Lauren Gillen
A former human rights lawyer says Australia should erase criminal convictions for past acts of consensual homosexual sex from the record books.
In 1997 Tasmania became the last state to decriminalise sodomy – 22 years after the lead was set by South Australia.
Yet while homosexual sex is no longer a crime, rights activists say “thousands” of criminal convictions are still standing.
Dr Paula Gerber, a former lawyer and an expert in human rights law from Monash University, said states and territories must act to expunge those convictions.
“This sort of conduct should never have been criminalised,” Dr Gerber said.
“All the records, all the convictions, should just be expunged.
“The legacy of those laws still haunts many men as they continue to carry the stigma of a criminal conviction.”
Rights activist and Liberty Victoria vice-president Jamie Gardiner said it was a matter of righting a historical wrong.
“The state has a chance to say: ‘You were mistreated. We can’t heal the wounds, but at least [we] can admit publicly that it was wrong’,” Mr Gardiner said.
He said many men were jailed as a result of their convictions and now might not be able apply for jobs or volunteer positions that require a police check.
“If you are told you have to sign a statement that says you have never been convicted of anything on pain of perjury, what do you do?” Mr Gardiner said.
Dr Gerber said in many cases the criminal records caused more than just practical problems.
“There are mental health issues like depression,” she said.
“There is a negative impact on self-esteem because you have a criminal record for simply making love to the person you chose to.”
Mr Gardiner said the bulk of the convictions occurred before the late 1970s, when police attitudes towards homosexuality began to soften.
He said it was difficult to give an accurate figure on the number of convictions, but estimated it to be in the “thousands”.
Mr Gardiner said although the number of convictions recorded was relatively small, they still had a wide impact in the gay community.
“Terrible things happened to a smallish number of people, but that was enough to keep everyone terrified,” he said.
“These laws ruin many people’s lives and also cast a shadow over everyone else’s.”
“For those who lived through that era it still does.”
Recent legislation in the United Kingdom allows people to apply to have similar convictions deleted, and Dr Gerber said Australia should follow that lead.
“No Australian state or territory has gone down the same path as the UK and passed legislation that explicitly addresses the removal of criminal convictions for consensual homosexual conduct,” she said.
Dr Gerber said most jurisdictions in Australia had “spent convictions” legislation, meaning minor criminal offences committed more than 10 years ago would not show up on criminal police checks.
But she said in Victoria it remained uncertain if offences for consensual homosexual acts would be included in criminal record checks.
“The rules about what is to be included in a police record check are part of police policy, rather than legislation.
“There is much discretion in the hands of the police as to what is, or is not, included in a criminal record check.”
Victoria Police have said it would not release details of a conviction if 10 years has elapsed, but noted this was subject to exceptions.
One of those exceptions was for sexual offences, if the record check was for the purposes working with children.
Mr Gardiner said some of the homosexual sex convictions fell into that category.
Note: This story was originally published by the ABC Online website, http://www.abc.net.au, where Lauren Gillin worked as an intern as part of Griffith Journalism’s internship program.