Salient. Victoria University Students Newspaper. Vol. 38, No. 2. March 11, 1975
Last July the Crimes Amendment Bill was introduced into Parliament. Its most important aim was to legalise homosexual acts commuted in private between consenting males of 21 years or over. Further, it extends provisions relating to heterosexual prostitution to cover homosexual prostitution.
Almost all Bills (especially controversial ones) that eventually become law are introduced by the government as government policy. However, in June last year the Labour Government revealed the tenuous nature of its claim to stand for social justice when, after 18 months of negotiations with people pressing for homosexual law reform, it refused to sponsor any measure to relieve the legal oppression of homosexuals, because of the damage it feared this would cause to party unity. Consequently, the Crimes Amendment Bill is a private member's bill sponsored by the National Party MP for Egmont, Venn Young.
The Bill was sent to a special select committee (chaired by Dr Michael Bassett) for study and submission were invited from the public. NZUSA and the VUW Law Faculty Club made a 32 page joint submission, prepared by NZUSA General Vice President John Blincoe and Law Faculty Club President Michael Okkerse. It was heard by the committee in late February.
General Philosophical Position
At the outset NZUSA.(hereafter meaning also the Law Faculty Club) stated its general philosophical attitude to the laws governing sexual behaviour.
We support the principle of legal equality between people regardless of their sexual preferences, and we believe that all sexually discriminatory legislation must he removed. In particular, we believe that there should be a common code governing sexual behaviour for male and female, in which objectively similar types of sexual behaviour, whether homosexual or heterosexual, are treated consistently.
We believe that individuals' sexual preferences are matters of private morality, unless they can he clearly shown to have significantly harmful effects for other people. Only then can it be contemplated that they should become the subject of criminal sanctions.
The function of the criminal law is to prescribe those activities that fall outside the the maximum level of social toleration and which thereby threaten the society's existence. Clearly, behaviour that violates the person of another human being or exploits his or her weaknesses or which is fraudulent cannot be tolerated, whether or not it is connected with sexuality. The central issue raised by the present Bill is whether or not private homosexual behaviour falls outside the maximum level of social toleration, thereby becoming a threat to society's very existence. We submit that it does not but falls within the 'realm of private morality which is . . . not the law's business.'
The Submission's Approach
NZUSA did not present detailed evidence as to the nature or causes of homosexuality because other submissions had dealt with this in great detail. The committee was referred particularly to the submissions made by Gay Liberation groups throughout the country. The NZUSA submission concerned itself mainly with the mechanics of rewriting the legislation to incorporate the general principles that had been outlined.
The submission pointed out that while the Bill was an important step towards equality and social justice by making present sanctions against male homosexual behaviour much less repressive, if preserved a number of serious anomalies in the present law both in relation to homosexuality and to sexual offending as a whole. Perhaps the most obvious was that while the present law recognised an age of consent of 16 for female homosexual relations, as the Bill stood the age of consent for male homosexual relations would be 21.
The submission recognised that the scope of the Bill was limited and that the Committee might feel restricted in the changes it could recommend. The submission therefore took a dual approach. Firstly, the present Bill was redrafted to incorporate a number of amendments which NZUSA believed were well within the competence of the Committee to make. Secondly, the submission outlined in detail the kind of common code that was desirable in terms of a reform of the whole Sexual Offences part of the Crimes Act, which was presently fraught with inconsistencies and anomalies. It was stressed however, that if the adoption of such a code were not possible at this stage that the need for reform of the male homosexual area of the law was so urgent that the present Bill (with the amendments suggested) should be passed into law without delay.
The Present Bill
- opposed the proposed increase in penalty from 10 years to 14 years' imprisonment for the sexual molestation of a male under 16 by a male over 21 and further suggested that the penalty be reduced to seven years to be consistent with the penalty for sexually molesting females under 16.
- advocated that the age of consent for homosexual acts between males be lowered to 16 years, consistent with that for females.
- urged that sodomy be no longer an offence except where it was forced upon either male or female (i.e. rape) or where performed by a person over 16 on a person under 16. (At present sodomy per se is an offence, even for example, between a consenting husband and wife.)
- urged the repeal of section 146 of the Crimes Act. Section 146 makes it an illegal for a landlord or occupier of premises to allow them to be used as 'a place of resort' for homosexual acts. While it is claimed that section 146 is intended to apply only to homosexual brothels it is framed so widely that it could possibly be used against couples engaging in homosexual activity within the privacy of their own homes. As such it causes homosexuals a great deal of worry. NZUSA contended that the real offence that ought to be attacked should be brothel-keeping, whether heterosexual or homosexual. The submission therefore suggested that section 147, which covers heterosexual brothel-keeping, be extended to cover homosexual brothel-keeping.
A Common Code
The proposed common code of sexual behaviour in the Sexual Offences part of the Crimes Act (sections 127 to 149) was constructed by modifying the present provisions governing sexual behaviour. The changes suggested to the Crimes Amendment Bill were incorporated. The submission noted that NZUSA might not necessarily agree with all the assumptions underlying present provisions. It could for instance be argued that the age of consent should be lowered. NZUSA also expressed grave doubts as to the utility of the present penalties for sexual offences, especially imprisonment. However, the appropriate time to review penalties and the assumptions underlying various categories of sexual offences would be once the concept of a common code had been accepted.
The main effect of the common code outlined in the submission would be that for each offence (e.g. indecent assault) the same penalties and conditions would apply to both heterosexual and homosexual situations, which would involve the creation of some new offences. The language of the proposed code is 'de-sexed' (i.e. the word 'person' is used rather than 'male' and 'female'), and sections which presently deal separately with homosexual offences are consolidated into the sections dealing with heterosexual offences. The overall effect of adopting such a code would be to simplify and rationalise what is presently confusing and inconsistent area of the criminal law.
Some of the effects of changes suggested would be
- females would be made liable for sexual offences upon males (at present there is no such liability).
- the offence of rape would be extended to cover both homosexual and heterosexual rape and females would be made liable for rape.
- a husband would be liable for both sodomitical and vaginal rape of his wife (at present he is liable only for sodomitical rape.)
Finally, NZUSA referred to the anti-Gay Liberation statements made in Parliament when the Crimes Amendment Bill was introduced, and declared itself totally opposed to any law that sought specifically to restrict Gay Liberation activities. Such repression would be contrary to the spirit of the Bill and would set an extremely dangerous, precedent for political and social censorship.
Comments by John Blincoe
- Nearly 150 submissions were made. Of these about 30 had oral hearings, the last of which was NZUSAs.
- We weren't very happy with our hearing. We made it clear to the committee that we wanted to talk about what was in our submission rather than what had already been very well covered in other submissions. However, on member insisted on cross-examining us at length on matters that had already been covered, and this led to a heated exchange between the chairman and the member concerned. Quite interesting since they were both Labour members.
- The committee will probably report the Bill back to the House in April. The more progressive members of the committee seem keen to deal with it urgently so that it doesn't become an election issue or get lost in the mass of legislation that will be coming up this Parliamentary session.
- I think the Bill will he passed in some form. At its hearings the committee seemed quite unsympathetic to the bigots who opposed reform-such as the Society for the Protection of Community Standards-and the overwhelming weight of evidence favoured reform. It would be politically stupid for that to be ignored by the Bill being shelved.
- I think that the Bill when it is eventually passed will be more progressive than it is at the moment. Parliamentary attitudes to reform seem to have improved significantly since last July when the Bill was introduced. The clause increasing the penalty for child-molestation will probably go. It was a bit of nonsense put in to placate reactionary opinion, but even the Society to Protect Community Standards didn't support it. Also, the age of consent will probably come down, Many submissions other than ours-and even the Justice Department's-favoured 16 and I think it will at least come down to 18. If progressive changes aren't made, the committee will make a farce of its own proceedings.
- The main restraint to progressive reform of sexual laws seems to me to be the fear of a conservative back-lash, a fear which I think Parliamentarians greatly exaggerate. There is probably considerable sympathy for the kind of objective code of sexual behaviour that we have suggested because it makes such good sense. But so long as Parliamentarians are more concerned with losing votes than with legislating for social justice, such a code won't happen and the fight for rational sexual laws will continue.