In this post for our marriage equality series, Andy Kaladelfos looks back at the contested history of policing homosexuality before decriminalisation.
The 1950s has long been interpreted as a time of homosexual persecution, characterised by intensification of policing and criminal prosecution of homosexual offences. Alongside intensification, however, was a parallel story. In this conservative era, when moralising about the dangers of homosexuality was at its height, legal appeals offered the opportunity to challenge state authority even while homosexual acts remained criminal offences. These legal challenges were an unexpected outcome of policing homosexuality, forcing policy change and paving the way for the overturning of the law’s approach to homosexuality in later decades.
In the 1950s, all male homosexual acts were criminal offences whether they occurred in public or in private and whether they were consensual or not. The New South Wales vice squad led the intensification of policing homosexual offences, as Police Commissioner Colin Delaney declared homosexuality to be ‘Australia’s greatest menace’ (Sydney Morning Herald, ‘Homosexual menace in Australia’, 11 June 1958). With the political emphasis on the nuclear family as the bedrock of social order and post-war stability, the period was marked by increasing social surveillance, discrimination, and violence directed towards homosexual men.
But as policing homosexuality reached its peak, and more cases came to court, so too did damning allegations of policing practices that included entrapment, false statements and blackmail. These allegations offered serious challenges to police integrity. Thus greater policing of homosexual men had produced an ironic result, focusing attention not just on the supposed rise in homosexual activities but on the methods of policing itself.
Police methods first came under fire in the provocative findings of an appeal hearing in 1953. The appeal was on the conviction in a soliciting case against well-known Sydney artist Douglas Annand, who alleged that police had fabricated a charge that he was guilty of soliciting in a public toilet. Soliciting was a summary offence heard in the petty sessions by a single magistrate without a jury, the typical result being a fine for those found guilty. The ‘soliciting’ section in the Vagrancy Act was one of the most common methods used to police homosexuality.
Upon hearing the appeal, Judge Nield overturned Annand’s conviction and found that police evidence had been ‘a wicked and dastardly lie’. Nield had come to this conclusion after visiting the crime scene and finding that the setting was so dark that the officers could not possibly have seen the acts alleged to have taken place there. He reserved his strongest comments for the dangers of uncorroborated police testimony, which formed a major part of his assertion for the necessity of a jury trial for these cases.
One week later another appeal ended police use of the summary soliciting charge forever. Ex Parte Langley, found that the soliciting provisions did not apply to homosexual encounters (NSW State Reports, ‘Ex Parte Langley; re Humphries and Anor’, 1953, Law Book Company, Sydney, vol. 53). The judges determined these provisions only related to instances where a male solicited another male to have intercourse with a female prostitute. ‘Standing out in sharp contrast’ to prostitution, explained Justice Clancy, in its ‘nature and gravity is the crime of sexual relations between males’. The bench overturned the use of soliciting charges because they viewed homosexuality as more serious than a summary offence and therefore had to be heard by a judge and jury.
These two 1950s appeal decisions had an immediate effect on policing practices. Not only did they give significant media exposure to the tactics of vice squad officers but they also ended the squad’s most common approach to policing homosexuals. The effect was so significant that Commissioner Delaney derisively noted in his annual report that police had been forced to change tactics in the wake of those decisions, which he described as a ‘set back’ in their ‘efforts to deal with perverts’.
Attempting to appease the concerns of both the police and the bench, Attorney-General Bill Sheahan tabled legislation that created a new criminal offence of male-to-male soliciting. In contrast to the older vagrancy provisions, the new offence was far more serious: it was indictable, heard by a judge and jury, and carried a maximum sentence of twelve months’ imprisonment. Sheahan made mention of the Langley and the Annand findings when he put forward these amendments, saying such cases should go to a judge and jury for the protection of the defendant and the benefit of cross-examination. Included in the amendment was a provision that a conviction could not occur on uncorroborated evidence.
The amendment now offered a unique opportunity to test the evidence-base of police allegations. A case of indictable soliciting that came to trial soon after the amendments showed the weakness of police evidence without corroboration and revealed the vulnerable position of men to falsified confessions (NSW State Records: Criminal Transcripts, Quarter Sessions, R v Clarke, 1958). In this case, a detective from the vice squad alleged that a man had solicited him in the toilet of Central Station. The accused man, Freddie Clarke, gave a lengthy statement from the dock describing how vice squad officers attempted to elicit a confession from him. He said that on the drive to the station the officers ‘attacked’ him for being a ‘pervert’ but, on hearing that he was a schoolteacher, they told him that if he signed a statement they would make it easy for him. One of the officers removed a pistol and his handcuffs and sat on the edge of the desk, letting them hang in his hand like a pendulum, he claimed. Clarke speculated that it was to ‘scare him into admitting’. In this instance, the jury found that there was not enough evidence to convict the accused because only one officer had heard the alleged solicitation, although two officers had claimed to have heard his verbal admission to the crime. This testimony, Justice Holden remarked, was not corroboration.
The creation of the indictable soliciting offence was a double-edged sword, offering men accused of homosexual offences the potential to test police evidence but, in doing so, they risked the public exposure of their alleged actions. Police now needed to provide sufficient corroborating evidence to prove their allegations, however, the elevation of this offence from a summary court to a higher court increased the potential shame and notoriety for those men who were the subject of criminal inquiry. Public exposure could have harmful consequences for defendants, including ostracism by employers, broken marriages and distraught families. And not least of all, the new amendment subjected homosexual men to possible gaol time where previously fines had been the norm.
Today police practices in arresting homosexuals and the law’s historical criminalisation of homosexual offences have garnered a number of Australian state governments’ apologies and the development of expungement schemes for historical convictions. In the recent apology delivered to the Queensland parliament in 2017, Premier Annastacia Palaszczuk acknowledged that in criminalising homosexuality the government ‘dishonoured its citizens and institutionalised prejudice and discrimination’, and caused ‘shame, guilt and secrecy carried by too many for too long’.
While prosecuting same-sex behaviour in the 1950s, the criminal law would also prove an avenue to challenge the policing of homosexual offences. These challenges were not yet about the ethics of criminalising homosexuality. Instead the long-standing legal principles of fairness in evidence-gathering and criminal procedure were values that legal adjudicators were reticent to abandon even in a decade of increasing vitriol directed at homosexual men. It is likely that 1950s’ revelations of poor police practices, caused by the fact that policing homosexuals had greatly intensified, actually helped paved the way towards decriminalisation of homosexuality offences from the 1970s onward.
Appealing to the legal principle of equality has long been an avenue used to successfully challenge discriminatory practices against LGBTQI Australians. In the 1950s, these challenges put a spotlight on unjust and unethical state practices and helped pave the way for legal change. In our fight for marriage equality today, challenging unequal treatment under law has similarly revealed unjust experiences of LGBTQI citizens, which in turn has proved one of the most powerful agents for facilitating real social change.
For more on policing homosexuality in the fifties, see Lisa Featherstone and Andy Kaladelfos’ book Sex Crimes in the Fifties, published with Melbourne University Press in 2016.
Andy Kaladelfos is an historian and Senior Research Fellow with the ARC Laureate Fellowship ‘The Prosecution Project’ at the Griffith Criminology Institute, Griffith University. Andy has published widely on the history of gender violence and sexual violence, and is co-author of Sex Crimes in the Fifties (Melbourne University Press, 2016) and co-editor of The Sexual Abuse of Children: Recognition and Redress (Monash University Press, 2016).
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