Men convicted of ‘gay sex offenses’ will be able to have those offenses removed or expunged from their criminal records more than thirty years after consensual sex between men was decriminalised in Victoria.
At one level, this addresses the fear and shame that many older men convicted of gay sex offenses carry today.
Criminal record checks are a standard feature of recruitment processes, and men who have been convicted for past homosexual activities that are no longer unlawful may, nonetheless, be denied employment, volunteering, and, in some instances, public office.
At the same time, expunging prior convictions may go some way to lessening the hurt and shame inflicted on these men.
Some were subject to public outings as a consequence of their convictions while other struggled to hide their convictions from family, friends and work colleagues. Those who were outed faced the legal sanctions and public humiliation that came with being branded a criminal and a sexual deviant. Those whose convictions were not made public struggled to hide both their sexualities and criminal records.
As one man bravely recounts [PDF 1.5MB] in a background paper on expunging past gay convictions submitted to the Victorian Government:
I was arrested and convicted of a homosexual offence as a 17 year old....It was 1967…the Truth Newspaper ran a story about my case on the front page…Looking back, I did take on the guilt and shame. It was like holding a terrible secret. I fled overseas to escape and removed myself from my family for a number of years, until I found a way to accept myself with pride.
At another level, the expunging of prior convictions recognises that such laws were unjust and discriminatory and should never have existed in the first place. This recognition shifts the burden of responsibility and shame from the shoulders of individual gay men to government and law makers and those institutions that peddled (and in some instances continue to peddle) deeply homophobic and discriminatory beliefs and practices.
As Rodney Croome notes on The Drum, laws that criminalised homosexuality were part of a broader homophobic culture that ‘created the conditions for blackmail, social exclusion, hate crimes and suicide’. Croome argues that initiatives to expunge gay sex convictions should be ‘accompanied by an official apology’.
Such an apology, he contends, will benefit not only the men convicted of gay offenses but ‘the far larger group of people who suffered, and still suffer, from the prejudice and stigma that was fostered by the criminalisation of homosexuality’.
But an apology is still locked within a cycle of blame and regret, where the primary focus is compensation for the damage and hurt caused by discriminatory and hateful beliefs and practices, including the law. This misses the deeper and perhaps more moving symbolic weight of the Premier’s declaration that laws criminalising consensual homosexual sex between male adults are and always have been unjust.
Raymond Gaita argued on the ABC’s Q&A in 2011 that it is possible to object to the hurt caused to gay men, lesbians and bisexuals (GLB) by discriminatory laws while nonetheless continuing to find GLB people’s sexual practices and identities disgusting. An apology may acknowledge and express regret for the hurt caused to gay men by homophobic laws, but it does not necessarily involve a recognition, as Gaita so beautifully put it, of ‘the dignity of their [GLB people’s] sexuality’.
There is in the Premier’s declaration not only an acknowledgement of the inherent injustice of homophobic laws, past and present, but the implication that homosexual expression is, and always has been, legitimate and valuable.
To expunge homophobic laws is to do more than express regret. It is to acknowledge, here in the present, the dignity of GLB people’s lives - how we live and love - and to recognise same sex attraction as part of the sexual diversity that constitutes our shared humanity.
This article was also published in New Matilda on 24 January 2014.
William Leonard is Director of Gay and Lesbian Health Victoria and a Research Fellow at the Australian Research Centre for Sex, Health and Society at La Trobe University.