Is homosexuality an offence?

The Government is created by the people, for the people, who make the laws that reflect the societies views of right and wrong. As views of society change, so should the law to reflect the same. This is Parliamentary democracy.

Before 1984, consensual gay sex between men was a criminal offence in NSW. In fact it carried terms of imprisonment.

Prior to 1984, section 79 Crimes Act 1900 stated, “whosoever commits the abominable crime of buggery, or bestiality, with mankind, or with any animal, shall be liable to penal servitude for life, or any term not less than 5 years.” “buggery” is referred to as anal penetration.

Prior to 1984, section 81 Crimes Act 1900 stated, “whomsoever commits an indecent assault upon a male person of whatever age, with or without consent of such person, shall be liable to penal servitude for 5 years.”

Some of the other controversial offences that existed prior to 1984 under the then Crimes Act NSW legislation carrying terms of imprisonment include the following:

  • Attempted Buggery (s80)
  • Buggery (s79)
  • Act of Indecency with another male person (or procuring) (s81A)
  • Indecent Assault on a male (s81)
  • Homosexual intercourse with a male over the relevant age (s78K)
  • Attempt or assault with intent to have homosexual intercourse with a male over the relevant age (s78L)
  • Acts of indecency with a male person under 18 (s78Q)
  • Indecent behaviour or behaving in an indecent or offensive manner involving sexual activity with another person of the same sex, or procuring another person of the same sex to engage in sexual activity (s12 Police Offences Act 1901, s7 Summary Offences Act 1970)
  • Exposure or an indecent act committed by an adult, indecent exposure or wilful and obscene exposure if the offence involved engaging in a form of sexual activity with a person of the same sex, and the offence was not witnessed by anyone except the other person engaged in the sexual activity or a police officer, and it was the offender’s first conviction for the offence. (S43(b), s11 Summary Offences Act 1970, s78 Police Offences Act 1901, s4(2)(d) Vagrancy Act 1902).

What is “indecent assault”?

Assault includes placing your hands on another person without his or her consent or where you don’t care whether or not that person does consent. While an act of indecency is involves an act that has a sexual connotation to it which offends against currently accepted standards of indecency. This includes an act which right minded people would consider to be against community standards of decency.

Prior to 1984, people were charged and found guilty to those “offences”. This resulted in some going to prison, while others avoiding prison but receiving criminal convictions against their names. As you can imagine, this created problems for those convicted in obtaining employment, volunteering and travelling overseas.

Decriminalisation of homosexuality in NSW

Fortunately, as community minds changed, in fact, so did the laws to reflect this. Homosexuality was decriminalised in NSW in 1984. Unfortunately, this didn’t resolve the problem faced to those who were convicted and punished for those decriminalised offences, considered as ‘sex’ offences effecting their ability to gain employment and travel.

Extinguishment of historical homosexual convictions

The Criminal Records Act 1991 (NSW) was changed on 24 November 2014 allowing people with an eligible historical homosexual conviction to apply to the secretary of the Department of Justice to have that conviction extinguished. Some of the conditions of this is where the conviction can only be considered for extinguishment if the other person had consented to the sexual activity, and was above the age of consent.

The current law

While, it is not an offence in NSW, to have consensual sexual intercourse or touch someone in an area which suggests a sexual connotation (indecent assault) i.e. Touching the breasts or genital area. It is an offence to do this without the other persons consent, or where the other person (alleged victim) is under the legal age. Where the other person is under the legal age, it is still an offence regardless of whether he or she consented.

What is the legal age for sexual intercourse?

Section 66C Crimes Act 1900 (NSW) prohibits sexual intercourse with a child between the age of 10, but less than 16 years of age. This offence carries a maximum punishment of up to 16 years imprisonment if the victim was between 10-14 years of age, while a maximum punishment of up to 10 years imprisonment if the victim child was between 14-16 years of age.

In NSW, it is only an offence to have sexual intercourse with a child between 16-18 years of age if the child was in your ‘special care’. ‘Special care’ means circumstances you were the child’s teacher, parent, guardian, health professional or a personal relationship with the child in a religious, musical or sporting context.

What is consent for sexual intercourse?

Consent is where the other person allows you to engage in the sexual intercourse. However, in a criminal trial involving allegations of sexual intercourse, sometimes it gets very difficult to determine whether or not there was consent. It sometimes tries to determine this by considering whether or not you knew there was no consent. Sometimes, consent can be inferred from the persons behaviour.

How the court determines whether you knew there was no consent?

The law says that you are considered to have known that the victim did not consent if:

  • You knew he or she didn’t consent; or
  • You didn’t care whether or not the victim consented; or
  • You were aware the victim may not be consenting, you were not sure, but you continued anyway; or
  • You didn’t even think about whether or not the victim consented

Can the alleged victim’s past sexual conduct be used in court against him or her?

As a general rule, the alleged victim’s past sexual experience or behaviour cannot be used in court against him or her except for certain situations.

Under s293 Criminal Procedure Act 1986 (NSW) the allege victim’s past sexual behaviour could be used against him or her in court in the following kinds of situations:

  • Where the alleged victim’s sexual activity occurred very closely in time to the alleged sexual assault against you, and in that situation it could be argued that it forms part of a connected set of circumstances of the alleged offence against you.
  • If you and the alleged victim were in a relationship that existed at the time, or around the time of the alleged sexual assault allegation against you.

From the decriminalisation of homosexuality in 1984, and then the extinguishment of those historical homosexual convictions in 2014, all came about as societies views changed. Although it took a long time, it nonetheless reflects the parliamentary democracy.

Arguably, it is now time for other laws to change and reflect current societies views. Some such instances include same sex marriage which have been legalised in other places of the world.

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About Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Australia's Leading Criminal Defence Lawyers, Delivering Exceptional Results in all Australian Courts.

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