Sections 208 and 209 of the Criminal Code 1899 prohibit ‘unlawful sodomy’ and ‘attempted sodomy’ with a person under 18 years, in contrast to an age of consent of 16 years for all other sexual acts.
2.
DaltonDerek (2008) ‘Gay Male Resistance in “beat” spaces in Australia: A study of outlaw desire’. Australian Feminist Law Journal, Vol 28 (in press).
3.
Sexual Offences Act 1967 s 1(2).
4.
Section 32 of the Sexual Offences Act 1956 made it ‘an offence for a man persistently to solicit or importune in a public place for immoral purposes’.
5.
See, for example, the significant dispute between Hart and Devlin in relation to law, morality and sexuality: DevlinPatrick (1965) The Enforcement of Morals and Herbert LA Hart (1963) Law, Liberty and Morality.
6.
Report of the Committee on Homosexual Offences and Prostitution, 1956, Cmnd.247.
7.
To talk of ‘heteronormative conceptions’ of public decency is to recognize that the regulation of public sex is significantly shaped by the way in which sexual practices and sexual identities are conceived within, and framed by, normative ideas about sex and sexuality. The fact that the police are more likely to receive complaints about homosexual public sex from members of ‘the public’, and more likely to engage formal regulation around such activities, is often driven by ideas about homosexual sex as something that is ‘dirty’ or ‘dangerous’. For a longer discussion of this, see: JohnsonPaul (2007) ‘Ordinary Folk and Cottaging: Law, Morality, and Public Sex’Journal of Law and Society, Vol. 34, Issue 4, pp 520–543. See also: DaltonDerek (2007) ‘Policing Outlawed Desire: “Homocriminality” in Beat Spaces in Australia’. Law Critique. 18: 375–405.
8.
R v Harkin, 1989, 38A Crim R per Lee J.
9.
Johnson, above n 7.
10.
Home Office (2000) Setting the Boundaries: Reforming the Law on Sex Offences.
11.
Ibid, 124.
12.
Ibid, 125.
13.
The Christian Institute, in asserting that the ‘right place for sex is in the bedroom, not a public lavatory’, presented a moral view of sex as that which takes place in the homes of monogamous, procreative, heterosexual couples. The Christian Institute (2003) Legalising sexual activity in public toilets: How the Sexual Offences Bill effectively legalizes a major public nuisance.
14.
HL Debate 13 Feb 2003 c.789.
15.
HL Debate 9 June 2003 c.69.
16.
HL Debate 9 June 2003 c.70–71.
17.
HL Debate 13 Feb 2003 c.789.
18.
HL Debate 19 May 2003 c.585.
19.
HL Debate 9 June 2003 c.68.
20.
HL Debate 13 Feb 2003 c.807.
21.
HL Debate 9 June 2003 c.72.
22.
Home Office, RDS – Office for Criminal Justice Reform. Personal correspondence.
23.
For a discussion of the policing of gross indecency see: MoranLeslie J (1996) The Homosexual(ity) of Law.
24.
Dalton, above n 2 and n 7.
25.
WillettGraham, Living Out Loud: A History of Gay and Lesbian Activism in Australia (2000).
26.
‘Public’ means a place ‘that is open to the public, or is used by the public whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used and whether or not the public to whom it is open consists only of a limited class of persons’.
27.
For example, see: BechHenning, When men meet: Homosexuality and Modernity (1997). DesrochesFrederick, ‘Tearoom trade: A research update’ (1990) 13(1) Qualitative Sociology39–61. DesrochesFrederick, ‘Tearoom Trade: A law enforcement problem’ (1991) 33(1) Canadian Journal of Criminology1–21. HumphreysLaud, Tearoom Trade: A Study of homosexual encounters in public places (1970).
28.
Dalton, above n 2 and n 7.
29.
Moran, above n 23.
30.
TomsenStephen, Hatred, Murder and Male Honour: Anti-homosexual Homicides in New South Wales, 1980–2000 (2002) Australian Institute of Criminology Research and Public Policy Series, No 43.
KendallChristopher and DharmanandaMala, ‘Report of the Western Australian Ministerial Committee on Lesbian and Gay Law Reform’8(4) E Law, Murdoch University Electronic Journal of Law <murdoch.edu.au/elaw/issues/v8n4/kendall84.html> at 28 August 2008.
