In 1953 artist Douglas Annand was charged with soliciting a man for sex in a Sydney public toilet.
The man he was alleged to have solicited was a police officer. Annand was convicted by a magistrate after a second policeman backed the first officer’s evidence.
The Annand case is significant because of what happened next. He appealed. A judge later threw out the case after finding the police version of events was “a wicked, dastardly lie”, the police corroboration wasn’t worth the paper it was printed on, and the magistrate’s finding of guilt was based on little but his prejudices.
A man soliciting a man for sex in 1953 was “the sort of thing where the very making of the charge causes instant prejudice against the person charged”, the judge said.
Powerful people looked after other powerful people so they could all stay in power.
The judge found Annand was presumed guilty because of the magistrate’s prejudice. He was put in the position of having to prove his innocence – a complete inversion of a foundation principle of our justice system.
The judge threw out the case after noting he was “satisfied of the defendant’s innocence”. The appeal was one of a number that challenged the law as it stood at the time, which made consenting homosexual acts between men a crime, even in the privacy of a bedroom.
The Annand case caught my eye because of unrelated events this week – Wednesday’s historic same-sex marriage “Yes” vote, and a speech by Royal Commission into Institutional Responses to Child Sexual Abuse chairman Justice Peter McClellan on Tuesday titled ‘Rights’ and ‘Wrongs’.
Justice McClellan told a Melbourne audience the royal commission had evidence that “at least in Sydney and Melbourne there was for many years an understanding that police would protect members of the church who may have offended”, and the offending we’re talking about is child sexual abuse.
That “understanding” reflected a more general community attitude that it would be “detrimental to the entire community if its ‘pillars’ were exposed as criminals”, Justice McClellan said.
In other words powerful people – police – looked after other powerful people – churchmen, and you could probably throw in errant politicians – so they could all stay in power, and with a ready excuse. Stability. One rule for them, another for the rest. A powerful group was above the law, assisted by the powerful law enforcers.
This was happening as police were concocting dodgy criminal cases against men – because the Annand case wasn’t a one-off – or charging gay men with having sex in their own homes, and the criminal justice system was up-ending itself to convict them.
It’s worth considering the history of sex, power and religion – or at least the Christian religion – as federal politicians debate same-sex marriage legislation using terms like “religious freedoms”, “conscientious objections” and “freedom of conscience for all”.
It’s also worth noting Jesus doesn’t get a look-in on this debate despite the “No” campaign being led by a Christian group. But we’ll get back to Jesus in a minute.
For the best assessment of how the Old Testament is used and abused to back the “No” case on homosexuality I suggest you read Dr Stuart Edser’s book, Being Gay, Being Christian, which provides an exhaustive and wonderfully-written breakdown of Leviticus, Corinthians and Timothy – the Bible’s gay go-to verses.
For centuries it was the Catholic Church’s ecclesiastical courts that dispensed justice on matters sexual. People died because of it. An institution that has always struggled to see sex as a life force, and has preferred to see it as a shameful thing that should be confined to producing children, was never going to deal well with homosexuality.
It was under Henry VIII that England produced the Buggery Act which made sex between two men a capital offence. It wasn’t until 1861 that the sentence was commuted to jail rather than death. Things didn’t change in the United Kingdom until the Wolfenden Report in 1957 recommended decriminalising homosexuality after police persecution of gays saw more than 1000 men in jail by the early 1950s.
It was John Gorton who made the most eloquent argument for decriminalising homosexuality during a speech in Australia’s federal parliament on October 18, 1973, when he was no longer prime minister. He addressed the religious argument with this: “I cannot imagine it to have been a function of God’s law to commit people who are built differently in some way from ourselves to live a twilight life of guilt and fear.”
We keep hearing about human rights in the same-sex marriage debate, but it’s worth noting the Universal Declaration of Human Rights – which came into being as a direct consequence of the horrors of World War II and the Jewish Holocaust – is about the supreme value of the human person, whose value originates in the simple fact of existing.
The woman who steered the process that led to the declaration, Eleanor Roosevelt, wrote of negotiating her way through a committee of very powerful people, who each had a view about human rights based on their religious beliefs, which ranged from the gamut of Christian beliefs to Confucianism, and all shades in-between.
The declaration relies on human existence as its foundation principle, and not something derived from religious belief, because religious beliefs are so disparate.
In his speech this week Justice McClellan talked about history and values, and how “what appeared to be true yesterday may be doubted tomorrow and discarded in a few years’ time”.
Powerful people looked after other powerful people when children’s rights weren’t valued, and they were supposed to be seen and not heard. Children paid the price.
Two thousand years ago a man named Jesus preached a radical theology of love and peace which rattled the powerful so much that he was crucified. Apply the “What would Jesus do?” test to same-sex marriage and a fight for the right to discriminate against other Australians, and it’s no wonder Jesus hasn’t featured in this debate.
This is still all about power and who wields it, and the hypocrisy is almost breathtaking.