Acknowledgements

Executive Summary

Introduction

The Research Process

NSW Age of Consent legislation

Homosexual Age of Consent in Australia

Homosexual Age of Consent worldwide

Primary arguments against equalisation

Primary arguments in favour of equalisation

Professional organisations’ positions

Material from Australian Royal Commissions and Government
Enquiries

Conclusions

Bibliography

Thematic list of references

MAJOR REPORT - 2001

THE AGE OF CONSENT
AND GAY MEN IN NEW SOUTH WALES

Section Five - Primary Arguments Against Equalisation

The following five arguments constitute the core of the case against equalising the age of consent at the age of 16--that is, lowering the age of consent for young gay males from 18 to 16 years. They have been compiled from a thematic analysis of a number of sources: Parliamentary briefing papers (Simpson and Figgis 1997; 1999); Royal Commission submissions (Royal Commission Into the New South Wales Police Service 1997) ; Academic papers ostensibly promoting child protection measures (Lancaster 2001); and Innumerable anti-homosexual conservative and religious websites Other arguments have been put forward--often drawing on highly arcane theological principles--but the following have appeared most often and constitute the most cogent of the possible arguments against equalisation. Comments will be made on the validity of each argument in turn.

A. More young men are likely to be exposed to older sexual predators In the literature review no peer-reviewed empirical evidence whatsoever was found to support this position. This thesis is challenged by the research of Davies et al (1992) in the UK, which remains the largest study into the sexual behaviour of young gay men in the world, with over 1000 participants (the Project Sigma cohort). In this comprehensive study - 98% of respondents reported that their first homosexual experience was consensual; 92.6% of respondents' first homosexual experience was with a partner of the same age or slightly older; 39.4% of all respondents' first sexual experience was with a partner of the same age and; 48.1% of respondents' first sexual experience was with a partner within 2 years of their own age. This research indicates quite strongly that the overwhelming preference of young gay men is for a partner within their peer group. Results from focus groups conducted by the researchers supported the aforementioned results; and numerous professionals confirmed the view that young gay males, by and large, were wholly uninterested in partners outside their age group. A number of the young gay males we spoke to who had actively participated in the inner city club and bar scenes claimed that the current age of consent situation tended to exacerbate rather than ameliorate exposure. It was claimed that being seen as 16 or 17 tended to drive away potential partners for fear of prosecution for underage sex. On the other hand, the law did nothing to deter the unwanted "attentions" of older men. However, in the experiences of the young people interviewed, these "attentions" were relatively few and posed no threat or coercion to them. Furthermore, many young men claimed that the current age of consent laws seemed to them to be a retributive device against older predators rather than having as their primary goal the welfare of young men. This was particularly the case in their symbolic function of reinforcing negative stereotypes about homosexuality. As one respondent said, the current laws did nothing to protect young men yet at the same time they "criminalized love". This was at a time when young men needed as much information, support, and assistance they could get especially in a homophobic environment. Yet, this criminalizing inhibited teachers, counsellors, and health and welfare professionals from providing proper and inclusive sex and personal development information and skills. It should also be noted that in any case young men under the age of 16 will continue to be protected by the standard age of consent provisions in NSW.

B. Young men will be more likely to experiment with homosexual activity and are likely to be seduced and "converted" to an unwanted homosexual lifestyle Adherents of this argument are unable to draw on any peer-reviewed empirical research for substantiation. In any case this thesis is challenged by the findings tabled by Rosario et al (1996) in one of the largest studies of the psychosexual development of lesbian, gay and bisexual youth. They found that the mean age for initial awareness of sexual orientation was 11 years. The mean age for active consideration of a gay/lesbian or bisexual identity soon followed, at a mean age of 12.5 years. The mean age at which participants became certain of their identity as gay/lesbian or bisexual was 14.6 years. Previous studies that report consonant results include Bell and Weinberg (1978); Bell et al (1981); Califia (1979); Chapman and Brannock (1987); Joseph et al (1991); Mays and Cochrane (1988); Macdonald (1982); and Saghir and Robins (1973). 33 When these results are viewed in the light of the data emerging from the Project Sigma study (Davies et al 1992)--namely that early homosexual experiences tend to be desired, consensual and conducted with a partner from one's own age group--this argument cannot be maintained alongside these research findings. Despite there being substantial differences of opinion in the scientific community as to whether the origins of sexual orientation are genetic, biological or social (or combinations thereof), the notion that sexual orientation is malleable and subject to influence in the late childhood/early teenage years has been widely rejected. Notwithstanding the long search for a putative cure for homosexuality by some psychologists and psychiatrists over the years, all such attempts have failed. And albeit wide differences in opinion as to the precise aetiology of sexual orientation, the vast majority of scientists and relevant professional bodies (for instance the American Psychological Association, the American Psychiatric Association, the American Medical Association, the British Medical Association and the World Health Organisation) share the view that sexual orientation is shaped and fixed at a very early age (American Psychological Association 2001; Religious Tolerance 2001): Research suggests that homosexual orientation is in place very early in the life cycle, possibly even before birth. It is found in about ten percent of the population, a figure which is surprisingly constant across cultures, irrespective of the different moral values and standards of a particular culture ("Statement on Homosexuality", American Psychological Association 2001) 34 All focus group participants who contributed self-reports on this issue felt that their homosexuality was not chosen and most definitely not changeable: a significant number had tried this -- whether via denial, experimentation with heterosexual relationships or via dubious psychological therapies -- and failed. In fact a significant minority -- under the influence of often extraordinarily homophobic milieux -- had at a younger age desperately wished they were not gay. One might wonder that if sexual orientation were as malleable an entity as the proponents of this thesis suggest, why all these determined efforts produced no conversions to the desired heterosexuality whatsoever. Furthermore, a significant number of participants recounted feeling "different" to their ostensibly heterosexual peers for as long as they could remember. Many of these individuals, in retrospect, considered that they had been homosexual from early childhood. What current laws did was to isolate them from information and assistance as well as make it more difficult to have appropriate experiences for their age and sexual orientation. In this way they felt that as young gay men they were being discriminated against.

C. Young men will be encouraged to engage in homosexual activity at an earlier age Again no peer-reviewed empirical research was found which supported this thesis. This position was put to the focus group participants by the researchers. In every case it received a similar nearly unanimous response: that although reaching the age of consent brought about a great deal of relief to individuals, (a relief that may be hard to distinguish 35 from the other freedoms enabled by reaching majority in our society) it was not in any way seen as a licence to have sex. The vast majority of participants also strongly felt that if the age of consent was equalised their attitude would still hold. In short they said that they would have sex when they were ready and would not be swayed by legislation. The only difference they felt that current legislation made was to make already-occurring sexual activity more furtive and guilt-ridden. Moreover, a high proportion of participants indicated that they had engaged in homosexual sex well before the age of 18 -- most of these before the age of 16. This was of their own doing and unrelated to their knowledge of the law. Indeed, one or two young men only became aware of the law after they reached 18. Similar experiences are reported in the research of Davies et al (1992) in the UK. Davies et al found that 50% of their cohort had engaged in homosexual sex by the age of 16, 90% by the age of 18. Notably the mean age of first homosexual experience was 15 years, the median just slightly under 15 years. Other crucial findings here have been summarised by Grunseit (1994) in a comprehensive literature review. In research cited in this review, consistently it was contended that legislative and education measures designed to induce or prolong sexual abstinence in young persons were counter-productive. However, exposure of young gay males to education which neither denied their sexuality nor attempted to discourage sexual activity in fact tended to lead to postponement of homosexual activity on the part of participants. Focus group participants reported they had received no information on homosexuality or about resources in the community appropriate to the needs of young gay men and they 36 attributed this in part to the inhibiting effects of the current age of consent laws. In the few cases where information had been provided this had been couched in negative terms.

D. Because young men will be encouraged to have sex at an earlier age this will lead to higher rates of HIV infection The first problem with this argument is one of logic: here homosexual behaviour and homosexuality per se are erroneously conflated with risk behaviour--of course they are by no means the same thing. Connell and Kippax (1990: 168-169) note: Public and media perceptions of the AIDS crisis have strongly stereotyped risk groups. A group such as "[young] gay men" is seen as an undifferentiated bloc and discussed as if its social identity were itself a cause of the disease. Even those that understand that there are quite specific pathways of transmission may still stereotype a group by defining its in terms of just one practice. Thus [young] gay men, in relation to AIDS are often defined in terms of anal intercourse. We should note that only unprotected anal sex is a high risk practice and also that anal sex is a common practice among heterosexuals and bisexuals as well as gay men. Whether young gay men are more likely to engage in anal sex--much less unprotected anal sex--remains a matter of some conjecture which can only be answered by rigorous empirical research. Making use of the large Project Sigma cohort Davies et al (1992) found that anal intercourse among gay men is an activity engaged in by a minority of young men at any given period. In this cohort the average age of first experience of anal intercourse (20.9 years) was some five years 37 after the mean age of first homosexual experience (15 years). Quite clearly these young gay males have not been rushed into anal sex, let alone unprotected anal sex. In terms of peer-reviewed empirical studies of the actual levels of risk behaviour among young gay men the jury very much remains out. Van de Ven et al (1997), in a substantial literature review, found that USA, Danish and Dutch studies reported that young gay men (under 25s) were marginally more likely than older gay men to engage in high risk sexual behaviours. On the contrary English, Australian and Canadian studies found young gay men to be more highly knowledgeable about safe sex and also to be more precautionary in their sexual behaviours than older gays. Supporting this 'greater risk' argument, Sussman and Duffy (1996) reported that in the US males in the 13 - 19 year age group who have sex with males constituted the nation's number one exposure category. And that despite showing a high knowledge base with respect to safer sex practices many young gay men continue high levels of risk behaviour. Along similar lines Evans et al (1993) in the UK found that recent HIV transmissions disproportionately affected 15-19 year old gay men. Conversely, Davies et al (1992) in the UK, making use of the Project Sigma cohort--by far the largest study of the sexual behaviour of young men in the world--found that gay men under the age of 18 were more likely to use condoms and had less penetrative partners at any one time than their older counterparts. They concluded: We find no evidence for such traits [sexual irresponsibility, risk, need for tutelage] in this sample of young gay men, nor would we wish for them to be inferred from our discussion. What we in institutional power owe to these people is to recognise the diversity of their experience, to proclaim their right to sexual expression and to treat them as autonomous, responsible and authentic moral agents (Davis et al 1992: 270). In the US context Ekstrand and Coates (1990) found that young gay men had made huge reductions in risk behaviours in the preceding years. Of the young gay men who were seen to be at risk it was argued that this risk was due mostly to external factors such as difficulty in obtaining condoms and of the lesser social supports made available to them, rather than being due to any putative personal deficits such as immaturity or lack of restraint. Van de Ven et al (1997) conducted a study of Sydney gay youth and their behaviours numbering some 1000 participants. Here the authors found no significant differences in HIV-related risk factors between young (under 25) and older homosexually active men. Furthermore young gay men were found to be just as knowledgeable about safer sex and just as precautionary as older gay men. Finally, similar results emerged from Crawford et al's (1998) analysis of data gathered in the 1996 Male Call Australian national telephone survey of men who have sex with men. In the period 1992-1996 knowledge of safe and unsafe practices rose by 8% in men in the under 20 age group. And while there was seen to be an overall increase in men having unprotected anal sex right across the age spectrum, men in the under 20 years cohort showed the second lowest increase. Other significant findings in the Male Call survey included: Accuracy of safe sex knowledge declined with age; Young gay men were no more likely to display higher levels of sexual activity with casual partners than older gay men; Young gay men were much more likely to have been tested for HIV Young gay men showed more favourable attitudes to condoms than older gay men. A caveat must be included here: many results of the kind we have just examined must be viewed with some degree of suspicion, especially with respect to making sound age-based comparisons. There is little methodological regularity among the available studies of sexual/risk behaviour of young gay men. Studies take place in different cultures, across different historical periods and vary widely in their definitions of what exactly is a "young" gay male (in some under 18, in others under 20 or under 25). Furthermore, often the levels of risk remain merely asserted-- often with no proper comparison to older age groups. And due to the barriers imposed by institutional homophobia and age of consent legislation such as our own, studies of young gay men have tended to be very small and have usually involved very few under 18s, let alone under 16s. As such their validity remains highly questionable. Finally, in our research it was consistently observed that the majority of participants displayed a thoughtful, mature and altogether serious attitude towards safer sex practices and of the many challenges involved in negotiating the same with partners--especially when one might be "hopelessly in love".

E. Homosexuality is pathological; therefore the longer it is delayed the better This viewpoint has been totally repudiated by every major professional and scientific research body. Psychologists, Psychiatrists, Clinical Social Workers and other mental health professionals agree that homosexuality is neither mental nor emotional pathology. A great deal of earlier studies (that is up until the late 1960s-early 1970s) were of dubious validity because they tended to only involve gay men and lesbians already in therapy for mental health issues. A major breakthrough occurred in 1973 when the American Psychiatric Association--the world's largest and arguably most respected peak body of mental health professionals--removed homosexuality from its diagnostic and statistical manual of mental disorders. This action was taken subsequent to a major review of the empirical literature and interviews with leading professionals: For a mental condition to be considered a psychiatric disorder, it should either regularly cause emotional distress or be regularly associated with clinically significant impairment of social functioning. [The APA] experts found that homosexuality does not meet these criteria...[they] recognised that a significant portion of gay and lesbian people were clearly satisfied with their sexual orientation and showed no signs of psychopathology. It was also found that homosexuals were able to function effectively in society, and those who sought treatment often did so for reasons other than their homosexuality. (American Psychiatric Association 2001) Consequently by the time of the 1980 edition of the Diagnostic and Statistical Manual of mental disorders (DSMIII) homosexuality was no longer recognised as a mental illness. However, "ego dystonic homosexuality" remained as a category labelling persons "whose sexual interests are directed primarily towards people of the same sex and who are either disturbed by, in conflict with, or wish to change their sexuality" (APA 2001). This diagnostic category was dropped in the following volume (DSMIIIR) when a broader social and political analysis made it clear that because of the manifestly homophobic environment of nations such as the USA and Australia almost all gays and lesbians go through a phase in which their sexuality is "ego dystonic" (APA 2001). Personal experience of such a developmental phase was confirmed by a significant number of young gay male participants in our research.

Raising the age of consent for everyone In the course of our review we found no evidence of domestic or international professional organisational support for higher age of consent measures for young gay men. In fact the nearest thing to professional support we could find was a single paper by Judith Lancaster, a lecturer in the Faculty of Law at the University of Technology, Sydney (Lancaster 2001) In this paper Lancaster defends the current NSW homosexual male age of consent of 18 years in the face of the 1997 Wood Royal Commission's recommendations that it be lowered to 16 years (these recommendations are outlined in more detail in Section 8 below). In summary, Lancaster maintains that lowering the gay male age of consent to 16 would in effect decriminalise "acts previously understood to be paedophilia and pederasty...thereby increasing the vulnerability of young Australians to sexual predators" (2001: 34). In response we might concede the first part of Lancaster's claim is - trivially -- true: any liberalisation of criminal law will decriminalise acts currently deemed criminal offences. Yet in the light of the findings which show that the majority of young gay men seek (and find) sexual partners of a roughly similar age, and given what many of our respondents have contended, does it make any sense to label an 18, 19 or 20 year old man in a consenting relationship with a 16 year old youth a paedophile? The second part of Lancaster's claim -- which, as we have seen in Section Five above, is a generic one -- regarding a lower age of consent for young gay men as opening up possibilities for increased sexual predation has been dealt with at length in Sections Five and Six above. Finally it should be recognised that Lancaster's arguments are based solely on assertion: she neither conducts nor refers to any empirical research to support these claims.