BY DANIEL GAMBITSIS
In memory of Charles Aberhart
2017 has been another mixed year for LGBT+ rights. On the one hand, there have been LGBT+ rights victories such as the legalisation of gay marriage in Germany and its seemingly impending legalisation in Taiwan, the first country in Asia to do so. On the other hand, the Trump administration is hostile to LGBT+ rights (having removed White House guidance to schools on transgender students and ignored Pride month celebrations) and Putin’s authoritarian regime has merely ‘taken note’ of the killing of gay men in its Caucasus region of Chechnya despite a ‘massive anti-gay crackdown’.
New Zealand’s reluctant turnaround
Previously in New Zealand under the Criminal Records (Clean Slate) Act 2004, men convicted for gay sex could apply to have their convictions concealed in ‘most’ circumstances. There were major deficiencies with this system, which I explained in a previous article. This meant that the convictions were not actually removed, but simply hidden, and the men would have to confess to having a criminal record if one of the exceptions applied, and government departments and other bodies could disclose the ‘criminal’ record. In 2014, the Justice and Electoral Committee made various poorly-reasoned excuses for erasing convictions- such as that it would be wrong to re-write history.
In 2017, the Government has formally apologised to all gay and bisexual men convicted under New Zealand’s former anti-gay laws, which were repealed only very recently in 1986. The apology preceded the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill, which erases the “crimes” of these men for consensual gay sex.
Around living 1000 men are expected to be eligible, mostly convicted for ‘indecency between males’ (in addition to sodomy and keeping place of resort for homosexual acts). Justice Minister Amy Adams acknowledged the “hurt and stigma suffered by the men affected and their families. It is an acknowledgement that the laws were wrong and criminalised many innocent men”. All expungements will be determined on a case-by-case business by the Secretary of Justice to determine whether the “crime” would still be criminal today (such as sodomy with a minor or non-consensual sex). Applications may be made by family on behalf of deceased relatives. There is no need for a court proceeding or a personal appearance – as should be expected. A successful expungement means nit will be as if these men were never convicted.
As noted by Oscar Knightley, these convictions could have been expunged back when gay sex was decrminalised, but the part of the bill which planned to do so was defeated, and it was as if Parliament were saying: “Now it’s OK to be gay, but if you were caught being gay before, you’re still a criminal.” Expunging the convictions of the gay and bisexual men who were victims of these unjust laws is indubitably absolutely necessary. It is the best (though always insufficient) remedy for the stigma and ‘unimaginable suffering… self-denial, sham marriages, harassment and blackmail’ these men have experienced for these convictions, which still appear in criminal history checks.
Expunging the convictions of the gay and bisexual men who were victims of these unjust laws is indubitably absolutely necessary. It is the best (though always insufficient) remedy for the stigma and ‘unimaginable suffering… self-denial, sham marriages, harassment and blackmail’ these men have experienced for these convictions, which still appear in criminal history checks.
Arguments by some that an apology and the expungement of criminal convictions sets a dangerous precedent of Parliament having to apologise and retroactively pardon convictions for former crimes which could lead to demands for compensation are specious. Retrospective legislation is an anathema to the rule of law. Yet an apology harms no one, and costs nothing. I do argue that compensation is necessary. But the pain and suffering caused by state-sanctioned homophobia, in addition to the pervasive social discrimination cultivated over centuries and with the complicity of religion, means there is no comparison with the stigma suffered by those convicted of consuming cannabis or bearing unregistered firearms. Sometimes equal treatment requires differential treatment to achieve real equality.
I criticized the previous ‘concealment’ scheme because it compels men to relive the suffering caused by their convictions by forcing them to discuss their convictions and have their convictions publicly known as they must apply for their records to be expunged. The expungement system offers a better remedy, but suffers from the same problem of forcing individual men to come forth and relive their shame. For example, the scheme puts the burden to provide supporting information on the applicant.
It would be preferable for the Government to actually put in the effort to individually examine cases of its own accord and expunge those convictions which were for consensual gay sex. This would avoid the pitfalls associated with a blanket pardon for gay sex convictions, which could only be achieved if it included only consensual gay sex between men of legal age. However, as noted by Adams, at times it might still be necessary for men to come forward to provide information as they may be the primary source of information. This would depend on the amount of information held by the Government on such convictions.
Thus while the expungement system is superior to the shameful ‘concealment’ system previously available to the victims of our anti-gay laws, a broader pardon for all consensual gay sex or a system whereby Parliament appointed a team to investigate all gay sex convictions to sift out all consensual ones and to remove those convictions without the men concerned having to do anything (including if they are deceased), would be preferable to the new system.
The “Expungement Bill” expressly rules out compensation in cl 22. Nonetheless, there is a compelling case for compensation, in addition to the formal apology. As veteran gay rights activist Bill Logan observes that men’s lives were devastated: they could not get real jobs, and if they ended up in jail they had to start at the bottom of the social pyramid. Added to this is the suffering caused by the rampant homophobia and the stigma of the criminality, which led to suicide for many. The police entrapped gay and bisexual men (rather than actual criminals like murderers and rapists), neighbours would report men, and parents would even report their own gay sons, claiming they had been seduced by predatory homosexuals. Gay men ended up in jail, thrown in with genuine criminals. MP Grant Robertson recounted a story about a gay man who was kicked out of his army career and consequently struggled to find employment for decades, although Robertson then declined to support compensation. Our own dishonorable Prime Minister Muldoon shamefully accused an MP of homosexuality for his “effeminate giggles” and accused him of having been subjected to police questioning. This ruined Moyle’s political career.
There is always money to bail out failing banks, but not in cases like this, involving an actual “social debt”.
Prime Minister Bill English claimed that there would be no compensation because the men were not wrongfully convicted, as these convictions were legitimate law at the time. Deputy Prime Minister Paula Bennett, who has not personally been convicted for gay sex, exclaimed that she was “not sure compensation [was] actually going to make [things] any better”. She offered this consolation: “New Zealand should be ‘in the moment for them'”. Bill Logan astutely observes that there is always money to bail out failing banks, but not in cases like this, involving an actual “social debt”. Even if the convictions were legitimate at the time (and arguably they never were), this does not discount the massive ramifications of the convictions, which compensation could help to deal with. Although it is true that compensation will never correct the indelible scars of discrimination, it demonstrates that society is attempting to make amends and cares for all its members, and it may make a genuine difference in some cases.
Although it is true that compensation will never correct the indelible scars of discrimination, it demonstrates that society is attempting to make amends and cares for all its members, and it may make a genuine difference in some cases.
In comparison, Germany’s scheme for pardoning gay and bisexual men is far superior. During the lifetime of Germany’s anti-gay sex law, approximately 140,000 men were persecuted. 5000 men still live of the 64000 convicted since 1945. In Germany, like here, the convictions were not lifted after decriminalisation. Germany’s justice minister rightly acknowledged that ‘the burden of guilt lies with the state’ and that although there is clearly no way to ever fully right the wrongs committed, individual men should not have to request their own expungement, and instead there would be a blanket annulment and a compensation fund. It will amount to €3000 for each survivor and €1500 per year in jail, and each case for compensation will be individually assessed. The fund will amount to €30m. Where victims had died, compensation could be paid in the form of financing for educational programmes promoting tolerance. This approach may be termed “collective rehabilitation”.
Germany’s model should be followed in New Zealand. That there are so many more victims of Germany’s anti-gay laws and that this has not prevented Germany from instituting a compensation fund and a blanket annulment points to the inadequacy of our own system and the weakness of the arguments against these measures. Although English and Bennet framed their objections in non-economic terms, I do not for a moment doubt that they baulk at the potential cost for their precious budget and recognise the potential unpopularity of such a policy of compensation as an underlying objection. But Germany’s example demonstrates exactly how economically feasible this morally necessary step is.
What is to be done?
Homophobia is still rampant in New Zealand. Winston Peters is the only one of the MPs who was around at the time of the vote on decriminalising gay sex who voted to keep it illegal. In other areas, our LGBT+ population suffers discrimination, threats to their rights and a lower livelihood, such as a lack of inclusion of gender expression/gender identity/intersex status in the Human Rights Act, a higher youth suicide rate (note the frequent use of ‘gay’, ‘fag’ and ‘homo’ as commonplace insults), homelessness, increased HIV infection rates (although this affects the entire population), among other issues.
In terms of righting the wrongs caused by convictions for gay sex, the individual expungement process is superior to the previous ‘concealment’ regime, but it is not the best solution. As Germany’s scheme illustrates, compensation is economically possible and necessary and there are alternative schemes which might not require individuals to have to relive their shame in order to find their peace. The usual excuses about economics in our steadfastly neoliberal economic regime simply do not hold water.
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 “Germany gay marriage approved by MPs in snap vote” (30 June 2017) BBC < http://www.bbc.com/news/world-europe-40441712>.
 Nicola Smith “Taiwan’s’ same-sex marriage ruling could cement its place as Asia’s liberal beacon” (22 May 2017) The Guardian < https://www.theguardian.com/world/2017/may/22/taiwans-same-sex-marriage-court-ruling-asias-liberal-beacon>.
 Valery Matytsin “The Kremlin’Notes’ Fresh Allegations of Chechnya Killings” (10 July 2017) The Moscow Times https://themoscowtimes.com/news/Kremlin-notes-new-allegations-chechnya-killings-58348.
 Criminal Records (Clean Slate) Act 2004, s 3(1).
 Daniel Gambitsis “Cross-Examination: The Persecution Game – Historic Convictions for Homosexual Conduct” The Equal Justice Project http://equaljusticeproject.co.nz/2015/06/cross-examination-the-persecution-game-pardoning-historic-convictions-for-same-sex-intercourse/#_ftn15.
 Criminal Records (Clean Slate) Act, s 19.
 Gambitsis, above n 6.
 Amy Adams “Apology to men convicted of historical homosexual offences “ (6 July 2017) Scoop Parliament <http://www.scoop.co.nz/stories/PA1707/S00103/apology-to-men-convicted-of-historical-homosexual-offences.htm>.
 “Government apologises for historic homosexual convictions” (6 July 2017) Gay Express http://www.gayexpress.co.nz/2017/07/government-apologises-historic-homosexual-convictions/.
 Henry Cooke “Calls for gay men convicted for homosexuality to be compensated” (9 February 2017) Stuff http://www.stuff.co.nz/national/89252874/Calls-for-gay-men-convicted-for-homosexuality-to-be-compensated.
 Above n 10.
 Oscar Kightley “Oscar Kightley: The wrong’s righted, now for the reparations” (9 July 2017) Stiff https://www.stuff.co.nz/national/politics/94529508/oscar-kightley-the-wrongs-righted-now-for-the-reparations.
 Adams, above n 9.
 Kightley, above n 13.
 David Farrar “Homosexual convictions bill introduced” (29 June 2017) Kiwiblog http://www.kiwiblog.co.nz/2017/06/homosexual_convictions_bill_introduced.html.
 Bhikhu C. Parekh “Rethinking multiculturalism: cultural diversity and political theory” (2nd ed, Palgrave Macmillan, 2005)at 3.
 Adams, above n 9.
 Cooke, above n 11.
 Adams, above n 9.
 Criminal Records (Expungement Convictions for Historical Homosexual Offences) Bill 2017 (274-1), cl 22.
 Above n 11.
 Above n 11.
 Dan Satherley “Gay convictions: No compensation under Labour either” (7 July 2017) Newshub http://www.newshub.co.nz/home/politics/2017/07/gay-convictions-no-compensation-under-labour-either.html.
 Barry Soper “The Soap Box: Govt apology 30 years overdue” (6 July 2017) Newstalk ZB http://www.newstalkzb.co.nz/opinion/the-soap-box-govt-apology-30-years-overdue/.
 Satherley, above n 25.
 Above n 25.
 Cooke, above n 11.
 Kate Connolly “Germany to quash historical convictions of gay men” (11 May 2016) The Guardian https://www.theguardian.com/world/2016/may/11/germany-quash-historical-convictions-gay-men-criminalised-law.
 Susannah Cullinane and Andreas Preuss “Germany to quash convictions for homosexuality, pay compensation” (24 June 2017) CNN http://edition.cnn.com/2017/06/24/europe/germany-anti-gay-law/index.html.
 Connolly, above n 30.
 Caroline Mortimer “Herman government to pay €30m in compensation to gay men convicted under historical sex laws” (10 October 2016) Independent http://www.independent.co.uk/news/world/europe/germany-compensation-to-gay-men-convicted-historical-sex-laws-lgbt-rights-homophobia-a7353111.html.
 Above n 24.
 Connolly, above n 30.
 Connolly, above n 30.
 Satherley, above n 25.
 “Intersex Roundtable Report 2016” Human Rights Commission https://www.hrc.co.nz/files/5914/8124/9497/HRC_Intersex_Roundtable.pdf.
 Steve Gray “What Are The Real Issues Facing The Gay Community in New Zealand?” (16 April 2013) The Daily Blog https://thedailyblog.co.nz/2013/04/16/what-are-the-real-issues-facing-the-gay-community-in-new-zealand/.