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Sunday 13 November 2016

Historic Offences: The Case for Erasure

Posted in: Comment
By Craig Young - 12th December 2015

Justice Minister Amy Adams has said that there is insufficient evidence to suggest that New Zealand should follow the lead of several overseas jurisdictions and erase Department of Justice criminal records that produced convictions for private, consensual adult gay sex before the passage of the Homosexual Law Reform Act in 1986. But is she correct?

This legislation would be a modest and incremental change. It is intended to benefit older gay men who might want to apply for philanthropic voluntary work and who have such blemishes on their criminal record. Victoria, New South Wales, South Australia, the Australian Capital Territory and the United Kingdom have all approved such legislation, so why shouldn't we? In the case of the United Kingdom, as the Stonewall UK website notes, the highly unsatisfactory Sexual Offences Act 1967 only partially decriminalised male homosexuality, so gay men were still arrested and convicted under such legislation as "gross indecency" legislation that caught any other (consensual) gay sexual acts outside anal sex (Section 11 of the Sexual Offences Act 1956), "loitering with intent" (cruising) (Section 18 of the Vagrancy Act 1824) and military-related gay sex. Under the Blair administration's Sexual Offences Act 2003, these 'offences" were removed. After 2012, if gay men needed to expunge their previous criminal records, they could use the Protection of Freedoms Act 2012. Before gay sex was decriminalised in New Zealand after passage of the Homosexual Law Reform Act in 1986, gay men could potentially face conviction under what were previously Sections 140-142 of the Crimes Act 1961. The current Criminal Records (Clean Slate) Act 2005 does provide an opportunity for doing this, although affected gay men will have to go through the rigmarole of having to apply to the District Court to have their prior criminal records erased.

It should be noted that the minister is quite right when she says that consensual gay sex acts that are still criminal offences will not be removed from an individuals criminal record, given that Section 27 of the Summary Offences Act 1981 and Section 125 of the Crimes Act 1961 still criminalise 'indecent exposure'- al fresco sex between men in areas such as public lavatories, beach cruising areas, and elsewhere where they might be seen. Certainly, that is a legitimate concern, although it does seem disproportionate and excessive that a single conviction under misdemeanour and public nuisance legislation should permanently bar someone from altruistic responsibilities within a community legislation, especially if individuals caught under such a heading were doing their deed mostly concealed from the public gaze. I also accept that individuals guilty of male same-sex rape and pedophile sex with children and young adolescents should be barred from voluntary association committee membership given the gravity of their offending, although the same should be true of those guilty of corresponding criminal offences against female children and young adolescents. But in practice, are terribly manystraightmen apprehended and convicted of sex with girls just under sixteen, and shouldn't that threshold area be treated differently from whatareoffences against younger children?

Strongly Recommended:

Victoria: Sentencing Amendment (Historic Homosexual Offences Expungement) Act 2014: au/au/legis/vi c/bill/sahceb2014i855/

New South Wales: Criminal Records Amendment (Historic Homosexual Offences) Bill 2014:http://www.parliament. nswbills.nsf/ 131a07fa4b8a041cca256e610012de 17 / 861eaf4a40f06eafca257d55002bce 70/$FILE/16493800.pdf/b2014- 112-d04-House.pdf

South Australia: Spent Convictions (Decriminalised Offences) Amendment Act 2013: au /au/legis/sa/bill/ scoab2013488/

Australian Capital Territory: Spent Convictions (Historic Homosexual Offences) Extinguishment Amendment Act 2015: http://www.legislation.act. gov. au/a/2015-45/20151107-62281/ pdf/2015-45.pdf

Disregarding Certain Criminal Convictions: Chapter 4 Part 5 Protection of Freedoms Act 2012: Application Form and Guidance Note for Applicants: uk/government/uploads/system /uploads/attachment_data/file/ 118140/guidance-application. pdf

Craig Young - 12th December 2015

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