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 Six - Primary Arguments in Favour of Equalisation

The seven following arguments constitute the core of the positive case for equalisation. Again 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) ; Peer-reviewed academic research Public statements by relevant professional organisations Our empirical research with young gay men and health and welfare workers who provide services to that population. Pro-equalisation websites.

A. Discrimination against young men who are gay The bare reality that the age of consent for gay men in NSW is 18--fully 2 years more than the age at which lesbians and all heterosexuals are able to legally consent to sex--illustrates that the law is discriminatory in terms of how it deals with sex between males. Furthermore, this law "is not tied to when a person is capable of consenting. By setting the general age of consent at 16, the law already recognises that men and women can consent to sex at 16" (NSW Gay and Lesbian Rights Lobby 2001). In addition, the penalty provisions for infringement of the homosexual age of consent provisions are harsher than those for a breach of the general age of consent provisions. That is, the penalty for sexual intercourse with a child between 10 and 16 is 8 years imprisonment, but for homosexual intercourse it is 10 years. There is no known reason for the harsher penalty provisions for homosexual intercourse in these circumstances. Interestingly, nowhere in NSW law is it claimed that young gay men are in any way less capable of deliberate volition than young heterosexuals; nor in the researchers' review of materials could any evidence be found in contemporary developmental psychology that young gay men were any less capable of reasoned consent than their heterosexual peers. Although it was outside the brief of this report to engage in extended moral, legal and philosophical debate around this issue, this prima facie fact of discrimination needs to be reiterated. In our review of materials and in our discussions with young gay males and with the health and welfare workers who service that population this simple but weighty argument was consistently the first to emerge, and most often seen by them as the strongest case against such legislation. As one young man said, "the age of consent [for gay men] throws equality out the window!" Clearly what we are dealing with here is a social fact--not a contention subject to debate and refutation. The only intellectually and morally respectable position (consonant with the empirical evidence regarding the developmental maturity of young males) for those who feel that 16 is too young for young gay males to start having sex is to call for the age of consent for all other persons to be raised to a higher age. This would at least address the equality issue and avoid the charge of homophobic bias. However, we would maintain that such a position has little popular or research support.

B. Lack of stakeholder consultation Proponents of the current NSW legislation might contend that, whatever its flaws, its stems from the benevolent intention of protecting young gay men from predation, abuse and accompanying psychological distress. However, even if we were to view such intentions very charitably (that is to assume that they are nobly free of any possible homophobic motivation) and also to gloss over the fact that there is little strong evidence for the phenomena which they feel young gay men must be protected against, we would still have to adjudicate them to be largely paternalistic, top-down and undemocratic in nature. At no stage in the life of this legislation have the opinions of key stakeholders (young gay men, their partners, community organisations, health and welfare workers who service these groups etc.) been seriously taken into consideration. Moreover, no empirical studies of the efficacy of such legislation--much less of the experience of those living under its dictates--have been commissioned by successive state governments.

C. Current legislation provides tacit support to extant homophobia--therefore adding to the oppression of young gay males Growing up in a generally heteronormative milieu young gay men face many threats to their sense of self-esteem and physical and psychological well being. In Australia young gay men are particularly at high risk of committing suicide (Kendall and Walker 1998a, 1998b). Kulkin et al (2000), in a review of the literature on suicide among gay and lesbian adolescents, found that: Young gay men are up to 300% more likely than their heterosexual peers to commit suicide. Suicide remains, by a wide margin, the leading cause of death for young gay men. Key predictors of suicidality in this cohort are exposure to factors which increase isolation, discrimination, levels of loneliness, and factors which lower self-esteem. Given all this it would seem advisable to call for the immediate review of any legislation or programs which might offer (even tacit) support to homophobic elements and which might negatively impact on the social integration and self-esteem of young gays and lesbians. Certainly a number of our respondents viewed NSW age of consent measures in this light: in fact the extremely negative symbolic message it was seen to transmit -- that is of sex between men being something shameful, disgusting and potentially dangerous -- was considered by many young men to be the most problematic aspect of the legislation. They noted that although such legislation was simply the latest in a long list of insults to their much-maligned sexual identity, for some it could well be "the last straw".

D. The higher age of consent sets up barriers to essential public health, welfare and educational practice A number of researchers working in other nations (like the UK: Poulter 1991; Evans 1989/90), and other Australian jurisdictions (like West Australia: Kendall and Walker 1998b; Bull et al 1991) with unequal age of consent measures, have noted the significant impediments imposed by such legislation in terms of essential public health, welfare and educational practice with young gay men. These impediments are particularly problematic when one considers the message emerging from the extant research and from professionals in the field. The message is that for young males in their mid-teens this age and developmental period is a crucial stage for information, education, and support. We have just seen cogently demonstrated the need for measures designed to raise the self esteem, empowerment and social integration of young gay men in the face of suicide risk. And the studies reviewed in Section Five of this report alerted us to the need for appropriate and congruent sexuality education (inclusive of but not reducible to safer sex messages) for this population. Not surprisingly this issue was also one of the chief concerns of health, welfare and counselling workers who participated in our research. All reported huge difficulties with providing information and support around sexuality issues by virtue of the fact that they could be seen under the NSW Crimes Act (1900) as aiding and abetting a criminal activity -- leaving them open to potential prosecution and their agencies open to potential loss of funding from the state government. Some examples of the types of specific incidents where workers felt they were unable to provide an appropriate service to their clients because of such legislative impediments included: Workers from the Aids Council of NSW being legally advised not to supply condom use instructions along with free condoms which they were to distribute at a under 18 Gay and Lesbian dance party organised by the Mogenic collective. A counsellor being unable to provide a 16 or 17 year old client new to Sydney with information about sex-on-premises venues, chat rooms and phone-lines where one might find a partner, and also being prevented from supplying important details about such services, safe sex and personal safety policies and provisions. Workers from a gay and lesbian youth support organisation being unable to discuss sexual issues with 16 or 17 year old male clients in all but the most abstract and hypothetical terms--despite knowing that some of these individuals had been previously involved in sex work on the streets from ages as low as 13. Though we did not interview any teachers in the course of our research a common theme that emerged from all of our focus groups was the failure of many high schools--both state and private--to provide education on human relationships and sexuality including concrete safer-sex messages that referred to homosexuality in anything but the most cursory fashion. Though our respondents felt that this situation had a number of causes it was widely believed that current NSW age of consent legislation exacerbated the problem. They believed it provided ill-informed, uneasy, or just plain homophobic school administrators the perfect excuse not to deal with these important human relations issues in their programs. Finally we might note that the lack of directness, frankness and explicitness by health and welfare professionals in discussions about gay sex with their underage clients has, at times, been interpreted by young gay men as insinuating that their sexuality is somehow dirty, shameful and pathological. For some of our young gay male respondents this experience was just the latest of a long line of denials, snubbings and insults on the part of parents, teachers and doctors. One young man was moved to comment that such treatment over the years made him feel like "toxic waste"

E. Current legislation abets corrupt law enforcement practices and extortion of gay men This concern was voiced repeatedly in the Wood Royal Commission of 1997 (see Section Eight below for a listing of its age of consent recommendations) and was echoed by a number of our focus groups -- both those with young persons and health and welfare workers. Though a number of respondents spoke of young persons (and/or their older partners) known to them being highly fearful of blackmail and extortion attempts if the facts their relationship were to be discovered by police (or other figures with malign intent), no actual accounts of corrupt police behaviour in this regard were voiced.

F. The unequal age of consent creates potential (and unnecessary) divisions within an oppressed group Though no evidence of extortion/blackmail was tabled by our respondents, workers involved in groupwork and individual supportive counselling with young gay men commented that current legislation worked to divide 16 and 17 year old gay men from older gay men and the friendship, wisdom and survival skills they might offer within an oppressive social system. The barriers imposed on potential "mentorship" and unity in the face of homophobia were seen by participants as particularly damaging. Especially noticeable to those professionals involved in groupwork activities with this population was the reticence of gay men in the 18-25 year age group to engage with 16 and 17 year olds in the group context. This reticence, they felt, was almost certainly due to the fear of innuendo and to the possibility of legal ramifications.

G. Criminalisation of a group of young persons with no measurable benefit to them or wider society We have seen above that any positive effects of NSW homosexual male age of consent legislation remain, at best, a matter of some conjecture: firstly because many of the ostensibly harmful effects they seek to remedy are called into question by empirical studies into the actual sexual behaviour of young gay men; secondly because, quite simply, no government has bothered to subject this legislation to performance evaluation. We can be sure however that sexually active 16 and 17 year old gay men are potentially criminalised by these measures. And with criminalisation proceeds a whole host of concomitant negative effects-- such as those outlined in subsection "D" above.