Setting the scene - homosexual law reform

Background to reform

There is a long history of opposition to sexual activity between men and an equally long history of legislation that criminalised this activity. New Zealand took its cue from English social and legal traditions.

Sex between men was believed to be an 'unnatural offence' and a breach of moral and Christian codes – it was a crime 'not to be named among Christians'. Some heterosexual activity fell into this category as well, such as anal intercourse. Under English law, this act was known as 'buggery', and men found guilty of this could suffer the death penalty. Many other sexual activities (oral sex and masturbation, for example) were not regulated by the law. They too would be seen as immoral – although that certainly did not mean that women and men did not experience and enjoy them.

In 1861 England replaced the death penalty for buggery with life imprisonment. New Zealand enacted similar legislation six years later. Any sexual activity between men of any age became unlawful in England in 1885, and New Zealand followed suit in 1893. In New Zealand, men convicted of these offences could also face flogging or whipping and hard labour.

English reform

England did not seriously reconsider the laws about homosexual activity for another 70 years. In 1957 the Wolfenden Report called for, among other things, the decriminalisation of consensual sex between males over the age of 21 under certain circumstances. The recommendations, considered too controversial, were shelved.

Ten years later the Sexual Offences Act 1967 enacted the recommendations. Homosexual activities between consenting males remained criminal offences except under specific conditions – only two people present, both over 21, not in the merchant navy – with penalties of two to ten years imprisonment for anything that didn't follow the rules. This law remains in place in Great Britain, though an amendment in 2000 reduced the age restriction to 16.

New Zealand: mid-century challenge and reform

Men found guilty of sodomy could still be flogged or whipped, and serve their imprisonment terms with hard labour through the 1940s and 1950s. In 1959 Attorney General Rex Mason tried unsuccessfully to reduce the criminal sanctions on some homosexual activity, apparently as a result of the suicide of a homosexual acquaintance. The 1961 Crimes Act removed the term of life imprisonment for sodomy, but all legal sanctions against homosexual activity remained.

The Dorian Society (1962–88) was the first New Zealand organisation for homosexual men. It was primarily a social club and avoided political action. In 1963 it took the first steps towards law reform by forming a legal subcommittee that collected books and other resources. It also provided legal advice to its members. By 1967 it sought advice from the English Homosexual Law Reform Society and Albany Trust on the legislative changes occurring there. This led to a New Zealand society dedicated to law reform. Its first project was a petition, signed by 75 prominent citizens, presented to (and rejected by) Parliament in 1968.

The Wolfenden Association

About 150 people attended a public meeting in Wellington on 17 April 1967 to form a society to work for homosexual law reform. It called itself the Wolfenden Association, but it soon became the New Zealand Homosexual Law Reform Society. Lord Cobham, a former governor-general, was invited to become its patron. His letter to the society secretary, Jack Goodwin, declining patronage was blunt and expressed a common attitude:

'These people are mentally sick to as great an extent as, for example, people suffering from smallpox are sick. The whole problem of legalizing this offence seems to me to hinge upon the extent to which the disease is contagious.'

 

How to cite this page: 'Setting the scene - homosexual law reform', URL: http://www.nzhistory.net.nz/culture/homosexual-law-reform/setting-the-scene, (Ministry for Culture and Heritage), updated 20-Dec-2012