spinofflive
Photo: Getty Images / Design: Archi Banal
Photo: Getty Images / Design: Archi Banal

SocietyApril 10, 2022

What kind of queer sex was illegal in New Zealand before 1986?

Photo: Getty Images / Design: Archi Banal
Photo: Getty Images / Design: Archi Banal

The Homosexual Law Reform Act 1986 decriminalised sex for a lot of queer New Zealanders – but what exactly did (and didn’t) the old laws cover?

This article is part of a series marking 50 years of gay liberation in Aotearoa. Click here to read more.

On a summer night in 1888, Joseph Fletcher and Jacob Crawford left the Empire Hotel in Ōamaru together and strolled to the town’s public garden. They found a secluded spot among some trees behind a prickly hedge and lay on a blanket Joseph had in his swag, sharing a bottle of beer before whipping their trousers off and getting down to business:

Joseph: “Did you have a drink? All right you young bugger we’ll have a fuck then too.”

Jacob: “All right, put it up my bloody arse Joe.”

[Joseph proceeds.]

Jacob: “You’re hurting me Joe, that’s not my bloody arse, you know it’s not.”

Joseph: “I can’t do it, did you ever have a bit before you young bugger. I have fucked a mate of mine, and he fucked me, it’s a cunt you have got you young bugger.”

Jacob: “No it’s a bloody prick.”

Joseph: “You have got a little prick but you have got a cunt too.”

Jacob: “You are hurting me Joe, will you let me up to have a drink.”

[They give up.]

There’s a lot to notice about this comically dismal attempt at sex between two consenting adults, recorded for posterity in Chris Brickell’s ground-breaking book Mates & Lovers: A History of Gay New Zealand: its bluntly transactional nature, the casual misogyny inherent in “cunt” as an insult and the time-honoured use of booze as a way of breaking the ice and then putting an end to a failed fumbling. But there’s a bigger story behind this vignette. The reason we know about Joseph and Jacob is because they were covertly followed by a police officer called Terence O’Brien, who documented their interaction in his bobby’s notebook. He may have followed them because he suspected they were vagrants, people with no visible means of support and thus deemed to be idle and disorderly (a criminal offence), but he arrested them for attempted buggery, to use the parlance of the time.

Photographer Robert Gant documented the lives of queer men in late-19th century NZ (Photo: Alexander Turnbull Library / natlib.govt.nz/records/23115988)

Attempted or actual buggery was a criminal offence, and had been since the signing of Ti Tiriti o Waitangi in 1840 led to the adoption of English laws in Aotearoa. Buggery meant either sodomy (anal sexual intercourse between humans), or bestiality (sexual intercourse with animals). In Joseph and Jacob’s day, a conviction for buggery could attract a jail sentence from anywhere between 10 years and life, while those convicted of attempted buggery could expect between three and 10 years, with hard labour thrown in. It didn’t matter in the eyes of the law that they were consenting adults. Anal penetration was understood as an inherently “unnatural act” and criminalised on this basis.

Other forms of sexual activity between men, such as oral sex and mutual masturbation, were not legally unnatural acts at this time, though they still attracted social disapprobation. That is why the English missionary William Yate, who was kicked out of the Church Missionary Society (CMS) in 1837 after engaging (with consent) in these pleasures with many Ngāpuhi youths whom he was supposed to be converting to Christianity, was never convicted of any criminal offences, much to the vexation of the CMS. As the official British Resident James Busby put it, “the unhappy man . . . was not rising to the full extent of the Crime which human laws have made penal, or which called down in times of old the divine wrath — It is this — that it did not take place per anum [‘by way of the anus’] but it would appear merely by the instrumentality of the thighs”. 

Men photographed by Robert Gant in NZ in the 1880s. (Photo: Alexander Turnbull Library / natlib.govt.nz/records/22380975)

The legal pleasure of the thighs was not to last. In 1893 any sexual act between men was made a “crime against morality”, with non-penetrative acts becoming indecent assault, while flogging and whipping were added to the repertoire of punishments. In reality, there was a significant gap between the law on paper and its application, and conviction rates for gay sex were low compared to other sexual offences. Police action was usually the result of complaints from members of the public, though as the case of Joseph and Jacob shows, beady-eyed police officers on the beat were well placed to catch male couples (or anyone for that matter) who risked sex in a public place. The law was nevertheless chilling and prejudicial and societal condemnation real. Men who were convicted, or even simply charged, could expect to have their names published in newspapers, adding to their humiliation.

Auckland Star, 21 May 1919, p.6

So far, so male. In Aotearoa as in Britain, sex acts between women were never criminalised. A story once circulated that lesbians never made it into British criminal statutes because Queen Victoria didn’t believe that women could have sex with each other, a myth repeated by some gay liberation activists here. Christians had in fact been panicking about lesbian sex for centuries. Nearly 1,700 years ago, Paul the Apostle warned the Romans about “women perverting the natural use of their sex by unnatural acts” (i.e. by having sex with each other). In 423 CE Augustine of Hippo told nuns not to “shamefully frolic or sport with one another”, while the 13th century theologian Thomas Aquinas included lesbian sex in one of his four categories of unnatural vice. 

To cut a long story short, women had sex with each other, which men over the ages took it upon themselves to condemn, but 19th century British lawmakers ignored this fact when criminalising all gay sex acts, while their early 20th century counterparts did not want to legislate for fear of promoting lesbian sex as an option for women. Aotearoa lawmakers first acknowledged lesbian sex in 1961, when it became an offence for a woman over 21 to engage in sexual activity with a girl under 16. Failure to legislate against lesbian sex to the same extent as gay sex did not indicate tacit acceptance; rather it indicated a sexist inability to acknowledge active female, and female-centered, sexuality. Clearly, having your consensual adult sex acts largely ignored in law was hardly a bad thing, but neither does it mean that lesbians were left alone to live their authentic lives. 

Penalties for gay sex were reduced as the 20th century wore on. Flogging was tossed out in 1941 and hard labour in 1954. The maximum penalty for sodomy dropped from 10 years to seven in 1961. Prison sentences for the likes of oral sex were much reduced, now three to six months instead of three to four years, with a high likelihood of fines or suspended sentences rather than jail time. Seemingly counterintuitively, arrests shot up in the 1950s and 60s as police pursued men with increased vigour, regularly patrolling public toilets (“bogs”) and other public sex-on-site venues with the express purpose of catching them having sex. This was in line with an increased focus on sexual offending in general, as arrests for all types, particularly men having sex with under-age girls, increased dramatically in this period. There is a world of difference, though, between under-age sex and sex between consenting adults.

The injustice of this fundamental inequity and the pall it cast upon all queer and gender non-conforming people was at the heart of law reform and gay liberation movements. The hard-won Homosexual Law Reform Act 1986, a short statute of eight sections, was in the end pretty simple: “An Act to amend the Crimes Act 1961 by removing criminal sanctions against consensual homosexual conduct between males, and by consequently amending the law relating to consensual anal intercourse.” Anal sex was now only an offence when one of the parties was under 16 or “severely subnormal”. Much of the detail of the act was taken up with provisions relating to under-age sex, and sections of the 1961 act that dealt with indecencies between men and boys were amended by the substitution of “every one” for men. Interestingly, the section that dealt with indecencies between women and girls was not repealed until 2005.

Today, sexual offending is gender-neutral and based on consent and age, with specific provisions dealing with incest and other family connections, and impaired people. If consenting men over 16 want to privately explore the instrumentality of the thighs and other bodily delights, the law rightly has no interest.

Keep going!
Sunday Essay Munro te Whata Feature image

The Sunday EssayApril 10, 2022

The Sunday Essay: On the frontline

Sunday Essay Munro te Whata Feature image

Emma Espiner on the ceaselessness of this pandemic.

The Sunday Essay is made possible thanks to the support of Creative New Zealand

Original illustrations by Munro Te Whata

I don’t know what it’s like to be a doctor in a non-Covid world. I was in my final year of medical school in 2020 when the first wave hit and we’ve been surfing it ever since. This week a patient coughed into the face of a colleague and we didn’t even flinch behind our respirator masks and goggles. The thought of doing this ward round pre-Covid without masks makes me vomit a little in my mouth.

Anyone who works in healthcare and can hold a pen has been approached to write a frontline account of the pandemic. The frontline! What is happening on the frontline?! People expect to sit in on every major national and international event like it’s reality TV.

Three years in, we doom-scroll in our sleep, everyone has anxiety and, prior to Russia invading Ukraine, there has only been this one story looping endlessly. It feels impossible to plan ahead. Our aspirations have congealed in the face of unceasing uncertainty. Our hearts and minds are brittle from over-exposure to social media, lurching from condemnation of the confused muddle of protestors soiling parliament’s lawns, to hero worship of the improbably good-looking Ukrainians defending their homes from Putin’s megalomania.

Sometimes the television news has an update on our hospital before the communications team sends an update to my inbox announcing the latest “this is fine” angle on the pandemic. I get home from work and try to massage my N-95 ravaged face back into its normal shape and see Michael Morrah standing outside the door I just exited on the 6pm news. People send me messages saying they’re thinking of me on the frontline, and I feel like a fraud because this sucks for everyone, and we aren’t routinely thanking anyone else for their sacrifice, for just doing their job, or simply surviving while the world disintegrates around them.

Right now we’re circling the drain, held together by bonus payments, good will and a refusal to let our colleagues and patients down. What happens afterwards? When the bonus payments dry up, the nurses act on their promises to resign and move to Australia, when the allied healthcare staff remember they withdrew their strike and worked harder, for scant additional recognition, and they resign too? Whoever remains standing after all that will be faced with a mountain of catch-up work.

While undoubtedly an acute and significant threat, Covid has done nothing more than expose the threadbare korowai of our health system for what it really is: neglected infrastructure that wasn’t coping anyway.

Late in 2020, at a Māori doctors’ hui, Dr Rawiri Jansen spoke with a group of us in Tāmaki Makaurau. He warned us that it wasn’t over, that another outbreak was imminent. I remember the urgency conveyed by him and other Māori clinicians, warning of the invisible menace looming post-Covid from the lag in elective operations, cancer screening, childhood immunisations, even seemingly tangential problems like the ability to get driver’s licences that stop people, especially people on low incomes, accessing the necessities of life and work opportunities. They talked themselves hoarse on the inevitable inequity of the Covid-19 vaccination rollout for Māori if steps weren’t urgently taken to target the programme to our people. They said this to us in the meeting room at Turuki Healthcare in Māngere and went on to say it repeatedly in other meeting rooms, in the media, to anyone who would listen.

Our Māori doctors’ prescience and future-focus at that hui sticks like a RAT in my throat. Because, despite our depression, fatigue and boredom, we need to think about the future. There is a dark side to every heart-warming story of colleagues stepping up and taking on extra shifts, helping out where they can, papering over omicron-sized cracks in our services and donating to vaccination initiatives for rural Māori communities. The pending fallout relates to the complete lack of redundancy in our health system. It would be foolish to perceive the current issues as relating only to the pandemic, to consider them temporary and imminently reversible. At the end of omicron, there will be an entire health system to staff, and only exhausted, stretched employees to call upon. There will be inequities which weren’t fixed by delayed care, but entrenched and worsened. Who will have the energy to attend to this?

In this context we are also being reminded that healthcare doesn’t exist in a vacuum. Both major political parties are pivoting to respond to the truism that every election is fought on the battleground of the economy. The 2023 general election shimmers on the horizon, backlit by poll results promising an edgy contest in which nobody will be able to take anything for granted. In recent weeks Labour and National have, in tandem, swung to talking about the cost of living, inflation, petrol and benefits instead of rapid antigen tests, the team of five million and the minutiae of the global vaccine supply chain. The predictions of a recession are creeping across the economic-punditry landscape, nudging the high-level political narrative from Covid to post-Covid even when we’re still in the throes of the thing.

I contacted our rostering administrator last week, told her I was exhausted and asked to cover a different set of shifts over the weekend. She said I was needed on nights, and she couldn’t give me any extra days off, but that she’d reduce one of my 14-hour shifts the following week to an eight-hour shift. I was pathetically grateful for the reprieve. We are watching the decline of operations, clinic appointments and procedures due to staffing shortages, participating in the rationalisation of care, and we know that the delayed care doesn’t disappear, but joins a growing landfill to be dealt with later, by us. “Can the human body feel preemptively tired?” I type into Google while waiting in line for a coffee.

“The Build Back Better Plan is Dead” announced Forbes magazine in March. They were talking about Joe Biden’s disaster recovery plan for America, which dissuaded me from using the line here. Instead I think we simply have to see the post-Covid response as non-negotiable, in the same way that we saw the Covid response as such. The opportunity to learn from the mistakes made during the pandemic is too significant to ignore, particularly when it comes to equity. For years, Māori health experts have tried to explain the consequences of the inequitable provision of healthcare – in the broadest sense of the term – without having a shared understanding with the team of five million. It was easy for people to not know what was happening for Māori, and from a state of ignorance it is only a short walk to indifference. Now we have a common experience and, with the benefit of wall-to-wall, second-by-second real-time coverage of the pandemic, eyes with which to see the effects of our health inequities.

Māori death rates are higher than Pākehā, our people have gotten sicker. The vaccine rates lagged as central bureaucrats scrambled to get resources to the Māori health providers doing the heavy lifting with bugger all support in the early days, our younger age profile and higher comorbidity rates were brushed off as unimportant; the results of these decisions are laid bare in the grim accounting currently underway. You can overlay this stencil of inequity cut from the gaps in our health system onto almost any other health issue experienced by Māori historically and find the same patterns and outcomes. You will also find clinicians and researchers screaming their evidence and outrage at the injustice into the void down the generations. Surely this will be the last time our experts go unheeded.

The promise of the Māori Health Authority is simply that courageous decision-making will happen. That such decision making is evidence-based and just is without question; we have collectively proven this beyond even the most pointy-headed of critiques. There is no credibility in calls for “more evidence” on equity. The highly optimistic idea that getting rid of the DHBs will solve everything (or anything) means far less to me in looking forward, than the opportunity we have with our best advocates in position at their own table at the Māori Health Authority.

They will not go unopposed. To some extent this is helpful – we’re none of us immune from making mistakes and thoughtful scrutiny should always be welcome. Less helpful is the proximity of the general election; we have already seen the Act Party leading out a proposed referendum on co-governance between Māori and the Crown, claiming unity through erasure of difference like countless others before them. They will not be alone in characterising equity as oppression and there are, sadly, always votes in it.

In the hospital where I work, we have looked after those hardest hit by Covid, an unwelcome trophy that has everything to do with the inequities we’ve been ignoring for decades in housing, employment, the food environment and the provision of health care. Looking ahead to next year we could do worse than look at our options through the lens of health and equity; even to those for whom economic concerns are paramount, surely they can recognise productivity tends to struggle without a healthy population, and dead people can’t buy your products.

Dr Espiner writes in a personal capacity and does not speak on behalf of any district health board or hospital.


Love The Sunday Essay series? Be sure to check out The Sunday Essay postcard set over in The Spinoff shop. The set includes 10 original illustrations from the series with insight from the artists. 

But wait there's more!