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Queensland's Criminal Justice System and Homosexuality, 1860–1954

  • Clive Moore and Bryan Jamison

Extract

Contemporary Queensland has a flourishing GLBTIQ (gay, lesbian, bisexual, transgender, intersex and queer) scene which, although still suffering from discrimination in a society that is premised around a heterosexual norm, is a far cry from the years before 1990 when male homosexuality was a criminal offence. The queer generation has largely moved beyond binaries in gender and sexuality, and at dance parties there is a blending of cultures that knows few of the old boundaries. These new freedoms to express sexuality mean that relationships develop more easily with less fear of opprobrium. Classified advertisements in newspapers and on the internet, sex-on-premises venues and cybersex are all available to facilitate physical desires and as ways of meeting a possible future partner. Yet if one were to survey young gay men today, how many would know that between 1900 and 1990 a sodomy conviction could carry a prison sentence of up to 14 years with hard labour? Or that engaging in ‘gross indecency’ in public or private (usually oral sex or masturbation) could receive three years with hard labour? How many would know that the death penalty for sodomy was removed in 1865 or that between that year and 1899 the sentence for anal intercourse was 10 years to life imprisonment?

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Notes

1 An Act to Consolidate and Amend the Statute Law of Queensland Relating to Offences Against the Person, 29 Vic. No. 11 [1865]; An Act to Establish a Code of Criminal Law of 1899, 63 Vic. No. 9.

2 Moore, Clive, Sunshine and Rainbows: The Development of Gay and Lesbian Culture in Queensland (St Lucia: University of Queensland Press, 2001), 284.

3 Offences Against the Person Act 1861, 24/25 Vic. 100 cl. 61. Minor forms of homosexuality were regarded as a statutory offence under 24/25 Vic. C 100, cl. 62.

4 Only five Queensland cases were found from 1860 to 1865 under the old legislation. Two were for sodomy of a male, one for sodomy of a woman, and two for attempted sodomy of males. Only two sentences are extant, two years with hard labour and a death sentence for sodomy of the woman, which was commuted, the length of the eventual sentence unknown.

5 An Act to Consolidate and Amend the Statute Law of Queensland Relating to Offences Against the Person.

6 For the charge of carnal knowledge to be successful, penetration had to be proven.

7 This was the ‘Outrage on Decency,’ Section 11 of the Criminal Law Amendment Act 1885, relating to protection of women and girls, and the suppression of brothels.

8 Smith, F.B., ‘Labouchere's Amendment to the Criminal Law Amendment Bill’, Historical Studies 17(67) (1976): 165–75.

9 See Queensland's Criminal Law Amendment Act of 1891, 55 Vic. No. 24 [1891] and Criminal Code Act of 1899, Clause 211. The Labouchere amendment took even longer to be adopted in other Australian jurisdictions — for instance, not until 1919 in the State of Victoria. Adam Carr, ‘Policing the “Abominable Crime” in Nineteenth Century Victoria’, in David L. Phillips and Graham Willett (eds), Australia's Homosexual Histories: Gay and Lesbian Perspectives V (Sydney and Melbourne: Australian Centre for Lesbian and Gay Research and the Australian Lesbian and Gay Archives, 2000), 38–39.

10 Criminal Code Act of 1899.

11 Joyce, Roger B., Samuel Walker Griffith (St Lucia: University of Queensland Press, 1984).

12 The terms used at the time were usually Colonial Secretary or Chief Secretary, whereas Premier is the modern-day equivalent title. Refer to Joanne Scott, Ross Laurie, Bronwyn Stevens and Patrick Weller, The Engine of Government: The Queensland Premier's Department, 1859–2001 (St Lucia: University of Queensland Press, 2001).

13 Willett, Graham, ‘And the Last Shall be First: Law Reform in Queensland, Western Australia and Tasmania’, in Living Out Loud: A History of Gay and Lesbian Activism in Australia (Sydney: Allen & Unwin, 2000), 219–38; Clive Moore, ‘Gay Liberation, Law Reform and HIV/AIDS, 1970s–1980s’, in Sunshine and Rainbows, 161–89.

14 A more extensive version of this paper has been published: see Clive Moore and Bryan Jamison, ‘Making the Modern Australian Homosexual Male: Queensland's Criminal Justice System and Homosexual Offences, 1860–1954’, Crime, History & Societies 11(1) (2007): 2754.

15 Twenty-seven per cent were found not guilty and in 3 per cent of cases we could not establish a verdict.

16 Such sentences covered monetary fines, suspended sentences, being placed into state care, probation, medical treatment and release under their own recognisance. On occasion, a combination of two or more of the above constituted a sentence.

17 Goldman, L., Child Welfare in Nineteenth Century Queensland, 1865–1911, MQual thesis, Department of History, University of Queensland, 1978; G.M. Schofield, An Overview of the Methods of State Child Care in Queensland, 1864–1965, BSoc. Work thesis, University of Queensland, 1971.

18 There is no record of executions for sodomy in Queensland between 1814 and 1859, while the colony was still part of New South Wales, and none from 1859 to 1865 before capital punishment for the offence was removed from the statutes. This follows the pattern in Britain during the same period. Michael Sturma, Vice in a Vicious Society: Crime and Convicts in Mid-Nineteenth Century New South Wales (St Lucia: University of Queensland Press, 1983); R. Barber, ‘Capital Punishment in Queensland’, BA Hons thesis, Department of Government, University of Queensland, 1967; C. Emsley, Crime and Society in England, 1750–1900 (London & New York: Longman, 1996).

19 I am indebted to Yorick Smaal for providing these statistics.

20 Moore, Sunshine and Rainbows, 51–59.

21 Clause 11.

22 Halperin, D.M., ‘How to Do the History of Male Homosexuality’, GLQ: A Journal of Lesbian and Gay Studies 6(1)(2000): 110.

23 Moore, Sunshine and Rainbows, 93–94, 98–100.

24 Berube, A., ‘Marching to a Different Drummer: Lesbian and Gay GIs in World War II’, in Snitow, A., Stansell, C., Thompson, C. S. (eds), Powers of Desire: The Politics of Sexuality (New York: Monthly Review Press, c. 1983), 88–99; and A. Berube, Coming Out Under Fire: The History of Gay Men and Women in World War II (New York: Free Press, 1990).

25 Willett, Graham, ‘The Darkest Decade: Homophobia in 1950s Australia’, Australian Historical Studies 109 (1997): 120–32; Garry Wotherspoon, 'This Nest of Perverts’: Policing Male Homosexuality in Cold War Australia, Working Papers in Australian Studies, No. 32 (London: Sir Robert Menzies Centre for Australian Studies, 1990); Garry Wotherspoon, 'City of the Plain': History of a Gay Sub-Culture (Sydney: Hale & Iremonger, 1991), 109–38.

26 Willett, Graham, Living Out Loud: A History of Gay and Lesbian Activism in Australia (Sydney: Allen & Unwin, 2000).

27 Chauncey, George, Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890–1940 (New York: Basic Books, 1994), 1–13, 385, n 2.

Queensland's Criminal Justice System and Homosexuality, 1860–1954

  • Clive Moore and Bryan Jamison

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