Meeting Nineteenth-Century Gay Man

A paper presented to the First National Gay and Lesbian History Conference, 
Melbourne, November 1999

1. A Case of a Peculiarly Disgusting and Morally Appalling Character

On a Saturday morning in February 1884, 200 people crowded into the police court 
building in Gheringap St, Geelong, to listen to the "disgusting particulars" of a 
committal hearing. Edmund Redden, a 27-year-old labourer, and Richard Nicholas, a 
41-year-old cook employed in the Geelong police barracks, were charged with 
"having attempted to commit an unnatural offence," namely, "the abominable crime 
of buggery." Redden, reported an eyewitness, "trembled violently, and appeared to 
acutely feel his unenviable position in the dock." 

Constable Richard Breen, in his deposition, said that he was in his room at the 
barracks when heard a noise. He went to investigate, and found Redden and Nicholas 
in the outhouse. "I saw the prisoner Nicholas lying on his face: all round his 
fundament was naked. The prisoner Redden was on top of the prisoner Nicholas, 
working himself similar to a man having sexual intercourse with a woman. The 
prisoner Redden said 'Move your legs.' The prisoner Nicholas complied voluntarily." 

Breen went to fetch Sergeant Swale. When they returned, he said, he heard Nicholas 
say, "You are no bloody good at fucking." Nicholas's "fundament," he said, was 
"naked and red," while Redden's penis was "exposed and erect." Having satisfied 
themselves on these points, Swale and Breen then arrested the two men. On arrest, 
"the prisoner Nicholas said, 'I wish I was dead.'" Later, Nicholas said "Sergeant, I am 
sorry for this. It is the first time I have ever been in trouble in the Colony. This man 
[Redden] must have laid a trap for me." Redden said, "I have been 28 years in 
Geelong and have never before been in trouble." After hearing the police evidence, 
the magistrate committed them for trial. Redden (who, unlike Nicholas, had legal 
representation) successfully applied for bail.

The two appeared before Judge Williams of the Supreme Court on 18 July. Redden 
was represented by Sir Bryan O'Loghlen, Bt, QC (later Premier of Victoria): 
Nicholas was again unrepresented. The Crown Prosecutor, in his opening remarks, 
said it was "a case of a peculiarly disgusting and morally appalling character." After 
the police evidence had been repeated, Dr Maberly Smith testified that he had been 
summoned by the police on the night of the arrests to examine the men. Redden, he 
said, was "perfectly drunk." An anal examination was "entirely negative." But on 
examining Nicholas, he said, "I found the anus largely and remarkably dilated. From 
the appearance I should say he had been long in the practice of having buggery 
committed upon him. I did not find any appearance of semen or the like although I 
looked for it."

At this point O'Loghlen objected that the Crown had not proved that penetration took 
place, and the Crown agreed to amend the charge to one of attempted buggery. 
O'Loghlen pressed his luck by asserting that, since Nicholas had consented, his client 
could not be guilty of the offence, particularly since he was too drunk to know what 
he was doing. The judge apparently accepted this latter line of argument, and told the 
jury that "if they believed Redden was helplessly drunk, they might find him 
innocent." The jury took the hint and took only half an hour to acquit Redden 
(described by Constable Breen as "a hard-working young fellow") and convict 
Nicholas. The judge sentenced Nicholas to five years imprisonment with hard labour, 
plus three floggings of ten lashes each, but deferred execution of these punishments 
pending the resolution of the point about consent, which he reserved for the 
consideration of the full court.

Judges Higinbotham, Williams and Holroyd debated this matter in Melbourne in 
August 1885, by which time Nicholas had already been in prison for 18 months. 
Nicholas was again unrepresented. After hearing from Mr J T T Smith, for the 
Crown, the Court held that "One of the accused persons, Redden, feloniously made 
an assault on the other accused person, Nicholas, and. . . Nicholas consented to the 
act of Redden. . . Generally speaking, an assault means in law a blow . . . against the 
wish or consent of the person against whom it is directed. But from the terms of The 
Criminal Law and Practice Statute 1864. . . it appears that in cases of sexual or 
unnatural offences, the mere physical contact with the person alleged to be assaulted, 
may be designated an assault without reference to the consent. . . of the person. . . 
We think the conviction should be affirmed."

Nicholas was transferred from Geelong Gaol to Pentridge on 20 September 1884, 
where he stayed until 3 July 1888, when he was released by remittance. His first two 
floggings were also remitted, but he received his third flogging on 14 November 
1884. 

2. Unexpected conclusions

It would be satisfying to conclude that the unfortunate Richard Nicholas was typical 
of the many gay men in colonial Victoria who were cruelly punished by police and 
courts eagerly enforcing the vicious, homophobic laws of the period. But this was not 
the case. I selected 14 Supreme Court cases of buggery, attempted buggery and 
indecent assault on a male person from at random from the Criminal Trial Brief 
Register at the Public Records Office, Laverton. Of the 14 cases, R v Redden and 
Nicholas is the only case involving sex between two consenting men which resulted 
in a conviction, and one of only two which came to court at all.

According to the "Statistical Register of the Colony of Victoria: Law, Crime Etc," 
between 1871 and 1900 356 men were arrested in Victoria for "unnatural offences," a 
category which included bestiality as well as buggery, attempted buggery and 
indecent assault on a male. The rate of arrests (averaging one a month) for these 
offences declined unevenly but clearly over this period, falling from 137 in the 1870s 
to 97 in the 1890s. Between 1881 and 1900 219 men were arrested, of whom 156 
(71%) were sent for trial and 101 (46%) were convicted. The proportion of those 
arrested who were convicted rose noticeably over the period.

These cases have forced me to some unexpected conclusions. First, with the possible 
exception of R v Whelan (in which the facts are somewhat obscure), all these cases 
involved acts which would still be offences today: rape (O'Connor), penetration or 
attempted penetration of a minor (Buckland, Howles, William McCarthy, Tilburn), 
other sexual advances to minors (Garrick, Charles McCarthy, McFadden, Müller), 
assault (Ashton, Ruperth, Shore) or sex in a public place (Redden and Nicholas). 

Second, with the single exception of Nicholas, the verdicts and sentences handed 
down in these cases do not appear to have been unduly harsh even by today's 
standards. O'Connor would not now be sentenced to death, nor Buckland to flogging, 
and Ashton seems to have been insane. On the other hand, Howles would not now be 
acquitted on grounds of consent and might be convicted of rape, and Tilburn would 
be lucky to be acquitted given current views about sexual offences involving minors. 
O'Connor would still get a substantial prison term today, and Buckland, Tilburn and 
William McCarthy might also have been imprisoned. Whatever the facts of Whelan's 
case, he was acquitted.

The only substantial injustice to modern eyes among these cases is the case of 
Nicholas. He was an adult, engaging in consensual sex with another adult. Today, 
depending on whether a court held the outhouse in which he and Redden were 
discovered to be a public place or not, he would at most be fined or put on a bond for 
offensive behaviour. Although, in theory, the offence would have been just as serious 
had it been committed in private, Nicholas was only charged because it took place in 
public.

Third, again with the possible exception of Whelan, none of these cases involved sex 
between consenting adults in private. It should be remembered in this context that 
until 1919 sex between consenting male adults in private was legal in Victoria unless 
anal penetration took place (which was difficult to prove in the absence of a witness). 
Redden and Nicholas is the only case in which two men were charged for having sex 
with each other, but this was not in private. In all the other cases, except Whelan, 
there was an identifiable "victim": a minor or a non-consenting adult (although 
Shore's "victim" was held to have consented).

It must be concluded, on the evidence of these 14 cases, that the Victorian sodomy 
law, at least in the 1880s and '90s, was not used in a way that was particularly 
oppressive of those homosexual men who confined their sexual activities to 
consenting adults and who had the luxury of a private place to have sex in. Even for 
those who stepped outside these boundaries, the law in practice could be surprisingly 
lenient, as with Howles and Tilburn. Really harsh penalties were confined to those 
guilty of anal penetration with aggravating circumstances (the use of force, 
committed in public or with a minor). But even O'Connor, who raped a young man 
over whom he had authority, was not hanged.

It is of course dangerous to draw too many conclusions from such a narrow research 
base. Possibly there were cases involving the prosecution of consenting adults for sex 
in private: all I can say is that I did not find any. It should be borne in mind that the 
most common circumstances in which homosexual men get arrested, looking for 
sexual partners at beats, would not appear in the case records at the Public Records 
Office. Men arrested in these circumstances would be charged with loitering, 
offensive behaviour or similar misdemeanours, and would appear in magistrates' 
courts. No doubt a search of the Melbourne Magistrates' Court records for the period 
would reveal many such cases.

3. A transitional society

What explanation can I offer for this rather unexpected finding? As I'm sure 
everyone here knows, there has been a long debate among gay activists and 
historians of homosexuality about the emergence of homosexual identity. Over the 
past 20 years belief in an uncomplicated, unchanging gay identity stretching back to 
Alexander the Great has been challenged, and largely abandoned in favour of the 
view that "the homosexual" as a self-identifying category only came into existence in 
the nineteenth century: before that there were only forbidden acts.

The Victorian cases discussed here provide no evidence of the existence of a 
community of men sharing a common homosexual experience and identity in late 
nineteenth-century Victoria. Of our defendants, Nicholas, O'Connor and possibly 
Whelan were "practising homosexuals." Judge Williams said of O'Connor, "The 
prisoner was much addicted to this crime and used his position on board ship. . . to 
gratify his propensity." But one would hesitate to call them "gay." One might 
conclude from this that no such community existed, but this is unlikely. The 
existence of a homosexual community in London has been traced back to the 
seventeenth century, and Melbourne in 1890 was at least as big as London in 1690. 
Sydney's homosexual community has been traced back to the late nineteenth century, 
and Melbourne was a bigger city than Sydney until 1900.

A more likely explanation is that the law was selective in deciding which forms of 
homosexual behaviour to punish and which to ignore. As noted, men using force or 
interfering with minors were likely to be severely dealt with, though even these had 
an even chance of escaping conviction. Men confining their activities to sex with 
consenting adults in private seem to have been ignored most of the time, unless there 
was a complaint from a third party (as in R v Whelan, although he was acquitted).

My interpretation of these case records, particularly when seen in the light of the 
crime statistics I referred to earlier, is that they marked a period of transition between 
one kind of society and another, and between different dominant forms of 
homosexual activity. Early nineteenth-century Australian society was characterised 
by a large, mobile rural population of single men, many with convict backgrounds, 
working in the mining and pastoral industries. There was a high incidence of semi-
institutionalised "situational" homosexuality in these settings, particularly in 
Tasmania, whence many of Victoria's early settlers came.

By the later nineteenth century, the convict generation was dying off and the 
proportion of the population employed in the mining and pastoral industries was 
declining, particularly in Victoria, which was urbanising and industrialising behind 
the protective tariff. It is noticeable that the great gender disparity which marked 
colonial Australia had almost disappeared in Victoria by 1900. There was a large 
emigration of single men from Victoria after the 1891 depression, and another at the 
time of the Kalgoorlie and South African goldrushes. All these factors would have 
led to a decline of the older pattern of situational homosexuality, which, as cases like 
R v Howles, R v McFadden and R v Müller show, was policed when it affected 
minors or caused public scandal.

The new pattern of urban homosexual behaviour was characterised by a community 
of men sharing a homosexual identity and the development of a network of meeting 
places for those sharing this identity. There was a recognisable "gay bar" at the 
Australia Hotel from the time of World War I, and there were undoubtedly other 
venues earlier than that. Finding privacy for sexual purposes was easier in Melbourne 
than in country areas, and the greater anonymity of urban life allowed the creation of 
a precarious "social space" for gay men. Phillip Whelan, the barman who took a 
sailor to his room (both stereotypical "gay" occupations), is the only possible 
representative of this new pattern of homosexual behaviour among my case records. 
A search of later records would probably yield more.

Appendix 1: Summary of 13 cases of buggery, attempted buggery and indecent 
assualt, Victorian Supreme Court 1868-93

* R v William Ashton (1890)
Ashton, a miner, attacked a 78-year-old man in open bushland near Ballarat in broad 
daylight. Charged with attempted buggery. Witnesses said Ashton was insane. Guilty 
of indecent assault: 12 months. 

* R v Frederick Buckland (1880)
Buckland offered money to a 14-year-old boy at Victoria Market, took him to his 
hotel and fucked him over a chair. He had eight prior convictions for larceny under 
another name. Guilty of buggery: five years and flogging. 

* R v Thomas Garrick (1885)
Garrick charged with indecent assault on two 12-year-old boys in daylight on the 
Yarra Bank. Details and verdict not recorded. 

* R v William Howles (1868)
A 51-year-old hotel cook was caught digitally penetrating an 11-year-old boy. 
Charged with and convicted of indecent assault, Howles was acquitted on appeal on 
the grounds that the boy consented (although he said in his deposition, "I did not go 
willing with the prisoner. I did not call anyone to help me not knowing anyone to 
help me.") 

Howles's acquittal seems extraordinary even by the standards of the time. The 
traditional female age of consent was 12. Section 59 of the 1864 act, dealing with 
indecent assault, says nothing about consent, presumably because it was assumed 
that, as with sodomy, no question of consent could arise. Howles was lucky he was 
caught before he tried to insert more than his finger: had he been caught fucking his 
11-year-old, he could have been hanged.

* R v Charles McCarthy (1880) 
McCarthy offered an 11-year-old boy sixpence to take down his trousers under a 
railway bridge in Geelong. The boy ran to the police. Charged with indecent assault. 
Not guilty. 

* R v William McCarthy (1889) 
McCarthy, a carter, gave two boys aged 11 and 7 a lift in his cart on a country road 
near Melbourne. He made them suck him under threat of violence after first 
promising them money. Charged with indecent assault. Guilty, 18 months. 

* R v James McFadden (1880)
McFadden, a station manager at Beechworth, employed a 13-year-old boy as a cook 
and slept with him in a tent. One night he clasped the boy in his arms and asked "for 
a bit." The boy told his uncle. McFadden charged with assault with intent to commit 
sodomy. Not guilty. 

* R v Charles Müller (1884) 
Müller, an unemployed Swiss migrant, fondled a 5-year-old boy in daylight on the 
banks of the Broken River, while being watched by police. Charged with indecent 
assault, confessed. Sentence not recorded. 

* R v William O'Connor (1870)
A ship's mate raped an 18-year-old seaman at knifepoint in the fo'c'sle of a ship at 
sea. Charged with and convicted of buggery with violence, sentenced to death. The 
sentence was commuted despite the judge's comment that "I see no mitigating 
circumstances in the case." The Argus (21 February 1870) noted that "His Honour 
intimated that the capital sentence would not be carried into execution." 

* R v Herman Ruperth (1884)
Ruperth, a German seaman, was accused of fucking a fellow sailor at Port Melbourne 
while the other was dead drunk. Charged with buggery with violence. Doctor said 
there was no sign of penetration or violence. Acquitted. 

* R v George Shore (1893) 
Shore, a foreman at a Port Melbourne dairy, several times molested a fellow worker, 
William Williams, while Williams was asleep. After several warnings, Williams 
went to the police, who arranged for a witness to catch Shore in the act. Shore was 
convicted of indecent assault but acquitted on appeal on grounds of consent when the 
witness testified that Williams had an erection. 

The full court, in acquitting Shore, cited an English case of 1872, R v Wollaston, in 
which a man was acquitted of indecent assault on two 14-year-olds when it was clear 
that "the youths were willing and assenting parties to what was done." They did not 
cite R v Howles. In 1878 the NSW Supreme Court, in R v McDonald held that 
consent did not arise in cases of assault with intent to commit sodomy. This did not 
close the loophole relating to indecent assault, which remained unaddressed in 
Victoria until 1919.

* R v James Tilburn (1890)
Tilburn tried to fuck a 9-year-old boy in a shared room in a Melbourne boarding 
house. No force used. The boy told a waiter, police were called. Charged with 
attempted buggery. Not guilty. 

* R v Phillip Whelan (1880)
Whelan, a barman at a city hotel, took a sailor to his room. A maid testified she heard 
noises at night and that the second bed in Whelan's room was undisturbed, although 
there were no "stains" in Whelan's bed. It is not clear how the case came to police 
attention. Charged with sodomy. After the first jury could not reach a verdict, a 
second jury acquitted him. 

Of these cases, only R v Howles, R v O'Connor and R v Shore were reported in the 
law reports. These, plus R v Redden and Nicholas, are the only Victorian cases for 
the period before 1900 relating to homosexual acts which were reported. The other 
cases referred to here were found in the Criminal Trial Brief Register at the Public 
Records Office. I selected cases from the early 1880s and early 1890s at random 
from the case list in John Austin's otherwise very unhelpful MA thesis, Ecce Homo.

Appendix 2. "The abominable crime of buggery" in Victorian law

The Port Phillip District (later Victoria) was part of New South Wales until 1850, 
and the NSW Criminal Law (Offences Against the Person) Act of 1828 applied. 
Section 15 of this act said bluntly that:

"Every person convicted of the abominable crime of buggery committed either with 
mankind or with any animal shall suffer death as a felon."

This act closely followed the wording of the English law, which dated back to a 
statute of Henry VIII, though not fixed in English law until 1562. The law was far 
from a dead letter: in Britain hangings under this act were common in the eighteenth 
century and continued until 1835.

The legal scholar Sir William Blackstone in his Commentaries on the Laws of 
England of 1769, declined to "act so disagreeable part, to my readers as well as to 
myself, as to dwell any longer upon a subject, the very mention of which is a 
disgrace to human nature," but did bring himself to impart the useful information that 
"the rule of law herein is, that if both are arrived at years of discretion, agentes et 
consentientes pari poena plectantur [both he who initiates and he who consents shall 
suffer the same punishment]."

In Britain in 1861 the Crimes Against the Person Act abolished the death penalty for 
buggery, substituting ten years imprisonment. In 1864 Victoria, now a self-governing 
colony, followed the British lead and passed the Criminal Law and Practice Act, 
section 58 of which provided the death penalty for persons convicted of the 
abominable crime either with a person under the age of 14 or "with violence and 
without consent." If these circumstances did not apply, convicted persons could 
receive up to 15 years imprisonment.

Section 59 of the Act created a new offence, covering sexual acts between men other 
than anal intercourse. It provided a maximum sentence of ten years imprisonment for 
an attempt to commit buggery, and for "any indecent assault upon a male person." 
These sections were incorporated verbatim into the Victorian Crimes Act of 1890 
and 1915, and were thus the law under which all cases involving male homosexuality 
in the later nineteenth century were judged.

In Britain, however, the law had been changed again. In August 1885 the parliament 
passed the Criminal Law Amendment Act, section 11 of which stated that:

"Any male person who, in public or private, commits, or is a party to the commission 
of, or procures or attempts to procure, the commission by any male person of, any act 
of gross indecency with another male person, shall be guilty of a misdemeanour."

This was the so-called Labouchère amendment, tacked onto a bill dealing with 
adolescent female prostitution by the eccentric backbencher Henry Labouchère, and 
passed without debate. The effect of the words "in public or private" was 
immediately seen as "an invitation to extortion," as was demonstrated when they 
were used in 1895 to convict Oscar Wilde on the evidence of male prostitutes acting 
as police informers.

The Labouchère amendment has been seen as evidence of a greater awareness among 
lawmakers of the homosexual subculture in London, and a desire to extend the ability 
of the law to police it. This assumes that Labouchère had a coherent motive for 
moving his amendment, which may be doubted. The Wilde case notwithstanding, the 
newly-strengthened law did not much change the pattern of male homosexual life in 
Britain, and was enforced only sporadically until its abolition in 1967.

In Victoria, no move was made to adopt the Labouchère formulation until 1919, 34 
years later. In that year the Crimes (Indecent Acts) Act, closely following 
Labouchère, specified that "any male person who in public or in private commits or 
is a party to the commission of. . . any act of gross indecency with another male 
person" could be imprisoned for up to three years. This Act also made it clear that 
consent could not be a defence in cases of indecent assault involving males under 16 
years of age. 

The long delay in copying Labouchère into Victorian law is puzzling. In acquitting 
George Shaw of indecent assault in 1893, Judge Williams said, "It simply comes to 
this, that this class of offence - or rather disgusting performance, for it is not an 
offence - has not been hit by the law, and it would be well if the Legislature of this 
country would follow the example of the English Legislature and frame a section 
similar to [Labouchère] in order to meet cases of this kind." But the Legislature did 
not heed His Honour's call, presumably because they did not feel any pressure to 
crack down on homosexual acts between consenting males.

When the Victorian Parliament did act, the government leader in the Legislative 
Council described the bill as "a small measure which has been introduced to remedy 
a deficiency in the Crimes Act." It concerned, he said, "a perverted sexual desire on 
the part of certain men who really may be judged insane in regard to this particular 
offence." There were, he said, "several of this kind of men living in Melbourne, but 
the police have no power at the present time to institute proceedings against them." 
Later, the minister said the bill had been introduced on the advice of the police. 

It is gratifying to note that the Labor opposition leader, George Prendergast, opposed 
the bill: "It does not seem to me that there is much justification for this measure." 
Victorian law was thus belatedly brought into line with British law, and remained 
(apart from the abolition of the death penalty by s.2 (1) (e) of the Crimes Act 
amendment act of 1949) unchanged until the Hamer Government's repeal of these 
laws in the Crimes (Sexual Offences) Act 1980.