let Eamon de Valera know that O’Duffy was not without his own resources. But I digress.) But still, the definition of “gross indecency” in Ireland was as vague as the day the British made the law in 1885–and really could have been interpreted as making a sexual pass in a public lavatory, with the right judge and jury. But Coghlan didn’t leave it up to chance. He made his body into a body of evidence.
Sarah: In a sense, guards like Coghlan put their bodies at risk, if not legally, then certainly morally. These were not deep undercover operatives infiltrating gangs or corrupt organizations where they might be asked to commit crimes in order to be accepted long enough to amass evidence. These were plainclothes officers instructed to walk the beat and root out gross indecency offenders. It is difficult to even compare them to plainclothes guards who might catch a drug dealer by purchasing drugs. A more apt comparison would be if the officer bought the drugs, took the drugs to make sure that they were drugs, and then arrested the drug dealer. Officers who baited same-sex desiring men into committing crimes thrust their own bodies into the sting. In a country founded on Catholic-nationalist ideals, and in a police force made up of 95% Catholic men, these tactics most certainly compromised the officers involved.
Averill: More importantly though, the admission of participation in these acts had the potential to undermine the authority of the guard. When giving testimony, DO Coghlan was questioned extensively about the details of the events that led to John Bodkin’s arrest. The defense attorney asked about their conversation the first night, whether Coghlan knew that the defendant was ill, and whether he led the defendant on with questions such as “when will we go,” and “at the back of the building we will pick up boys for a few pence.”[18] Coghlan was also asked if he put his arm around the man in the lav’s waist, whether he offered anal sex, and whether he was the one to suggest that Bodkin open his trousers and take out his penis—all implications that he denied, but which may have registered doubt in the minds of the judge and jury. By the standards of the time, Coghlan’s tactics were extreme and seemed an opening for the prosecution to find fault with the “evidence” of his testimony. Notably, the judge in the case, Cahir Davitt, who was typically notoriously harsh in his dealings with gross indecency offenders, permitted the defendant to pay £25 instead of serving his 12 months with hard labor sentence.[19]
Sarah: Coghlan was the first recorded detective to use those tactics, but he was not the last. In the ten entrapment cases, there were nine guards who were instructed to or chose to employ their bodies as sexual bait for gross indecency offences. DO “Michael Kearne” was the only officer who entrapped men twice in Irish history. It was a dangerous game to play, and as suggested in the long-term judicial outcomes, not particularly effective. There’s not much in the Irish court records to suggest that lawyers argued entrapment as a legal defense, but the judge and jury’s uneasiness with these cases seems to suggest a recognition of the moral and ethical concerns surrounding these cases. And those are uneasinesses that undoubtedly cross the minds of judges and juries in many of the cases involving “authorized deception” and “authorized crime.”
Averill: I envy the scholars of modern police, who get to interview the women assigned to go undercover as sex workers, or men assigned to arresting nude male exotic dancers — because we can get a sense of how they feel about being assigned to the “morality squads.” In my academic writing, I’m trying to pick apart the testimonies of these guards to get a sense of their motivations. Did they do it because they were believers? Did they do it because they were order-followers? Did they do it because they had a personal — and sexual interest — in that kind of work? I don’t know! I hope to someday stumble on Henry Coghlan or Michael Kearne’s personal papers or reports, to get a better look inside their motivations.
What we might conclude with here, though, is a consideration of what is “right” and “wrong” in modern policing. Like Coghlan and Kearne cruising for men who might make a sexual advance on them, our current policing system devotes a lot of resources to crime prevention through investigation and intelligence gathering. I know that most criminal justice reformers would argue that prevention needs to be effected outside the police organization – through social programming, education, investment in children, affordable housing, etcetera. We need to treat the root of crime, inequity, first and foremost. Like the London and Dublin metropolitan policing organizations that decided using officers as sexual bait was a morally and ethically problematic tactic, perhaps it is time for our contemporary policing organizations to reexamine the widespread use of authorized deception and authorized crime. Policing studies show the negative effect authorized deception has on the officers. So are these practices the most effective use of our resources? As demonstrated by the Irish and British cases, I think it’s always useful to be self-reflexive, to ask questions, and to demand reform when there are clear ethical problems with the status quo.
Sarah: One thing that occurs to me, I mentioned in the middle about how we know that police today, “Yeah, they’re not supposed to run their lights so that they can speed when there isn’t a legitimate reason but we know that they do.” And my dad worked in law enforcement, so he had like a special disdain for police officers who took themselves too seriously in this way. And I think that one thing that kind of occurred to me in Coghlan’s example, or any of these Irishmen who kind of took it upon themselves to go this far, it almost seems like guys who were just taking the task too seriously. Does that make sense? Like they were kind of like… I think power hungry is almost too simple a phrase, a way of putting it, but you know, kind of getting off on the power that they had over other people. And I think a significant amount of policing has to do with that. You know, it’s not just about “justice” but it also becomes about individual people and their ability to feel powerful.
Averill: Right. There’s almost like a vigilante justice but it’s within the authorized justice system, right?
Sarah: Yeah!
Averill: It’s like, “Oh, I’m Batman. But I’m also the other guy.” Whatever the police commissioner, Gordon.
Sarah: Exactly. Yeah, we had a conversation about this sort of same theme in terms of the military. In one of my classes recently [we discussed that] in both veteran circles but also now in police circles as well, in that like “Thin Blue Line” sort of community, there is a lot of Punisher iconography that police will put on to their cars or onto their uniforms, somehow patches that they will wear. And that’s exactly it. It’s a vigilante justice thing, right? It’s like, it’s “Me against the world of crime and it’s dangerous out there and that you need a rogue like me to protect you,” right? Which is not how the police or the military are supposed to function, right? And that kind of mentality is what I think, at least in some sense not not maybe the entire explanation, but that mentality is what leads to abuses of police power. So you mentioned Batman and I think that’s more accurate… I mean it’s kind of like a joking thing but I think that it’s actually pretty accurate.
Averill: Yeah, it’s definitely. I mean it’s like a psychological phenomenon that I think is in part because of the way that we frame, police as an organization, policing as a concept in America, and, you know, a lot of other places too, right? Where it’s essentially good versus evil mentality, and that creates this dichotomy of where the civilians are the potential enemies. And you are a soldier in a battlefield and you have to have like this close-knit “protect each other” kind of sentimentality within the unit. And that is, if it’s truly a organization that’s supposed to serve (that’s supposed to be the police force or the people as in the Irish case), then that can’t be the way that you approach, right? And I know that there’s some criminal justice, criminal law, criminology, and policing scholarship that argues that part of this is facilitated because we have this over reliance on technology, especially cars. Because when you’re walking a beat, when you’re actually walking through your neighborhoods and you know the people in your neighborhood and you get to know them and you’re not separated by this giant metal, death machine that might have armored plating or whatever….
Sarah: Your “Batmobile.”
Averill: Your “Batmobile,” right? Then you have a different relationship with your community whereas now we rely so heavily on police cars because there’s just too much area to cover or you want to have faster response times for emergencies. But it really makes the community versus the [police]. It creates a versus situation.
Sarah: Definitely, yeah. That makes me think, this is kind of a silly thing to think about but, you know when I was little if you were watching like Sesame Street, they would always say, “If something happens, go tell your local police officer. Go tell the police officer on the street.” And I was like, “What? What a police officer on my street?” Like you might see them. But it was always like, okay, the only police officers in my town were the state troopers and that was only because their barracks happened to be located in the next town over. And so we have this kind of like “Mayberry” vision in our minds that there are these good country cops out there, walking around in our neighborhoods, just ready to answer your questions and help you along or whatever. That’s really not accurate. As I pointed out, there’s a disconnect from local communities that these people police. And I know that there’s some police organizations that are working to change that and have different programs to try to change that. But I wonder too if there’s a way in which now the police officer that (if I was a kid today) I would go to. It would probably be a school resource officer now, right? Because there’s so many police in schools.
Averill: Right.
Sarah: So, maybe I don’t know. That’s a good and bad thing. It’s also a whole different can of worms.
Averill: Yeah, that’s a different kind of conversation, the need for police in schools and for children.
Sarah: Yeah, I think that this sort of zealous pursuit of crime creates the crime that you then get to boss. [It] does go hand in hand with the excessive use of force, because it’s about power and control. And again, my dad always used to complain (when my dad would vent about things he had like a standard list of things like, “Okay now we’re getting the this event.”) One of them was about how he always had to work with police officers or conservation officers who were obsessed with being able to take down a bad guy physically. So they were always doing these ridiculous trainings. And his phrase was always “So that we can learn how to kill people with our thumbs.” When you’re being trained with that kind of stuff, if you’ve learned how to kill someone with your thumb, ehhhhhh like the temptation is there to like use that skill now, right?
Averill: Yeah, absolutely. Some things to think about.
Sarah: Yeah, yeah, definitely.
Averill: I’m glad I got to do this episode because I needed to be thinking about this stuff for either my book or at least my next article.
Sarah: Yeah, absolutely. And in fact it’s stuff that I sort of have to start thinking about as well, the history of policing and history of crime too. And of course, all of this stuff is, as you’ve said several times, really relevant to the issues that we’re having today with policing and a reminder. A lot of people will try to make this into like “It’s a modern bad apples situation.” No, this is baked in the history of policing. This is how we have built this system. So if there’s going to be change, it can’t be removing the bad apples. It has to be systemic.
Averill: Yes, yes.
Sarah: On that note…
Averill: Thanks for listening!
Sarah: Be sure to follow us on Facebook and Twitter @dig_history. If you’re looking to bedazzle yourself in some epic Dig swag, visit our TeePublic store! Find the link to our Swag store, as well as transcripts and bibliographies for all of our episodes, at digpodcast.org.
Notes
[1] Deposition of Henry Coghlan, National Archives of Ireland, Dublin Circuit Court, State Files, Box #1C-96-36.
[2] Brendon Murphy, “Deceptive apparatus: Foucauldian perspectives on law, authorised crime and the rationalities of undercover investigation,” Griffith Law Review, 25:2 (2016), 223-244, 226.
[3] Murphy, “Deceptive apparatus,” 226.
[4] Murphy, “Deceptive apparatus,” 228.
[5] Gary Marx, Police Surveillance in America, (University of California Press, 1988) 169.
[6] Marx, Police Surveillance in America, 166-169.
[7] Stephen Robertson, “Harlem Undercover: Vice Investigators, Race, and Prostitution, 1910-1930,” Journal of Urban History, 35: 4 (May 2009) 486-504.
[8] Marx, Police Surveillance in America, 168.
[9] Michel Rey, “Parisian Homosexuals Create a Lifestyle, 1700-1750: The Police Archives,” in Tis Nature’s Fault: Unauthorized Sexuality during the Enlightenment, ed. Robbert Purks MacCubbin (Cambridge, 1987), pp. 179-91.
[10] William Peniston, Pederasts and others: urban culture and sexual identity in nineteenth century Paris, (New York: Harrington Park Press, 2004) 25-26.
[11] Matt Houlbrook, Queer London, 26-31
[12] John Borneman (ed.) Gay Voices from East Germany: Interviews by Jurgen Lemke (Bloomington: Indiana University Press, 1991) 33
[13] Lyle Dick, “The Queer Frontier: Male Same-sex Experience in Western Canada’s Settlement Era,” Journal of Canadian Studies/Revue d’études canadiennes, 48:1 (Winter 2014) 15-52.
[14] Murphy, “Deceptive apparatus,” 230.
[15] “Civic Guard Sergeant Sued,” Drogheda Independent, October 17, 1925, p5.
[16] See Maria Luddy, Prostitution and Irish Society, 1800-1940, and Morgan Denton, “Open Secrets: Prostitution and National Identity in Twentieth-Century Irish Society,” (State University of New York at Buffalo Dissertations, 2012).
[17] Deposition of Henry Coghlan, NAI, Dublin Circuit Court, State Files, Box #1C-96-36.
[18] Deposition of Henry Coghlan, NAI, Dublin Circuit Court, State Files, Box #1C-90-36.
[19] NAI, State Books, City and County of Dublin, Book 1C-94-15, 25 Oct 1927, the Attorney General vs John Bodkin.
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