[OutRage, March 1997]
Sydney's year-long saga of "paedophile" investigations has ended at least one life and ruined many others. Apart from exposing again the cynicism of politicians and media, and the divisions in the gay community, it has served mainly to emphasise the need for reform to Australia's age-of-consent laws, says Adam Carr.
In January the Australian press was filled with the touching tale of a young Western Australian couple who were unable to get married. A Perth magistrate ruled that Adam Cooper, aged 22, could not marry his pregnant girlfriend, Amie Willis, because she is 17, a year younger than the age specified in the Commonwealth Marriage Act. Their plight rightly drew wide public sympathy and calls to amend the Act.
To my knowledge, no-one in the press thought to point out that if Willis were a 17-year-old male, Cooper would be breaking the law in NSW, Queensland, Western Australia and the Northern Territory (and, of course, Tasmania) by having sex with him. Nor did anyone point out, if the two were both male and lived in NSW, Cooper would be in danger of being named before Justice James Wood's Police Royal Commission as a paedophile.
Counsel Assisting the Royal Commission, Paddy Ann Bergin, was quite clear about this. She chose to define "paedophiles or pederasts" as "within the terms of our Crimes Act, people who commit sexual assaults on boys under the age of 18 and girls under the age of 16." She did not mention that "sexual assault" in these circumstances includes consenting sex, because the law holds that a person below the age of consent cannot consent to sex. The World Health Organisation, incidentally, defines paedophilia as "sexual activity with a pre-pubescent child generally aged 13 or younger." The Australian Institute of Criminology supports this definition, but it seems this is not sufficient authority for the Royal Commission.
The farcical and the tragic
The decision by the Wood Royal Commission to class anyone who breaks age-of-consent provisions of the NSW Crimes Act as a paedophile has had a number of consequences, ranging from the farcical through the serious to the tragic.
The farcical consequence has been that, by most accounts, a very large number of gay men in NSW suddenly realised that they were "paedophiles or pederasts" as a result of having had at some point or other sex with a partner under 18, regardless of how old they were when they did it. By this definition I am a paedophile. So are most of the gay men I know, and so, no doubt, are many, perhaps most, of the readers of this article. It might be salutary if we all wrote to Paddy Bergin and informed her of this fact.
The serious consequence has been that this ridiculous misdefinition has destroyed the possibility (already fairly remote) that the Royal Commission might make a useful contribution to the community's knowledge of the sexual abuse of children, and enable governments to do something about what is undoubtedly a serious social issue. By defining anyone who has sex with a person under the legal age of consent as a paedophile, the Commission has let the real paedophiles, those who have sex with children below the age of puberty, when meaningful consent is close to impossible, off the hook.
In this matter Wood and Bergin have committed a similar error to that perpetrated by Senator Amanda Vanstone, who in the heat of last year's election campaign compared Paul Keating to Nazi propaganda minister Josef Goebbels. As several commentators pointed out at the time, this encouraged the belief among the historically illiterate (a category which Vanstone is now busily enlarging) that if Keating, a mere politician, was as bad as Goebbels, it followed that Goebbels, a promoter of genocide, was only as bad as Keating. The Wood-Bergin definition leads naturally to the conclusion that if I and everybody I know are paedophiles, then paedophiles must be harmless and grossly misrepresented chaps.
The tragic consequence has of course been the suicide in November 1996 of a retired judge of the NSW Supreme Court, David Yeldham, after he was named as a paedophile by Franca Arena, a NSW ALP Legislative Councillor, under cover of Parliamentary privilege. Yeldham was a married man who appears in middle age to have developed an interest in sex with men, found mainly at beats, which brought him to the attention of the police and thus of the Royal Commission. No evidence has been produced before or since his death that Yeldham was a paedophile within the correct meaning of the word. Yeldham had told the Commission that he "abhorred" paedophilia but that it was possible he had had sex with men under the age of consent without knowing it.
A prominent gay activist, Richard Cobden, accused Arena directly of responsibility for Yeldham's death: "David Yeldham was assassinated," he said. "Franca Arena pulled the trigger; Justice Wood and Paddy Bergin loaded the gun and handed it to her." But Arena has incurred no penalty for her act of vindictive outing, a practice which, incidentally, the same Franca Arena tearfully denounced a few years ago when she alleged (incorrectly) that gay activists were threatening to out members of her family. The NSW Premier, Bob Carr, has made some disapproving noises, but he has no real sanctions to apply to Arena, who is a backbench member in her last term. Carr in any case has to tread very carefully on this issue, since the Royal Commission's entanglement in matters paedophile arose in the first place from the push by a powerful anti-gay Catholic faction in his Caucus.
Yeldham has been the only prominent victim of the Royal Commission and its attendant press feeding frenzy to take his own life so far, but he has not been the only person to suffer during the current wave of contrived moral panic about paedophilia. Another has been the former Australian ambassador to Cambodia, John Holloway, who was acquitted in November by an ACT magistrate on charges under the Commonwealth Crimes (Child Sex Tourism) Act, but whose career in the Foreign Affairs Department has nevertheless been effectively ended by the scandal.
Holloway, so far as I know the first openly gay man to be appointed an Australian ambassador, was apparently the victim of a shadowy plot by Christian aid agencies, Cambodian politicians and (possibly) the French government to discredit him by supplying information (and misinformation) about his sexual activities in Cambodia to the Australian authorities, and by procuring two Cambodian teenagers (whose real ages were never determined) to testify that they had had sex with him. But Holloway is as much a victim of the paedophile panic as Yeldham, since Foreign Minister Alexander Downer's pledge in May 1996 (as the paedophile frenzy was hotting up in Sydney) to "expose" a supposed "nest of paedophiles" in his department encouraged Holloway's enemies to use this method of discrediting him.
Holloway and Yeldham's path to parliamentary and press crucifixion had already been trodden by John Marsden, a prominent and openly gay lawyer Sydney lawyer and civil liberties campaigner. Marsden was named as a paedophile in the NSW Parliament in 1994 by another ALP MP, Deirdre Grusovin, on the basis of hearsay "evidence" supplied to her by a convicted drug dealer and self-described paedophile, Colin Fisk (who later admitted he had done it for "media dollars" and that he had never seen or met Marsden). Although Marsden has not been charged with any offence or called to give evidence at the Royal Commission, he concedes that the charges of paedophilia, which he furiously denies, will stick. Marsden is still alive and kicking: he is made of tougher stuff than Yeldham and has not suffered the same destruction of his career as Holloway, though it has been damaged. But his public pillorying by Grusovin set the precedent that others have followed against more vulnerable targets.
Ministers, mums and Marsden
It is a curious coincidence that both Marsden and Yeldham should have been named by female members of Parliament. In Marsden's case, the motive seems to have been straightforwardly political. Marsden has been a member of the Liberal Party and was a known friend of the then-Premier, John Fahey, against whom the ALP faced a hard-fought election in 1995. Grusovin was following the old Labor precept that when you want to beat a dog, any stick will do. In any case, the NSW ALP's Catholic Right, to which Grusovin belongs by birth (her brother is the Right's godfather Laurie Brereton) has no particular fondness for gay men, and many still privately subscribe to the notion that homosexuality is an upper-class (and probably Protestant) perversion.
There is more to it than that, however. The gay community has generally felt in recent years that women politicians are "naturally" more sympathetic to our cause than their male colleagues (this may be called the Carmen Lawrence Illusion). It is true that even the most conservative women MPs eschew the kind of crude homophobe rhetoric we are used to from their male equivalents: compare Flo Bjelke-Petersen's style with that of her beloved husband, or Bronwyn Bishop's with Wilson Tuckey's. But we tend to forget that many women politicians are of the age-bracket that have teenage sons, and some tend to react viscerally when the issue stops being one of abstract support for gay rights and comes closer to home.
Thus we saw Mary Easson, an MP who sought and got gay votes to win her Sydney seat of Lowe in 1993, joining the Liberal homophobes of the Lyons Forum in signing the petition to banish the Mardi Gras telecast from "family viewing" time. And thus we saw the Victorian ALP's Caroline Hogg and Maureen Lyster, two of the most gay-friendly politicians imaginable, reacting very badly to the Victorian AIDS Council's "two boys kissing" poster in 1991. Too late VAC realised that the ministers looked at the poster not as ministers but as mums, and saw their two boys kissing. This "family fear factor" seems also to be what lies behind Franca Arena's phobias about gay men in general and "paedophiles" in particular.
It should not be thought, however, that the Royal Commission's only victims have been celebrities. The Sydney gay press has already carried one article about an enterprising 16-year-old blackmailing older gay men after having sex with them, threatening to shop them to the Royal Commission if they didn't pay up. The NSW Police (whose corruption the Royal Commission was originally set up to investigate, and who are delighted to assist Wood and Bergin in their pursuit of paedophile red herrings, since it takes the heat off them) have put on a great show of zeal in charging gay men with violations of the age-of-consent sections of the Crimes Act. By December the gay community monitoring group Commission Watch believed that 27 men had been charged, though it did not know what percentage of these charges involved "Bergin" paedophiles as opposed to real ones.
According to Commission Watch spokesperson Jennifer Wilson, at least nine men have committed suicide after being charged. "It is not surprising that these men felt suicidal after their experience in the Commission and the ensuing treatment at the hands of the NSW Police," Wilson said in December. She said that the group was preparing a submission to NSW Attorney-General Jeff Shaw on the issue, and particularly on NSW's discriminatory age-of-consent law (16 for heterosexuals, 18 for gay men). "If the age of consent law was equal, then I doubt whether any of the men that we are aware of who have been charged recently would ever have been charged."
John Marsden is obviously not the most impartial of commentators on the Royal Commission, but he is a lawyer of many years experience as well as president of the NSW Council for Civil Liberties, so his views must be taken seriously. In September he attacked the CommissionŐs procedures in very strong language, saying that Wood and Bergin "had failed as persons in pursuing justice and equality," and that they were "not fit and proper persons to hold high office in the state." He cited as an example the evidence of a witness called KR5, who was interviewed by Commission investigators for 35 hours, and who apparently named a string of people who in the 1970s visited a Kings Cross bar called Castellos, where paedophile activities allegedly took place.
"Why they went there is not relevant," said Marsden. "The investigators, the staff, the lawyers at the Royal Commission all know who KR5 has named, and, as Mr Justice Wood is handing all this information to the police, they will forever be kept in police records. None of the persons has had the opportunity of defending themselves. Not one of those persons has had the opportunity of knowing whether their name has been blackened or tainted by a witness providing evidence to the Royal Commission. . . This business of naming persons, guilt by association, guilt because of oneŐs sexuality, is something for which Mr Justice Wood and his investigators should hang their heads in shame. All the grounds for equality for gays and lesbians have been set back years because of the excesses of this Wood Royal Commission." In another case, a Wollongong city councillor was summoned by the Commission to answer allegations about events 24 years ago, when all sex between men in NSW was illegal.
Not that transgressive!
Faced with these attacks, the Sydney gay community had to spend most of 1996 responding to the unfolding saga of the Royal Commission and related events. Commission Watch was formed to monitor the Commission and respond to its doings and sayings, and to try to get a word in edgewise in the blood-crazed Sydney press. And on the whole, they didn't do a bad job. Commissioner Wood felt the heat sufficiently to be forced to deny that he was conducting a homophobe witchhunt (but not to retreat from his inherently homophobic definition of paedophilia), and some press attention was gained for the gay community's point of view (including a stern editorial rebuke in The Australian, always a sign that one is on the right track). Both Sydney's gay newspapers, Capital Q and The Sydney Star Observer, lashed away at the Commission at every opportunity.
It has been noticeable, however, that the Sydney community (or its leadership, to the extent that it has one) has made a deliberate decision to define very carefully what turf is to be defended and what is not. Commission Watch's Jennifer Wilson was careful to state that in no circumstances were paedophilia or paedophiles to be defended: "I want more discussion of paedophilia in our community," she said. "I want us to be outraged that it happens, to be concerned for our children and other people's children. I want the fact that some men do seek sexual contact with young children (and by young I mean 14 or under) to be unacceptable. I want us to recognise the difference between homosexuality and paedophile contact between men and boys - and to support one and abhor the other" (Sydney Star Observer, 12 December 1996).
Those of us willing to admit to being old enough to remember the early 1980s may recall that this position is very different from that adopted by the gay press and activists at that time, when another paedophile frenzy, this time centred in Melbourne, gripped the press and politicians. At that time gay activists felt obliged not only to defend the civil rights of paedophiles, but also to defend the practice of paedophilia (properly defined) itself: to use the rhetoric of children's liberation to argue against age of consent laws and the right of consenting adults and children to have sex with each other. Gay Community News, predecessor of OutRage, devoted a whole issue in September 1981 to these principles, and the Melbourne lesbian activist Alison Thorne lost her job as a teacher for defending them after the ALP premier, John Cain, declared her "unfit to teach."
Furthermore, actual self-defined gay male paedophiles spoke out publicly in their own defence. Paedophile Support Groups led a tenuous but visible existence in Sydney and Melbourne (the police raid that ended the Melbourne group's existence was the occasion for Thorne's self-martyrdom). Self-declared "boy lovers" (a term preferred by them to paedophile, although paedophile is only boy-lover in Greek) such as Emu Nugent got an extensive run in Gay Community News and in OutRage in its early years. The criminologist Paul Wilson (who seems to have faded from public debate in recent years) published a book, The Man They Called a Monster, which, while not a defence of paedophilia, allowed gay male paedophiles to speak for themselves and offered some scientific "cover" for their defence.
This phase ended decisively in 1984 with the advent of AIDS. The gay community's leadership at that time decided that AIDS was such an all-consuming threat, and our need to establish good relations with governments so that we could get funding for our AIDS services was so great, that all that stood in the way of these priorities must be abandoned, and that definitely included anything that linked respectable gay activism with paedophilia. That decision (in which I participated) was necessary and correct at the time: when I was appointed to the Victorian ministerial AIDS advisory committee in 1986, the only thing the minister of the day wanted to know about me was whether I had ever published anything in defence of paedophilia (I had, but didn't let on). But it has meant that the community's collective memory of its past involvement in this issue has been lost.
It is certainly striking that the younger generation of gay activists, who have come to political maturity since the advent of AIDS, have had no inclination to return to the position of defending "boy lovers" and their carnal pursuits that the radical wing of gay activism adopted in the early 1980s. Despite all the rhetoric of queerness and transgression and all the excoriation of the 1980s generation of activists for our rotten conservatism and complacency that our pierced and goateed juniors are pleased to indulge themselves in, I have not seen one sentence in the gay press from any of them taking positions on paedophilia half as radical as those taken, say, by Graham Willett in Gay Community News in 1981.
But I have seen comments such as this from Peter O'Shea in Capital Q (22 March 1996): "Of course, no adult sex with minors of any sex can be morally defended. Nor, unfortunately, can gay paedophiles be easily disowned by the Gay Movement, but it looks as though we are going to have to try." I hope for his sake that O'Shea has never had sex with a male person aged under 18 (a minor by NSW law): those will be very indigestible words if he has to eat them.
It was particularly striking that the only gay organisation in Sydney to "break ranks" and support the Wood Royal Commission was the youth services group Twenty-Ten. "Twenty-ten categorically deplores and condemns the sexual exploitation of any human beings and, in particular, children," the group said in its submission to the Commission. "Twenty-Ten applauds the actions of the Royal Commission which mirror our desire to eliminate the sexual abuse of children and improve mechanisms for the protection of children." The Twenty-Ten submission said that the Commission's use of the legal age of consent to define paedophilia was "unjust and illogical." But it called for the age of consent law to be reformed only to the extent that gay sex for young people would be legal if "the difference in age between them and their partner is no more than two years." In other words, Twenty-Ten would still make it a crime for a person over 18 to have sex with a 15-year-old: so much for the radicalism of youth.
Consenting politicians in private
The saga of the Wood Royal Commission has, if nothing else, served to bring to the boil the issue of reforming Australia's inconsistent, illogical and unjust age-of-consent laws, which discriminate explicitly against gay men in two states and one territory and indirectly against gay men in another state (Tasmania, of course, has no age of consent for gay men, since sex between men remains illegal). This state of affairs is hardly surprising. Australia being a federation of six states and two self-governing territories, and the regulation of sexual conduct being a state-territory matter, the age-of-consent laws, like many other laws, are naturally an inconsistent tangle, the result of the different political and historical circumstances in each jurisdiction.
In Victoria, South Australia and the ACT, where the decriminalisation of sex between men was carried out by relatively rational political processes, the age of consent for all kinds of sex is 17 (in South Australia) or 16 (in Victoria and the ACT). In NSW, where decriminalisation in 1984 came after three years of parliamentary melodrama, the discriminatory age of consent was seen as a necessary compromise by the premier of the day, Neville Wran. In Western Australia, where the gay male age of consent is 21, the discrimination arose from a bargain with the Liberal-National-controlled upper house. In Queensland, where the age of consent is 16 for everybody but 18 for anal sex (heterosexual or homosexual), the ALP government had no upper house to deal with: the de facto discrimination against gay men (no-one has suggested how heterosexual anal sex might be policed) seems to have arisen solely from Wayne Goss's eclectic personal prejudices. The Northern Territory also has a discriminatory age of consent.
In February 1995, eleven years after Wran's decriminalisation bill, the NSW Gay and Lesbian Rights Lobby launched a campaign to get the age-of-consent laws reformed, producing a draft Equal Age of Consent Bill, which would establish 16 as the age of consent for all kinds of sex and both genders. The Lobby argued that the unequal age of consent was discriminatory, and thus contrary to government policy, allowed the press to portray all gay men as paedophiles, and also impeded the fight against HIV/AIDS by making safe sex education for young people harder. Under the Royal Commission's terms of reference, the age of consent is one of the things Commissioner Wood will report to the government on. So, having established himself as no friend of the gay community, Wood may yet give the not-very-courageous Bob Carr the necessary cover to act on this touchy subject.
Further momentum was given to the campaign in December by the release of a draft Model Criminal Code in a report to Australian governments by the Standing Committee of Attorneys-General. The draft recommends a uniform age of consent for everybody of 16. The release of the draft by the Standing Committee does not of course mean that the Attorneys-General have endorsed its contents. It seems highly unlikely that the conservative governments in Queensland and Western Australia will be interested in reform: the one in the Northern Territory might be. But it does increase the pressure on all politicians to act, and ought to do so especially on Australia's only ALP government in NSW.
Lowering the age of consent for gay men in NSW to 16 would take some of the heat out of the issues being raised by the carryings-on of the Wood Royal Commission, but not all of it. Many gay men have had sex with partners aged between 16 and 18: a lot fewer will have had sex with partners aged below 16. But young gay men aged between the age of puberty and 16 can and do freely consent to having sex, or go looking for sex, often with men aged 18 or older. Ross Bennett of Twenty-Ten estimates that 95% of the 13 to 16-year-olds who come to the organisation's refuge are sexually active. Gerard Webster of the NSW Sexual Abuse Counselling Service says that "We all know stories of 12 or 14-year-olds at beats." In recognition of this, the countries of the European Union are adopting a uniform age of consent of 14. If Australia sets an age of consent of 16 (and that is still a big if), it will still be behind the trend.
The difficulty is that any arbitrarily drawn line will leave someone on the wrong side of it. Some 12-year-olds are ready, willing and able to give meaningful consent to sex, while some 20-year-olds are in positions of dependence and powerlessness that leave them vulnerable to exploitation and in need of the protection of the law. My earlier sarcasm at Twenty-Ten's expense notwithstanding, their concerns about the exploitation of gay youth by older men deserve to be taken seriously. But an age of consent of 18 is not protecting gay youth from exploitation now, and an age of consent of 16 (or 14, or 12) wouldn't make much difference one way or the other. Only changes in community attitudes and the empowerment of gay youth can do that.
What a realistic age-of-consent law would do would be to create a law that would be treated with greater respect, and make the prosecution of genuine sexual exploiters of children (properly defined) more certain and more acceptable. In retrospect, I think those gay activists of the 1980s (myself included) who took up the defence of "boy lovers" and their self-proclaimed right to have sex with children below the age of puberty were mistaken, while those who argued for greater caution (and the debate in the September 1981 Gay Community News still makes worthwhile reading on this) were correct. While some children may be able to give consent to sex, the great majority cannot, and even in early adolescence few young people have sufficient independence to give meaningful consent.
My view is that an age of consent of 14 would serve to separate the sheep from the lambs, so to speak, and allow real paedophiles to be prosecuted while protecting the rights of gay men of all ages. Another important reform would be for all states to copy Victoria's "sliding scale" arrangement, so that teenagers who have sex with each other would not be treated as criminals regardless of age. At the moment, of course, an age of consent of 16 will be quite hard enough to achieve, and is probably an acceptable compromise. If Justice Wood and his inquisitors unwittingly contribute to winning that reform, history may forgive them their various crimes, although their victims (those who are still alive) probably will not.
All direct quotes in this article are from news stories and commentaries in Capital Q and The Sydney Star Observer, for whose excellent coverage of this issue current and future writers should be grateful.