Cross-Examination: The Persecution Game – Historic Convictions for Homosexual Conduct

The decriminalisation of homosexual conduct in 1986 represented a triumph for equal justice. Nearly thirty years later, however, men prosecuted under the previous laws still have convictions marked against their name. Though these convictions can be concealed, hundreds of New Zealanders are still labelled as criminals for, in many cases, nothing more than having sex with another consenting adult. Today, Content Contributor Daniel Gambitsis asks why this label still adheres, and how best it might be removed.

With the recent release of the film “The Imitation Game” about the life of the gay mathematician Alan Turing, there have been renewed calls for the pardoning of all 49,000 men similarly convicted for “gross indecency” under the laws formerly criminalising male homosexual conduct in Britain.[1] With Turing credited as having significantly shortened the Second World War by cracking the German Enigma code, it was unsurprising that there was widespread support for his posthumous pardon, which was awarded in 2013.[2] Whilst Turing’s pardon was generally welcomed, it was a source of disquiet that although Turing, as a famous figure, was pardoned, the fifteen thousand or so other men still living with the same conviction were not pardoned.[3] In response, the Conservative Party has since pledged to introduce a mass pardon for all men convcicted under the UK’s homophobic legislation.[4]

In New Zealand, there have been similar calls for both an official apology to the gay community and the mass-pardoning of men convicted under New Zealand’s anti-gay legislation. The current situation, whereby convictions for homosexual conduct can be conealed, is considered insufficient to make amends for the shame caused by these historic and unjust convictions. The main arguments against a mass-pardon consider the cost and practicality of such a large undertaking and the law’s aversion to retroactive legislation.

In New Zealand, men were prosecuted under ss 140-142 Crimes Act 1961 under laws against homosexual indecency, which were inherited from England’s laws against “gross indecency”. Originally, sodomy was punishable by a term ranging from ten years to life imprisonment under the Offences Against the Person Act 1867 (NZ). From 1893 sodomy was punishable by life imprisonment with hard labour, while indecency between males would bring up to ten years hard labour, in addition to flogging or whipping. The punishments were reduced for both crimes in 1961 to seven years for sodomy and five years for homosexual indecency.[5] Sex between women was never criminalised, though lesbians still suffered social discrimination. The Homosexual Law Reform Act was passed in 1986, decriminalising male same-sex intercourse and equalising the age of consent for homosexual and heterosexual intercourse.[6]

antigaylegislationhistoricnz

Sections 136-37 Criminal Code Act 1893

While the Ministry of Justice has never stated the total number of men convicted of homosexual conduct between 1867 to 1986, it has catalogued 879 convictions from 1980 to 1986 .[7] Last year activist Wiremu Demchick organised a petition gathering signatures to have the gay sex convictions pardoned and for an official apology to be given for the historic persecution of gays in New Zealand. This petition concerned only convictions for consensual acts and acts which are now legal.[8] Thus cases of sexual assault, indecent assault and sexual violation should not be covered by any mass-pardon. Although they should remain on the criminal records, they should be re-designated in the equivalent gender neutral provisions of the current Crimes Act which have been available since the passing of several amendments to promote equality before the law and recognise the difference between consenting same-sex relations and non-consenting acts.

New Zealand never “mass-wiped” the convictions.[9] Under the current scheme, men convicted for gay sex can have their conviction omitted. GayNZ states that the Criminal Records (Clean Slate) Act 2004 “doesn’t automatically conceal sexual offences from someone’s record”, but applications can be made to a District Court to have the conviction “disregarded”.[10]

The Clean Slate Act enables individuals to limit the effect of their convictions, on the condition that they have satisfied the relevant criteria”.[11] The person is considered “to have no criminal record for the purposes of any question asked of him or her about his or her criminal record”.[12] It is to be noted that this method was intended to accommodate the need to conceal gay sex convictions prior to 1986 and prostitution related convictions prior to 2003.[13] The Act deals with gay sex convictions specifically in section 9(b), which provides that

an individual… may make an application to a District Court for an order under subsection (2) if-

(b) that offence has subsequently been abolished and the act that constituted the abolished offence no longer constitutes an offence.

However, this process only conceals these convictions – it does not erase them altogether.[14] The Justice and Electoral Committee has stated its view that having the option of expunging convictions would be overly time-consuming as it would have to work on a case-by-case basis. Furthermore, it cites the cost and practical difficulty of removing all evidence of convictions from the individual’s criminal record, which appears on case files, computer records, and other files in the hands of a number of government agencies.. The commentary states that this would be problematic where it would be justifiable to provide records (for example, where someone re-offended) and states an aversion to “re-writing history”.[15] The argument that the concealment as opposed to the expunging of historic convictions would help in cases of re-offending may be valid for other criminal offences. However, this would arguably not be relevant with regards to convictions regarding consensual homosexual sex between adult males; seeing as it would be deeply odious to suggest that someone who was once convicted of engaging in consensual intercourse with another adult should have that count against them if ever again before the courts.

Furthermore, the Clean Slate Act, like its UK equivalent the Protection of Freedom Act 2012, can only address the living; failing to address the cases of those who have died.[16] The current UK legislation has not been met with much success since its inception. This has been blamed on a lack of publicity and a burdensome application process.[17] With the UK moving to address the failure of the Protection of Freedom Act 2012, New Zealand should re-examine its own inadequate system.

With the UK moving to address the failure of the Protection of Freedom Act 2012, New Zealand should re-examine its own inadequate system.

Although Mr Demchick’s petition failed to gain momentum, there would be merit in this course of action of pardoning. He cites the stigma suffered by those convicted under the previous legislation who had to endure years of secrecy and of ‘serious risk of prosecution’.[18] Some men may still be apprehensive about approaching a District Court for this procedure, having imbibed a culture of gay-shaming. Furthermore, a mass-pardoning would honour the dead who suffered under gay sex laws. The number would be significantly higher than 879 cases given the history of homophobic legislation; even having taking account of those convictions which would still be offenses.

The convictions may have a detrimental effect on the men’s mental health, career choices, overseas travel and volunteering opportunities where jobs prohibit those with convictions from participating.[19] Furthermore, these convictions may, if discovered, place gay men at risk in travelling to countries that still criminalise same-sex intecourse. It is understandable that the Ministry could not provide the total number of convictions from a period of 119 years. Human rights activist Peter Tatchell approximated the figure of 50,000 men convicted under England and Wales’ own indecency laws, but as this concerned a much larger system and a significantly greater number of cases and victims the number could be much higher and it is accepted that this figure is imprecise.[20]

The current Justice Minister of New Zealand, Amy Adams, said she is ‘open to resuming talks on the subject’ but expressed the reservation that mass-pardoning could prove problematic considering that it would involve retroactive consideration of offenses. She claimed it would not be possible to achieve such a mass-pardoning ‘broadly’ as some offenses still remain offenses today.[21] Moreover, it has been argued that a pardoning would only be a symbolic act which does not actually address the current problems facing the LGBT community or help the dead who were convicted. The lack of success of the current UK regime may also indicate that the effort and expense of these systems of redress is not worthwhile, although a mass-pardoning would remove the process of individual applications for concealment.

In anticipation of the Justice Minister’s claim, supporters of such a mass-pardoning such as Mr Demchick have clarified that only convictions involving consenting adults would be pardoned.[22] Taking into account offenses which were non-consensual and this would remain on the books, supporters of the mass-pardoning estimate that the previous figure of 879 may be rounded down to the ballpark figure of approximately 400 convictions given information obtained through the Official Information Act.[23] Unlike in the UK where the age of consent for gay sex was not equalized at the same time as gay sex was legalised, in New Zealand this was the case, so there is no issue of whether charges for sexual acts on what were considered minors but would not be today should be reclassified or pardoned.

It is noted that the majority of these convictions were meted out in the last decades prior to 1986, so many of those convicted would still be alive. [24] There is greater impetus for a mass-pardoning while these men live, although their passing should not delay or arrest the process simply because they are no longer alive.

The reluctance to engage in retroactive consideration of past offenses is understandable in the sense of wanting to preserve the law’s certainty and the rule of law, an argument endorsed by the former Justice Minister of the United Kingdom. Responding to the calls for the pardoning of Mr Turing, Lord McNally stated:

“A posthumous pardon was not considered appropriate as Alan Turing was properly convicted of what at the time was a criminal offence. He would have known that his offence was against the law and that he would be prosecuted. It is tragic that Alan Turing was convicted of an offence which now seems both cruel and absurd – particularly poignant given his outstanding contribution to the war effort. However, the law at the time required a prosecution and, as such, long-standing policy has been to accept that such convictions took place and, rather than trying to alter the historical context and to put right what cannot be put right, ensure instead that we never again return to those times.” [25]

In the context of Britain this argument accords with the precedent of R v Secretary of State for the Home Department ex parte Bentley in which the court held that pardons are only granted in cases of miscarriage of justice and not in order to let someone have a “fresh-start”.[26] Hence, as the law stated Turing was guilty of “gross indecency” and he was correctly prosecuted, there is no case for a pardon. This argument, although in accordance with precedent and the letter of the law, fails to recognise the case where a discriminatory act was decriminalised and where the group targeted suffered and continues to suffer deep-rooted discrimination. The ‘flood-gates’ argument, that pardoning one group for now tolerated actions while many others have suffered under laws which formerly targeted them, ignores the persistent and pervasive discrimination against the LGBT community. A mass-pardoning would be a testament to society’s conviction to make right the wrongs of the past and instil a new sense of respect for the LGBT community.

In New Zealand, the Royal prerogative of mercy is exercised by the Governor General on behalf of the Queen. It functions the same way as the British Royal pardon in that it can only be used where someone is wrongly convicted or sentenced.[27] There may also be fears on the part of the government of demands for monetary compensation.

In New Zealand, a formal apology has previously been used as a means to apologise to a community that was historically unfairly persecuted, for example when the government apologised for historic discrimination against Chinese and Samoan immigrant communities and several Iwi.[28] New Zealand has a history of attempts at reconciliation within the community, most notably in the Waitangi Tribunal which seeks to redress historical injustices towards the Maori people. That there has been redress in the form of awarding significant monetary reparation and land transfers in many cases decades after land confiscations to Iwi demonstrates that it is a poor excuse that pardoning would be too costly or time-consuming, given the extent of ongoing redress in other areas. The gay community is a community like any other and is equally deserving of such recognition, even if the LGBT community is less organised, visible or tightly-knit as comparable ethnic and religious minority groups.

In New Zealand, a formal apology has previously been used as a means to apologise to a community that was historically unfairly persecuted … The gay community is a community like any other and is equally deserving of such recognition, even if the LGBT community is less organised, visible or tightly-knit as comparable ethnic and religious minority groups.

Thus, simply ‘concealing’ historic convictions for offenses that society now considers to be the right of consenting adults to engage in is insufficient. A mass-pardon would acknowledge the injustice committed and end the enduring stigma. A culture of reconciliation in New Zealand attests to a willingness to make amends and shows that where there is determination. Issues of time constraints and expense do not form an indomitable barrier to redress. Pardons for now decriminalised actions should not be the reserve of figures with the historical significance and the celebrity to justify the time and effort.

[1] Katie Engelhart “Alan Turing’s Family Wants Britain to Pardon All 49,000 Gay Men Convicted of ‘Gross Indecency’” (26 February 2015) Vice News <https://news.vice.com>.

[2] Engelhart, above n 1.

[3] Engelhart, above n 1.

[4] “UK: Conservatives pledge full gay pardons” (15 April 2015) Gaynz <http://www.gaynz.com>.

[5] Greg Newbold Crime in New Zealand (Dunmore Press, Palmerston North, 2000) at 89-91.

[6] “Criminal Code against homosexuals, 1983” (1 July 2014) NZ History <http://www.nzhistory.net.nz>.

[7] Shane Cowlishaw “Push to wipe homosexual convictions” Stuff <http://www.stuff.co.nz/national/crime/10682591/Push-to-wipe-homosexual-convictions>.

[8] “Frequently asked questions” (2014, 2015) The Campaign to Pardon Gays in Aotearoa <http://www.pardon.nz>.

[9] “Final day to post pardon petitions” GayNZ <http://www.gaynz.com/articles/publish/2/article_16483.php>.

[10] “Final day to post pardon petitions”, above n 8.

[11] Criminal Records (Clean Slate) Bill (183-2) (commentary) at 1.

[12] At 1.

[13] At 16.

[14] At 2.

[15] At 9.

[16] Matthew Holehouse “Ed Miliband proposes ‘Turing’s Law’ to ‘pardon’ convicted gay men” The Telegraph <http://www.telegraph.co.uk>.

[17] Cahal Milmo “Exclusive: Plan ‘failing’ to clear criminal records of gay men” (2 March 2014) The Independent <http://www.independent.co.uk>.

[18] “Campaign to pardon convicted gay men” Radio New Zealand <http://www.radionz.co.nz>.

[19] Paula Gerber and Katie O’Byrne “Should gay men still be labelled criminals?” (2013) 38 AltLJ 82 at 84.

[20] ”Pardon all convicted gay men, not just Alan Turing” (2 February 2015) Peter Tatchell Foundation <http://www.petertatchellfoundation.org>.

[21] Cowlishaw, above n 4.

[22] “Frequently asked questions”, above n 8.

[23] “Frequently asked questions”, above n 8.

[24] “Frequently asked questions”, above n 8.

[25] Martin Wainwright “Government rejects a pardon for computer genius Alan Turing” (7 February 2012) The Guardian <http://www.theguardian.com>.

[26] Nassau Hedron “The Turing Pardon: Why Lord McNally was right, but is still entirely wrong” (11 February 2012) The Turing Centenary <https://theturingcentenary.wordpress.com>.

[27] “The Royal Prerogative of Mercy” The Governor-General < https://gg.govt.nz>.

[28] “Campaign to pardon convicted gay men”, above n 16.

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