New Zealand Law Society - Some issues with homosexual conviction pardon petition

Some issues with homosexual conviction pardon petition

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A petition with 2112 signatures which asks for past convictions for homosexual acts to be expunged has been presented to Parliament by Green Party MP Kevin Hague.

Justice Minister Amy Adams says she will await the select committee's report on the petition with interest. However, she has also pointed out that meeting the requirements of the petition is not straightforward.

How was the law changed?

The Homosexual Law Reform Act 1986 received the Royal Assent on 11 July 1986 and made a number of amendments to the Crimes Act 1961. It came into force on 8 August 1986.

While the previous offences relating to sexual relations between consenting males over the age of 16 were repealed, acts of indecency and anal intercourse with males under the age of 16 remained criminal offences.

Section 7 of the 1986 Act provided that no person would be liable to be convicted of an offence against the provisions which were repealed committed before the commencement of the Act "if the act that constituted the offence does not constitute an offence after the commencement of this Act". 

While this may have helped some men, homosexual acts had been illegal for well over a century before. Section 58 of the Offences Against the Person Act 1867 stated "Whosoever shall be convicted of the abominable crime of sodomy and buggery committed either with mankind ... shall be liable at the discretion of the Court to be kept in penal servitude for life or for any term not less than ten years." (rape in the same Act being punishable by imprisonment for not less than two years).

What does the petition seek?

The petition states: "Respectfully requests that, in the matter of those who were convicted of consensual homosexual acts prior to the Homosexual Law Reform Act 1986, the House (a) promptly issue an official apology to those convicted, and (b) pass legislation which sets out a process for reversing the convictions of those convicted, both living and deceased, in a manner which upholds the mana and dignity of those convicted."

The petition was organised by Wiremu Demchick, who travelled the country to gather signatures.

How many convictions and men are involved?

The number of convictions and the number of men who were convicted of pre-1986 Act offences is unknown. Kevin Hague has been reported as saying it is believed to be in the hundreds.

An official information request by the Dominion Post in 2014 to the Ministry of Justice shed some light on the matter. While the ministry did not have data for the whole time the offences had been on the statute books, it was able to provide information for people who had been convicted of homosexuality-related offences between 1 July 1980 and 8 August 1986 (when the new law came into force).

Over that time there were 879 convictions for offences which included anal intercourse with another man aged over 16, committing an indecent act with another man, and keeping a place of resort for homosexual acts.

The Minister of Justice's viewpoint

"The issue of wiping past homosexuality convictions is one I've looked at previously and it's clear it requires careful consideration," says Justice Minister Amy Adams.

"The advice I've received suggests that nearly 80% of men were convicted of sexual offences involving males under 16, which continues to be a criminal offence and for the remaining convictions it would require a case by case analysis.

"Given the petition is now before the select committee for their consideration, I'll await their report with interest," she says.

Are there any other options available?

New Zealand's Equal Justice Project has published a comprehensive account by Daniel Gambitsis of the issues involved and their likely success. 

There is precedent for a pardon for at-the-time illegal homosexual acts in the case of Dr Alan Turing (subject of the move The Imitation Game), who was given a Royal Pardon on 24 December 2013 for his conviction in 1952 of gross indecency with a 19-year-old man.

While most of the United Kingdom's major political parties promised to ensure pardons for other men convicted of now-legal homosexual acts, that doesn't seem to have happened yet. The latest development in the United Kingdom is a private member's bill by Scottish National Party MP John Nicolson which would automatically pardon those convicted or cautioned under homophobic laws which are no longer in force.

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