Kris
Gledhill, Auckland
University of Technology
Significant
developments in social history sometimes happen through law
reform. Arguably, New Zealand’s most significant example
is that it was the first country to pass
legislation to grant all women the right to vote, in
1893.
Often, however, New Zealand was not first but
a slow follower.
Homosexual law reform is an
example of the latter. Forty years ago, on July 9 1986, the
House of Representatives passed – narrowly – the Homosexual
Law Reform Act 1986.
It broadly legalised
consensual sexual practices between men, as well as
consensual anal sex regardless of the partners’ gender. It
essentially removed the criminal law from a private space
where people expressed their sexuality and love.
But it would take decades for the government to
recognise that the previous law required an apology to those
convicted, and even today issues
remain.
History of homosexual law
reform
Criminalisation went back to the start of
governance of New Zealand by the Crown. At first, English
law came across, and then New Zealand began to pass its own
statutes.
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The Offences
Against the Person Act 1867 set life imprisonment for
“the unnatural offence”, which covered any form of anal
intercourse and also bestiality. Similar offences were
re-enacted in the Criminal Code Act 1893 and the Crimes Act
1908.
New Zealand’s main criminal statute now is
the Crimes
Act 1961. In its original text, what had become called
sodomy remained criminal. The maximum sentence was 14 years
if it involved a woman or someone under the age of consent.
The maximum was seven years for consenting male adults; they
could also face five years for other sexual activity.
Offences in other statutes included loitering in a
public place in a way that suggested the person was about to
commit an imprisonable offence. Ironically, before the
homosexual law reform, police officers would themselves
loiter in places where homosexual men might meet and arrest
them.
The 1986 reform decriminalised consensual
anal intercourse – subject, naturally, to the age of
consent being respected and with protection for those
without capacity to consent. Other forms of male homosexual
activity could now occur without the risk of arrest. Female
homosexual activity wasn’t mentioned because it had never
been criminal.
Celebration and
reflection
Most people will likely celebrate the
decision by legislators to remove the criminal law from a
private matter. But it is worth reflecting on how the reform
was both late and partial.
Equivalent reforms took
place in the United Kingdom in 1967 as part of the social
change of the 1960s. New Zealand was a generation behind.
Also, the original bill introduced into parliament in 1985
proposed to make it illegal to discriminate against someone
on the basis of their sexual orientation. This did not pass.
As a result, the criminal law was removed from
male homosexuality, but discrimination based on sexual
orientation – affecting not just gay men – remained
permissible. This was despite the fact that 1985 also marked
the publication of a white paper that eventually led to the
New Zealand Bill of Rights Act 1990.
Discrimination on the basis of sexual orientation
was prohibited some years later in the Human Rights Act
1993. Civil unions were permitted in 2005 and, eventually,
an amendment to the legal definition of marriage allowed
same-sex marriage. The latter was supported
by some on the conservative side of politics.
But what of those who were convicted under the old
law? The Criminal
Records (Clean Slate) Act 2004 required old convictions
to be revealed in some circumstances.
Some argued
an old conviction under an abandoned law still involved
breaking the law at the time. But this is not good enough in
relation to a law that was not only anachronistic but wrong.
Eventually, a law was passed in 2018 to expunge convictions
for historical homosexual offences – the Criminal
Records (Expungement of Convictions for Historical
Homosexual Offences) Act 2018.
Again, New
Zealand was a follower rather than a leader. The UK and most
Australian states had already passed similar
legislation.
The 2018 act started its passage
through parliament in 2017, introduced by National Minister
of Justice Amy Adams and accompanied by an apology to those
who had been convicted. It marked an official acceptance
that the old law was improper by modern
standards.
Those convicted between 1908 and 1986
can apply to have their convictions expunged. An application
can be made on behalf of a dead person, but not one
convicted under legislation prior to 1908.
This
reveals another limitation. Given the importance of
ancestors in New Zealand society, why not go back before
1908? The UK legislation covers convictions going back to a
statute in 1553.
Other concerns include that
convictions under the commonly used loitering provisions
cannot be expunged. Also, applicants have to prove their
actions would not be criminal today, for example for reasons
of consent. This seems a presumption of guilt unless
innocence can be shown, even though it was the state that
brought the charge.
The expungement is only for the
purposes of New Zealand law. Technically, it does not cover
things like visa applications abroad. It also expressly
prohibits anyone from seeking compensation, despite the
apology in 2017 that the state should never have acted as it
did.
So yes, let’s celebrate the 40th anniversary
of the homosexual law reform, but let’s also acknowledge
there are still issues to address.
Kris
Gledhill, Professor of Law, Auckland
University of Technology
This
article is republished from The Conversation
under a Creative Commons license. Read the original
article.
