This transcript has been lightly edited for clarity
Hi, I'm Dr Alison Laurie. I was the Gender and Women's Studies Programme Director at Victoria University at Wellington, here in New Zealand, for many years. I'm a writer, an oral historian and a lesbian/gay activist.
Today I'm going to be looking at the legal background relating to same-sexuality in Aotearoa / New Zealand, and considering many of the changes that happened through the years.
I'd like to start off by thinking about the situation before European contact. Maori, the indigenous inhabitants of this country, came here some hundreds of years ago. There's various discussions about that: some people think it might have been 800 years ago, other people think it could have been 1,200 years ago, but whenever, Maori came in a series of canoes known as waka and settled in various parts of the country.
Instances of same-sex relations in Maori culture are interesting. It certainly appears that there were not really restrictions against that kind of behavior. There were very strong restrictions in Maori culture about who could marry; those kinds of questions of genealogy and what would be appropriate there. So far as we know, and more research is being done on this topic by a number of prominent Maori scholars, and quite a bit has been written about it, relations between men or between women were reasonably well accepted in Maori society.
Some of the scholars have gone back to look at what possible terminology may have been used, and in the very famous story of Hinemoa and Tutanekai, which is usually interpreted as being a heterosexual love story set in Rotorua, there's a reference in that story, which has been noted independently by several Maori scholars, to takatapui, a Maori word meaning intimate companion of the same sex, and Tutanekai had an intimate companion. He had his takatapui, Tiki, whom he was very, very close to. So that would imply that this was well accepted that you would have someone like that.
Of course, it wouldn't mean that you didn't marry. Particularly if you were high-born, you would have a responsibility to provide children, heirs to carry on the bloodline. But what you might do with your own sex, because there couldn't be children from that, is probably not taken particularly seriously, or it's certainly not seen as a threat to any kind of social order.
There are some early European records based on this. One source is a French source from Roux, who was a Frenchman on the ship The Mascarin in 1772, and he observed, "These natives are greatly given to embracing each other, but in their caresses they display a most noticeable ferocity. They're strangely fond of kissing each other, and this they do with great intensity. They never weary of admiring our skins, especially their whiteness. They sucked the flesh with an astonishing greediness." So, there are a number of reports like this from European observers, which clearly would show that this was not at all unusual.
And there are other kinds of reports, particularly things in song, which suggest that through the 19th century there's plenty of this kind of activity going on.
And we also know that some Europeans were involved with Maori. In particular, the Reverend William Yate, who worked for the Church Missionary Society in the Bay of Islands, and he was closely involved with a number of young Maori men. He was reprimanded by the church, and that has been written about to some extent, but he was not the only one. So, what we can assume from that is that before the coming of European law and European attitudes toward same-sexuality there was a much more open, much more natural attitude of simple acceptance of this among Maori.
So, the first people to come were whalers, sealers; they came from various parts of Europe. And when we look at the mix of people coming into Southland, and many of those people married or at least set up some kind of family unions with local people, we now know that there would have been people – men, all men – from Holland, from Norway, from Denmark, Aboriginal men from Australia, Native American men from North America, a lot of groupings from the whole world, really, were coming in and were involved in these kinds of different activities.
At the same time, a bit later, the missionaries began to come. The first ones were the French. They came in the north. Then came the Church of England.
And by the time we get to about 1800 the Church Missionary Society is starting to get concerned about what it sees as lawlessness, a lot of Europeans who aren't under any kind of control, they seem to be breaking the law a lot, there's a lot of drunkenness and so on, so they begin to talk about the fact that it would be a good idea if this country, which now became known as New Zealand, if this country were to be brought into the British Empire as a colony. And so that was discussed for some time and eventually there was a treaty signed that's known as the Treaty of Waitangi, and that was signed in 1840, and it was signed between the British Crown, and at that time that was Queen Victoria, and many of the Maori tribes. Not all of them, but many of them.
And probably, British law applies from this time. It's clear that the British weren't totally certain of this because in 1858 they passed a law which is known as the English Laws Act, which states that all laws in force on the 14th of January, 1840, apply to New Zealand. So they may have thought that there could be some difficulty in being quite certain that all these laws would apply here.
So, once the law is applied these laws included prohibitions against crimes known as buggery or sodomy, that is to say sexual relations between males, for which the penalty was imprisonment from 10 years to life. And in fact, the death penalty for these acts had been abolished only in 1836 in England, so that's four years before the treaty.
The British law against same-sexuality was in fact put into force in 1533 by Henry VIII when he took over the church, established the Church of England, and this is the first law on his books. And you might say: Well, what did Henry VIII have against sexual relations between men? And it seems likely that he had nothing against it, it was just a very useful law to charge into the monasteries, and on the pretext that they're committing a crime because they're having sex together, and of course everybody thought that's what monks and priests would be likely to be doing, then you could take over the monastery and confiscate all their property, and that was very enriching for the British throne. So, that law had been enforced right from then.
So when we get to 1836 the death penalty is removed, so that's the first change in all those years, and it's this law then, from that time, that applies in New Zealand.
And the Offenses Against the Person Act, 1867, that's the first New Zealand law which passed, actually here, which criminalizes buggery and it retains the punishment of imprisonment from 10 years to life.
And then in 1893 the General Assembly passes the Criminal Code Act, which repeals that but retains the sections against buggery. Now, what's important about this is that this is based upon the English Law Crimes Act of 1885 which criminalized sex between men, for which consent was no defense, and it's any kind of sexual relations. And that's the law which Oscar Wilde was imprisoned for in England. So, this law is the one that then gets passed here, and that's the one that continues.
There are no laws prohibiting sex between women, and you could take several views about that. One is that certainly for many centuries, because of sexist attitudes about men and women, it was thought that women couldn't really be having sex. Since women didn't have penises there's no way that women could penetrate one another, so sexual relations don't happen between women. That's one school of thought.
Another school of thought is: Who cares what women and children do anyway, so long as you can control them economically? And certainly, the other law that came to New Zealand was the law regarding the position of women, which, based on an opinion in the late 18th century said that women were the property of their fathers, and on marriage the property of their husbands, so in a situation like that it doesn't really matter what women do. So, that's one thought about why the laws didn't apply to women.
The other thought is that when the discussions were held in England in 1885, revising the law to make it apply in private and saying that consent was no defense, there was an attempt to criminalize lesbianism. It passed through the House of Commons but was rejected in the House of Lords by Lord Desart, who stood up and made a very stirring speech and said that mentioning lesbianism in the law would be to bring it to the attention of women who've never heard of it, never dreamed of it, never thought of it, and that would be a very grave mischief. So the idea there is that women are very suggestible, and that if you mentioned it in the law they might get the idea and then they might go and do it. So, that's the other opinion about why such a law was not passed here.
In other parts of the world there was legislation against sex between women, especially in some of the states in the United States and other parts of Europe, so that wasn't a universal thought, but it wasn't criminalized in England and it wasn't criminalized here.
So, after the late 19th century, we move on into the early 20th century. There's another Act in 1908 and that reaffirms the sections of the Criminal Code and the kinds of punishments that applied. Some of the punishments are pretty terrible. The 1893 Act punished buggery by life imprisonment, hard labor and flogging. And then it's not until 1941 that the punishment of flogging is removed from New Zealand law, retaining life imprisonment; that's the 1941 Crimes Amendment Act. And not until 1954 is the punishment of hard labor removed from the law, but it retains life imprisonment.
Now, this country has followed what happened in Britain fairly closely, although we became a dominion in the early 20th century, meaning that we had local self-government; nonetheless we retained the British Crown and a certain kind of cultural cringe in terms of legislation and things of that kind. So, what was very important was the Wolfenden Report, which reported in 1957 to the British Parliament. The Wolfenden Committee was set up to look at prostitution and to look at homosexual behavior, and that committee recommended the decriminalization of prostitution, with some regulations around that, and it also recommended decriminalizing private, consenting homosexual behavior; and that's in 1957.
So, that was known about here, and from then there are certain discussions about it but there's no real commitment to any kind of decriminalization.
And although the Sexual Offenses Act of 1967 abolishes total prohibition of homosexual acts in England, with an age of consent of 20 years, that discussion is not really held here.
However, in 1961 the Crimes Act reduces penalties for homosexual acts, but it introduces lesbianism into the law by criminalizing sexual relations between women over 21 and girls under 16. And you can say, well, that's fair enough because it's abuse of minors, but it's clearly a move that means that once you get some kind of recognition of lesbianism into the law then you can play around with how you interpret that by saying that consent is no defense, you can play around with those ages.
And as we enter the 1960s we are entering a decade where the first people of the baby-boom generation born during the war are starting to come of age, and they're beginning to question many things. So the whole question of Homosexual Law Reform becomes part of those discussions as that decade continues. And I'll be talking about that later in another talk.
Transcript by cyberscrivener.com