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

By Moore, Clive; Jamison, Bryan | Queensland Review, August 2007 | Go to article overview

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


Moore, Clive, Jamison, Bryan, Queensland Review


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? (1)

There is, however, an older group in the GLBTIQ community whose members remain well aware of the once-criminalised nature of this aspect of male sexuality, the police entrapment that occurred, the pseudo-medical cures and the moral pressure they once faced. They represent a living history of the changed environment and can remember the last prosecutions in 1988, when a man in Roma was charged with 40 counts of carnal knowledge against the order of nature and gross indecency. Four others were also charged and, although the cases were eventually dropped, it was not before one of the men had attempted suicide. (2) Nevertheless, even they would be surprised by the findings of research into the way Queensland's criminal justice system dealt with male homosexuality during its first century.

Until a series of law reforms between the 1970s and 1990s, male homosexual activity was a criminal offence in all Australian jurisdictions and subject to severe penalties. This paper is based on an analysis of 464 cases between 1860 and 1954 from the colony and then state of Queensland. The data from this study are organised by offence and broken down into subcategories relating to the regions of Queensland, time periods, 1860-1900 and 1901-54, the age of the defendant, and the severity of the sentence. Although there is a growing literature on gay issues, large-scale evidence of the treatment of homosexuality by the criminal justice system is rare, and most previous studies have only sampled the cases preserved in criminal justice records. This 95-year span of cases is unique in Australia and unusually detailed by any standards.

The evidence indicates that the police carefully chose the possible range of charges to ensure convictions, targeted various age groups, manipulated the evidence, and tried to control the emerging gay subculture. However, the sentences--although still severe--were lenient within the possible range, and show that the judges were aware that male homosexuality was not such an 'abominable crime'. During the twentieth century, the legal system attempted to understand homosexuality and moderated sentences accordingly. The findings help locate the timing of the emergence of the modern Australian male homosexual, when erotic categories are reorganised, gender and gender roles lose significance for categorising sexual acts, and sexual object choice becomes detached from gender identity, allowing men to be homosexual while maintaining normative behaviour patterns.

Homosexual Offences and the Criminal Law in Queensland

Before delving into any analysis of homosexual offences, it is important to outline the law as it applied to male-to-male sexual activity. …

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