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So far to go

Law reform has been driven by less noble factors than a thirst for justice.

Hagley Park.

Charles Aberhart is terrified. A gay man in his mid-thirties who has already served one prison sentence under the law forbidding homosexual acts, the Blenheim draper knows the local police have him in their sights. So he has come to Christchurch and one of the city’s best known cruising spots – the public toilet in Hagley Park.

It is 1964 and corporal punishment for homosexual acts has only recently been abolished. As it is, Aberhart risks a sentence of seven years’ jail.

But it is here, on this summer evening, that he encounters six adolescent males out for a night’s gay bashing. The group, aged between 15 and 17, include a butcher, baker’s assistant, factory hand, spray painter, postal employee and builder’s labourer.

He is the boys’ third target that night. The first man they approach threatens them with a large pair of scissors, and they back off. Two others band together and walk away. Aberhart first tries and fails to escape; then a plea to passersby is ignored. He offers to buy the boys coffee or fish and chips, to no effect.

Their assault climaxes with a blow to the face and a haemorrhage of the brain, which kills him. The boys flee the scene after one has rifled through his pockets.

They are soon caught and go on trial for manslaughter. A straightforward case you might think – except that the jury, notwithstanding the instruction of the judge, brings in a verdict of not guilty and the boys walk free.

The next morning I pass a friend on the old university site – I was a student at the time – and he remarks: “I see it’s open season on queers.” Actually, it has been for some time; gay bashing was a favourite sport of bored young males in my youth and has remained so, usually followed, if the perpetrators are caught, by the deployment of what, until it was recently repealed, became known as the “gay panic” defence: “He touched me suggestively and I was so horrified and disgusted I lashed out at him.” In that regard, there was nothing particularly notable in the Aberhart case.


But it entered liberal folklore because, almost alone of the mainstream media – which pretty much ignored it because of a general taboo about mentioning such things – the Listener, under its long-serving (1949-1967) editor Monte Holcroft, made it the subject of an editorial (which can be read by clicking here).

“At the centre of the case,” wrote Holcroft, “was the assumption that the dead man was a homosexual. The assumption should have been irrelevant, except in its bearing on motive … The six youths … were not moved by moral indignation, they were looking for excitement and believed their victim to be fair game.”

Fifty years on it provides a convenient marker to measure the historical distance we have traversed in this field of social change. Aberhart, if he was miraculously restored to us today, would be astounded. “We are living,” writes Jeffrey Weeks, professor of sociology at London’s South Bank University, in his 2007 survey work The World We Have Gained, “in the midst of a long, unfinished but profound revolution that has transformed the possibilities of living sexual diversity and creating intimate lives [and] that has transformed our ways of being sexual, intimate and familial.” In this country and beginning with a private member’s bill in 1974 (rather curiously, in the name of Venn Young, a rural National backbench MP), and after several abortive attempts, we have successively legislated for decriminalisation of homosexual acts between consenting adults (1986); a Human Rights Act (1993) that includes sexual orientation, although not (arguably) transgender equality; civil unions and a mass of ancillary legislation (2005); and finally, just last year, same-sex marriage and the equal rights to same-sex couple adoption that brings with it.

All these changes (although they have taken some time) would have boggled Aberhart’s mind; 50 years ago he probably would not even have been able to conceive of them. Consequently, many people these days might think, if they could not say, that it would be a good thing if the love that dare not speak its name would shut up for a bit while we all digest these changes.

They would be wrong. Anyone who is familiar with the political world of what is known for brevity’s sake as GLBTI issues (gay, lesbian, bisexual, transgender and intersex, if you see what I mean) will be only too aware of a number of outstanding matters. A recent study, for example, of young gay adolescents coming out has identified a horrifying pattern of suicide in which the rate may be as much as four times that for their straight counterparts, at a time when internationally some figures suggest New Zealand already has an unacceptably high rate of suicide in this age group. Workplace and institutional discrimination remains a problem, albeit a hidden one; I have personally advocated some cases to the Human Rights Commission arising from this. And there is a continuing debate, including within the gay community itself, both here and internationally, over the criteria for blood donation by the group known to researchers, with good reason, as “men who have sex with men” (as distinguishable from gay men).

Vladimir Putin’s anti-gay moves have inspired both bigotry and protesters, such as these dancers at London’s Russian embassy. Photo/Getty Images


And lifting our eyes beyond our own horizon immediately confirms that any liberalisation of the laws on GLBTI human rights is very much an advance enjoyed by the citizens of a minority of states internationally, and mostly those that are European or inherit its traditions.

Across whole swathes of Africa and the Middle East, homosexual acts continue to be the subject of cruel and sometimes fatal judicial punishment. Reports of floggings for homosexual acts surface regularly in Iran, for example; I was recently one of those instrumental in obtaining refugee status here for a young man who was forced to flee the Maldives, where sharia law is now widely enforced, and after a friend had his throat slit on his doorstep for taking a public stance in favour of decriminalisation.

Perhaps even worse, in a number of countries where homosexual acts continue to be illegal (quite often because previously colonial territories had inherited laws accordingly) there have been moves to extend and strengthen these laws. In Uganda, a law – partly in response to a lobby lavishly financed by US evangelical churches – has made it a serious crime to fail to report on the homosexual activities of others.

The public ravings of Robert Mugabe on the same subject are well recorded. And in Putin’s Russia, the criminalisation of the public “propagation” of views in favour of the normalisation of homosexuality – that is, mentioning it at all – has encouraged thuggery by right-wing groups while the police look the other way.

Getty Images

This last move tells us something rather interesting that also needs to be borne in mind, not least within the GLBTI community itself, although periodic warnings of its implications go largely unheeded. In fact, in my experience, many young gay men who have come to adulthood since decriminalisation simply refuse to believe and express incredulity that homosexual acts were once a criminal offence. The interesting consideration is that the successful passage of the laws equalising homosexual human rights was not primarily driven by a concern for such rights, although that played a significant part, but by health concerns arising from the HIV/Aids epidemic, which by the early 80s had spread, by way of blood transfusions, to the straight community. As Randy Shilts implies in his 1987 study of the politics of the Aids epidemic in the United States, And The Band Played On, no one in the political or medical establishments was too concerned about gay men contracting a deadly condition or in what caused it. But when that began to affect the straight community through blood transfusions, that was another matter entirely.

Nor has any political party in our Parliament, whatever its formal policies may say, included any of the advances that have been made in the extension of GLBTI human rights in its legislative programme in government.

All the advances were initially a result of initiatives by individual MPs whose private member’s bills happened to get drawn in the ballot.

And the repeal of the “gay panic” defence came about not because of the manner of its use in gay-bashing cases, although there had been agitation accordingly for more than a decade. It happened because of an unsuccessful attempt to use it in a heterosexual murder trial and the widespread revulsion that that caused.

The recent vote on gay marriage, passed 77 to 44, tells us not that we have the tolerant and liberal society for which Monte Holcroft argued but that we have one in which fully a third of our national political leadership could not bring themselves to vote for equality of human rights for all citizens.

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