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.”
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.
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”.
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.
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.