Criminal Convictions for Consensual Sex

Imagine a world in which you could be convicted of a crime merely for having sex with another consenting adult. It sounds like the sadistic, dystopian construct of a fictional fanatical regime, but the fact is it’s reality for people in (at last count) 76 countries today. In Mauritania, Sudan, Iran, Saudi Arabia, Yemen and some parts of Nigeria and Somalia you can even be executed for it.

So what is it that distinguishes this criminal sex from the legal sexual encounters which occur every day and which are none of a Government’s business? It is simply that the participants happen to be of the same gender.

This is a clear example of the sort of directly discriminatory law which is no longer permitted in Australia. I say no longer, because until 1997 (!) gay sex was still illegal in Tasmania. South Australia and the ACT decriminalised it in the 1970s. Victoria, the NT, NSW and WA followed in the 1980s. In 1984, after years of debate in the Medical Journal of Australia, the Australian Medical Association declared that homosexuality was no longer an illness or disorder. However, the Queensland and Tasmanian branches opposed that move. Queensland finally got with the program in 1990.

Tasmania was so recalcitrant that a complaint to the UN Human Rights Committee in 1991 (decided in 1994) prompted the Commonwealth Government to pass the Human Rights (Sexual Conduct) Act 1994 (Cth), overriding the Tasmanian law by providing:

Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights.

As it happens, this 22 year-old law is the last example of the Commonwealth Government taking legislative action to fix state laws or practices which are inconsistent with international human rights law. Ever since, it has defended them – even the most egregious ones (warning; graphic content behind link).

So you’re probably thinking, ‘thanks for the history lesson, but it’s all OK now isn’t it?’ Well no, because there are still some gay men in our community who have criminal records due to convictions for consensual sex. This means they can face trouble in applying for certain jobs, including medical professional, teacher, lawyer, police officer, security and prison guard. It can even prevent people from adopting a child or getting an entry visa for a foreign country. Since 2012, there has been a concerted effort to right this ongoing discrimination against men based on their sexual orientation (which is contrary to Australia’s obligations under the International Covenant on Civil and Political Rights as well as other treaties). It follows the example set by the UK.

The campaign calls for the expungement of these historical gay sex offences (ie for them to be ‘stricken from the record’). So far, legislation has been passed to achieve this (by various legal methods) in South Australia, NSW, Victoria and (most recently) the ACT. The legislative changes kicked off when a number of groups, including the Castan Centre, began calling for the righting of this historical wrong in 2012.LGBTI Qld Report

The Queensland Government, after a false start in 2012, asked its Law Reform Commission to consider how it can best be done in that state in January this year. The Castan Centre just made a submission to the Review, and recommendations are due by the end of August. There is also an excellent background paper on the historical treatment of homosexual sex in Queensland from the LGBTI Legal Service. It makes for horrifying but compelling reading – particularly the police’s ‘enthusiastic’ pursuit of gay men, which apparently included sending officers to known ‘beats’ posing as gay to draw others into committing offences. People were even arrested  for having sex in their own homes, if they mentioned it in the presence of police.

Some have argued that, if we are expunging convictions for gay sex offences, the floodgates will open and everyone who has been convicted of an act which has since been decriminalised will want the same treatment. Apart from the fallacy of the ‘slippery slope argument’ (also, incidentally, employed by opponents of same-sex marriage), the UK Home Office looked into this issue in 2010 and decided that the special nature of gay sex convictions (for victimless crimes of an inherently discriminatory nature) justified expungement.

The campaign will now focus on WA, the NT and Tasmania. Rodney Croome, spokesperson for the Tasmanian Gay and Lesbian Rights Group, said in 2014:

We can fairly confidently predict that there are more men in Tasmania who have convictions than any other state. And of course the convictions make it hard for them to obtain employment, housing, and in some cases it has wrecked their lives.

Luckily, in contrast to the state’s attitude in the 1980s and 90s, there seems to be bipartisan support for expungement in Tasmania today. There is even support for an apology, which has not occurred in other jurisdictions, though Victoria is planning one.

The Castan Centre urges the jurisdictions which have not yet done so to expunge historical gay sex convictions. There is now a wealth of background material on the best way to do it, including how to examine each case so that privacy is maintained, and convictions for non-consensual encounters are ineligible.

3 responses to “Criminal Convictions for Consensual Sex”

  1. A minor point: the Tasmanian pre-1997 ban wasn’t expressly about ‘gay sex’, but rather ‘sexual intercourse against the order of nature’. The law was not limited to same-sex sex and indeed, expressly used the term ‘him or her’ when including in the prohibition people who ‘consent’ to others having such sex with them. It was understood as at least extending to both straight and gay anal sex.

    I imagine no straight people were prosecuted, though the illegality of straight oral sex was relied upon by the defence in a well-known Tasmanian homicide case (Stingel), as providing the ‘wrongful[ness]’ that Tasmania’s then criminal law required to found a defence of provocation (unsuccessfully raised by Stingel when he killed a 19 year-old man who he supposedly discovered having consensual oral sex with Stingel’s 17 year-old girlfriend.) The Tasmanian Supreme Court ruled that the Tasmanian prohibition didn’t extend to straight or gay oral sex: The High Court didn’t consider this issue when dismissing Stingel’s appeal to the High Court.

    Just a minor point, but it does point to the complexity of identifying past homophobic laws and disentangling homophobic and non-homophobic past applications of those laws (and perhaps the need to redress more than just homohpobia.)

    • Yes, thanks Jeremy. The material has been simplified for the blog. There were also specific prohibitions on lesbian sex in some jurisdictions, although I haven’t seen any relevant prosecutions mentioned.

      The process of determining eligible convictions (as noted in the LGBTI Legal Service paper linked above) in indeed complex for the nominted administrators of these schemes. Apart from being an important exercise for restoring rights, it is definitely interesting from a public law point of view.

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