Title : Victimless Crimes -- Decriminalisation of Homosexual : Sexual Activity Author : Inge Lauw (ilauw@cleo.murdoch.edu.au) Organisation : School of Law, Murdoch University Language : English Keywords : Homosexuality, discrimination, United Nations, : decriminalisation of sodomy Abstract : Explores the arguments for and against : decriminalisation of sexual acts between consenting : adult males. Also discusses the recent statement by : the United Nations Human Rights Committee declaring : Tasmania's anti-sodomy laws to be unlawful. 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URL gopher://infolib.murdoch.edu.au:70/00/.ftp/pub/subj/law/jnl/elaw/current/ lauw3.txt ftp://infolib.murdoch.edu.au/pub/subj/law/jnl/elaw/current/lauw3.txt ----------------------------------------------------------------------- VICTIMLESS CRIMES -- DECRIMINALISATION OF HOMOSEXUAL SEXUAL ACTIVITY by Inge Lauw Sexual acts between consenting adult males have long been the target of considerable social and legal condemnation. Acceptance of these acts has only been recently forthcoming as society gradually becomes more permissive. This change is reflected in the increasing number of jurisdictions which have decriminalised such acts. However, many jurisdictions have retained their statutory prohibitions on homosexual sex despite much criticism from groups and individuals who believe that the laws are obsolete and should be removed. The most recent example of this is that of Tasmania. The Tasmanian anti-sodomy laws have been declared unlawful by the United Nations Human Rights Committee as violating certain rights guaranteed by the International Covenant on Civil and Political Rights but the State Government is nevertheless refusing to repeal the offending provisions from its Criminal Code.[1] This article proposes firstly to examine some of the general issues and arguments relevant to the issue of decriminalisation of homosexual sexual activity and, in Part II, discuss the United Nations ruling on Tasmania's anti-sodomy laws. PART I -- DECRIMINALISATION OF SODOMY -- GENERAL ISSUES A number of propositions have been advanced in an attempt to legitimise the retention of these laws but these arguments are unpersuasive and many are without rational foundation. On the other hand, there are compelling reasons to repeal the laws, many of which centre on the adequate provision of health services to the group most affected by AIDS and other sexually transmissible diseases. The arguments opposing and supporting decriminalisation centre around three main areas: - Its effect on the family and society - Concern that there will be a possible increase in the supposedly 'negative' aspects of homosexuality such as STDs and molestation of children - Infrequent enforcement of these laws Some of these points were also raised by the Tasmanian Government in its defence of its laws, specifically, the public health and infrequent enforcement issues 1. _The Effect of Decriminalisation on Family and the Society_ Opponents of reform argue that decriminalisation will result in an increase in the frequency of homosexuality and a corresponding decrease in the number of marriages entered into and that this, in turn, will undermine the whole institution of the family.[2] This is clearly absurd. Research conducted in jurisdictions which have decriminalised consensual homosexual conduct does not support conclusions that decriminalisation will lead to an increase in homosexuality.[3] There is substantial agreement among scientific researchers that sexual orientation is due to genetic factors, and is determined by age five or six.[4] Therefore, it is unlikely that an increase in the incidence of homosexuality will occur as a consequence of decriminalisation. Nor will reform result in a significant drop in marriage rates[5] and levels of procreation. Homosexuals can and do form families that, apart from the gender of the partners, do not differ substantially from heterosexual families. Many homosexuals wish to have children and some in fact do so, through mechanisms such as adoption and artificial insemination, although they may find these more difficult to obtain than heterosexuals, as they necessarily involve application as a single person. Rather, decriminalisation may promote the institution of family. The knowledge that society and the law condemn their personal relationships can be very difficult for young gay men who are coming to terms with their sexuality. One consequence of the anti-sodomy laws is that many feel compelled to conceal this aspect of their lives from their family and friends,[6] sometimes marrying for appearance's sake. However, such marriages are frequently unstable and often fail, resulting in detriment for the parties involved, including any children of the marriage. Decriminalisation may be a step towards removing some of the stigma associated with homosexuality and may have positive repercussions on relationships between homosexuals and their families. It may substantially promote acceptance of homosexuals by their families, which will do much to strengthen family ties. Empirical research also indicates that decriminalisation results in more self-acceptance and psychological and emotional security among homosexual men.[7] A common observation in many instances is that homosexuals living in jurisdictions which criminalised homosexuality tended to have lower self-esteem and higher levels of psychological maladjustment, depression and suicide than those living in jurisdictions in which homosexual acts were not regarded as criminal offences.[8] Criminalisation reinforces negative societal attitudes regarding homosexuality. This, in turn, results in greater discrimination and thus impacts adversely on the self-esteem of many homosexuals, which often leads to deception and friction within families. 2. _Increases in the Incidence of Homosexuality and its Perceived Negative Aspects_ Those opposing decriminalisation assert that it will lead to an increase in homosexual activity, both public and private, as well as more child molestation, public solicitation and sexually transmissible diseases. However, there is no statistical evidence to support any of these conclusions. Decriminalisation has not resulted in an increase in child molestation in those jurisdictions which have implemented reform.[9] In addition, research from Australia and the United States indicates that 90% of child molesters are in fact heterosexual.[10] There is nothing to suggest that homosexual men are more likely to engage in sexual relations with minors than are heterosexuals. The claim that decriminalisation will result in an increase in homosexuality is unsubstantiated. It is widely accepted by international researchers that homosexuality is genetically determined.[11] If this is in fact correct, decriminalisation will do nothing to alter the incidence of homosexuality. Concerns regarding possible increases in public solicitation and sexually transmissible diseases (STDs) are similarly unfounded. In fact, the South Australian study found that decriminalisation in fact decreased the incidence of public solicitation and STDs.[12] Admittedly, this research was conducted prior to the advent of AIDS and therefore does not take account of HIV infection.[13] However, there is a widespread view that the criminal status of homosexual acts hinders, rather than assists, the fight against AIDS. This proposition is based on a number of reasons: Firstly, in its report, the National HIV/AIDS Strategy[14] suggested that -- "Laws regulating and/or penalising homosexual activity ... impede public health programs promoting safer sex to prevent HIV transmission by driving underground many people at risk of infection." The thrust of this argument is that the criminal status of homosexual acts deters gay men from going to doctors, hospitals and other health services for testing, advice and treatment, as they believe they may be exposing themselves to the risk of prosecution if they do so. As the majority of people who are HIV positive or have AIDS are homosexual or bisexual men,[15] this reluctance to come forward as a result of the criminal sanctions constitute a substantial impediment to health education and health service providers in their work to prevent the spread of HIV/AIDS. Research conducted by the Queensland AIDS Council before decriminalisation in the State indicates that a large number of gay men do not present themselves for testing and/or treatment until the onset of visible manifestations of HIV infection.[16] Of course, by the time that these AIDS-Related Complexes appear, the virus is too far advanced to treat with any effectiveness. At this stage it is also probable that these men may have transmitted the virus to their sexual partners, especially if they are unaware of how the virus is transmitted and associated preventive measures. Similar observations have been noted in Western Australia (prior to decriminalisation) and Tasmania.[17] In Western Australia men who presented themselves for testing often furnished false names or only a first name.[18] There was considerable concern regarding the confidentiality of patient records and the possibility that police would make use of them to initiate or bolster prosecutions under the anti-sodomy laws. The situation in Tasmania is even less favourable, as highly placed medical practitioners and politicians have publicly denounced homosexuality.[19] As a result of this, many homosexual men in Tasmania simply choose not to be tested at all, or else are tested interstate.[20] Moreover, there are problems from the side of the health professionals. Many are reluctant to provide services to gay men, and to advise them on matters such as condom use and safe-sex guidelines because of a concern that they may be charged with aiding the commission of a criminal offence.[21] Many are uncertain as to the extent of the advice and treatment they may provide without contravening the law. They are also unsure as to whether or not their actions do in fact expose them to criminal charges as parties to the offence. Whether or not these fears are founded, they do result in a great deal of uncertainty and concern and do nothing to help health programmes aimed at the prevention of HIV/AIDS. The key to the prevention of HIV/AIDS is not legislation criminalising homosexuality, but education of the groups which are likely to be the most affected. Effective strategies for AIDS prevention and minimal transmission can only occur if there is a free flow of information between health providers and their target groups. As long as the anti-sodomy laws remain on the books, this will not be possible. They do not serve any useful purpose in the prevention of STDsmost gay men will continue to have sexual relations. Rather, legislation only hampers access to health education and servicesthe success of educational and prevention programmes in jurisdictions which have decriminalised homosexual sex are testimony to this.[22] 3. _Infrequent Enforcement of the Laws_ Another argument against the repeal of these laws is that there is no need to, since they are so rarely enforced. However, it is submitted that this is not a valid justification for their retention. Admittedly, prosecutions are infrequent but they do occur, and as long as the laws remain in existence, there will always be a possibility of prosecution. At times, this possibility becomes reality -- in Queensland homosexual men were charged for having sex as recently as 1988, a scant two years before decriminalisation. Prosecutions are also arbitrary, with no discernible rationale or pattern behind them. There is no argument with arrests in relation to legislation against public sexual acts -- indeed, there are numerous laws prohibiting such conduct between heterosexuals. However, anti-sodomy laws generally make no distinction between public and private acts, which exposes gay men to the possibility of arrest for consensual sexual acts in their own homes. This is not only unjust, but it also lacks any rational basis. _Private Acts_ Although it is true that most police attention is drawn towards public displays of homosexuality, and prosecutions for private homosexual acts are fairly rare, they nevertheless do occur. These laws are also harmful in that they are a waste of resources, and often encourage entrapment by police. It is very difficult to regulate sexual acts in private, and while the majority of police officers do not attempt to, there are some who do. Police resources are already limitedwhy waste them on 'victimless' crimes such as consensual homosexual sex when there are so many serious crimes such as murder, rape and robbery which need attention? In relation to the arrests which do occur, one observation is that "...defendants, faced with public exposure and more expense (which a trial will inevitably attract) have preferred to plead guilty after committal."[23] While it is true that the criminal penalties that are actually imposed in these cases are light,[24] such as good behaviour bonds[25] and relatively small fines,[26] they may nevertheless have "devastating personal, social and economic effects for those arrested."[27] It is probably very difficult to conceal a criminal charge from family members and possibly friends, and the offender will no doubt have a criminal record, which may hinder future employment. Consensual homosexual sex in private should not be the law's business. Retention of legislation criminalising it is merely an excuse for the persecution of a minority group which is feared and misunderstood by some members of society. _Public Acts_ Ideally, anti-sodomy laws should be completely repealed, and homosexuals and heterosexuals alike should be covered by existing laws on public indecency. However, even if this occurs, there will inevitably be problems of selective enforcement and differential treatment of homosexuals and heterosexuals under the public indecency provisions. For example, if police encounter a man and a woman engaging in sexual intercourse in a car parked in a secluded area, it is unlikely that they would be charged. They would probably be cautioned but the matter is not likely to be carried further. However, if the police were to come upon two men in the same circumstances, there would no doubt be arrests and the incident would attract considerable attention. Police are often unsympathetic in their treatment of homosexuals, despite claims to the contrary. Some of this may be unconscious, but at other times police act intentionally, actively seeking to make arrests. Many of the prosecutions for homosexual acts occur as a result of entrapment. This involves police officers frequenting known gay 'beats' or 'cruising spots' such as bars and public toilet and shower complexes and encouraging sexual advances and invitations from the gay men who are present. Alternatively, police officers may conceal themselves in these places, making use of devices such as peep holes and two-way mirrors to observe and arrest gay men engaging in oral or anal sex. In these situations, arrests may occur despite the fact that many of those who frequent cruising areas take great care to be unobtrusive.[28] It is not unheard of for a police officer to arrest two men for engaging in homosexual sex in a closed toilet cubicle, out of sight of anyone who may enter the lavatory complex. The offenders may only be visible to the arresting officer by way of a peephole cut into the wall of an adjoining stall, or in the ceiling of the complex.[29] Techniques such as these resulted in a number of arrests in Queensland in 1988.[30] Hopefully, decriminalisation will see the end of these practices, and more police attention will be turned to other crimes. However, there is no guarantee that this will happen even if decriminalisation takes place. If decriminalisation occurs, homosexuals will be governed by the same provisions outlawing public indecency as heterosexuals and therefore should be treated in the same way by the police. However, it is nevertheless possible that entrapment will still occur, as there will inevitably be a small number of homophobic police officers who will persist in these undesirable practices, although the majority will probably welcome the change, as it will enable more time and resources to be spent on other matters. The improbability of change is heightened by the fact that in Australia, unlike in the United States, entrapment is not a defence to a criminal charge, although the courts have condemned it.[31] However, judges in Australia are not required to accept evidence which has been unfairly or improperly obtained[32] and this principle has been applied to cases in which entrapment was an issue.[33] This discussion should not be interpreted as an argument in favour of giving homosexuals license to have sex in public places. Clearly this is not acceptable behaviour either by heterosexuals or heterosexuals. Rather, the concern is the waste of public money and limited resources on the manner of enforcement, especially as entrapment can so easily result in an abuse of police power. The practice only serves to generate more crime.[34] PART II -- THE UNITED NATIONS RULING -- TASMANIA'S SODOMY LAWS Tasmania is the only remaining Australian jurisdiction which criminalises consensual homosexual sex. The State's steadfast refusal to repeal its anti-gay laws[35] has attracted considerable national and international criticism. This culminated in a declaration by the United Nations Human Rights Committee (UNHRC) on 13 April 1994 that the provisions are unlawful as discriminatory criminal legislation which breaches certain articles of the International Covenant on Civil and Political Rights (ICCPR). The decision puts considerable pressure on the Federal Government to live up to its international expectations by utilising its external affairs power in s. 51(xxix) of the Commonwealth Constitution to repeal the Tasmanian laws despite opposition from the Tasmanian Government. If this occurs, the Tasmanian Government has said that it will take the challenge to the High Court of Australia.[36] It does appear as if the Federal Government will be forced to do this, as negotiations between Federal Attorney-General Michael Lavarch and Tasmanian Premier Ray Groom have resulted in a stalemate. Premier Groom has supported absolute retention of the laws, rejecting alternatives such as the removal of private homosexual sex as an offence, and is of the opinion that the final decision on the matter should rest solely with the Tasmanian government, with no intervention from the Federal Government or the UNHRC:[37] "In our view this is a matter totally for the people of Tasmania and the Government of Tasmania ... It has nothing at all to do with the United Nations or the Commonwealth. We will not allow any interference from outside the state. That's our position." More recent developments in relation to the ruling will be discussed at the conclusion of this article. The ruling came about as a result of a communication under the First Optional Protocol of the ICCPR[38] by a Tasmanian gay activist, Nick Toonen. Mr Toonen alleged that the Tasmanian anti-sodomy laws violate Article 17 of the ICCPR,[39] Article 17 in conjunction with Articles 2.1[40] and 26[41] and Article 26 alone. The UNHRC's declaration was made on two bases: 1. The laws violated the right to privacy in Article 17 and their continued existence constitute interference with Mr Toonen's privacy, notwithstanding the fact that they have not been enforced for several years. 2. The laws also infringed Article 26 as being within the ambit of "sex discrimination" The finding on the right to privacy ground has generally been accepted as well-argued and commendable. However, the issue of discrimination on the basis of sexual orientation as constituting sex discrimination has sparked a heated debate as to whether or not it is a valid classification. The primary reason for the discord is that the arguments both parties to the dispute covered in substantial detail the issue of whether or not discrimination on the ground of sexual orientation constituted discrimination on the basis of 'other status' as contained in Articles 2.1 and 26 of the ICCPR.[42] There was very little discussion by either party on the subject of whether or not it constituted sex discrimination. However, the UNHRC based this part of its finding completely on a determination that 'sex' in Articles 2.1 and 26 includes sexual orientation discrimination. It is puzzling to see why the Committee made its decision on this basis when the parties based their primary arguments on another point. Also, many find it difficult to accept the determination, as sexual orientation appears to fit much more readily within the classification of 'other status' than it does within sex discrimination. Arguably, the classification is valid, as s. 123 of the Criminal Code does not permit men to have sexual relations with other men, while allowing women to do so. If examined in this way, it may be legitimately said that sex discrimination includes sexual orientation discrimination, as the distinction between what is and is not permissible sexual behaviour is based solely on gender considerations. However, the analysis involves a more abstract approach to the matter, which may be difficult to grasp at first instance. In s. 122, sub-ss. 122(a) and (c) technically apply to both homosexuals and heterosexuals. Although "carnal knowledge ... against the order of nature" is not defined, it doubtless includes anal intercourse and most probably oral sex, both of which are more common among homosexuals than heterosexuals. Although many heterosexual couples engage in oral and anal intercourse, it is very unlikely that they would be arrested and charged for doing so. In the United States gender-neutral sodomy statutes are generally enforced only against homosexuals; they have only been used against heterosexuals in cases of non-consensual sodomy -- ie. rape. However, the wording of the Tasmanian provisions precludes them from being used for this purpose, as it specifically states that the crime is in relation to consensual acts. Thus, the law is clearly discriminatory, as enforcement procedures are directed much more towards homosexual men than to heterosexuals. If this decision had been made by a United States court it would have been more logical. United States constitutional law is such that a successful allegation of gender discrimination imposes a substantial burden of justification on the alleged offender, whereas an allegation of discrimination on the basis of sexual orientation does not attract this high degree of scrutiny. Thus, any argument or determination that sexual orientation discrimination comes within the ambit of sex discrimination would be more logical in these circumstances, as it is probably the only way to succeed in an action of this kind.[43] However, in the international sphere, the above limitation does not exist, as 'other status' clearly encompasses sexual orientation.[44] Nor does the UNHRC explain this point in any detail, although one member of the Committee, Mr Bertil Wennergren, offers his own explanation:[45] "In paragraph 8.7 the Committee found that in its view the reference to the term "sex" in Article 2, para 1 and Article 26 is to be taken as including sexual orientation. I concur with this view, as the common denominator for the grounds "race, colour and sex" are biological and genetic factors. This being so, the criminalisation of certain behaviour operating under ... the Tasmanian Criminal Code must be considered incompatible with Article 26 of the Covenant." Although it is an acceptable analysis of the issue, the fact that the UNHRC did not offer any reasoning in support of its decision may lessen its force and jeopardise the movement to decriminalise homosexual acts in other jurisdictions, although this may not be the case, as the UNHRC does present a well-reasoned decision on the privacy issue. Whether or not this will have such an effect remains to be seen, but it is a definite weakness of the ruling. _Recent Developments_ It is interesting to note some developments that have occurred since the ruling: On 21 April, 8 days after the decision, two men were apprehended in a toilet block in Tasmania's St David's Park by police on bicycle patrol. As yet, no decision has been made as to whether or not they will be charged in respect of the incident. However, any charges that are laid are expected to be made under the anti-sodomy laws, in defiance of the UN ruling.[46] In response to, and in direct challenge of the laws, on 11 May two gay men turned themselves in to the Tasmanian police, stating that they had broken the law by having sexual relations with their partners in the past week.[47] They submitted detailed statements describing the nature of their offences. The police are still investigating this matter and in most recent developments, the two men -- along with Nick Toonen, who was not one of the original 'confessors' -- have been questioned by the police. No decision as to whether or not they will be charged has been made.[48] An interesting observation is that this action was originally intended to be a mass protest but the number of participants gradually diminished as a result of fear, prejudice and the possibility of dismissal from employment.[49] The Commonwealth Government has recently included this issue among the matters which are to be discussed at the next session of Federal Parliament. It proposes the enactment of a Bill to render the challenged sections of the Tasmanian Criminal Code inoperative[50]. It should be noted that at this stage the Federal Government is not proposing the repeal of the laws, as it still appears hopeful for an amicable solution -- or compromise -- with the Tasmanian Government.[51.] However, the prospect of a negotiated solution appears extremely unlikely, and it looks as if the matter is destined for a challenge in the High Court of Australia. Conclusion Thus, it can be seen that there are compelling reasons for decriminalisation, and great strides are being made towards this end. However, while decriminalisation will do much to change the legal status of homosexual men and will have positive consequences for health programmes and privacy rights, it will not result in immediate social change. It is unlikely that people will change their existing prejudices simply as a consequence of a change in the law. Many homosexuals in jurisdictions in which reforms have already been implemented still experience discrimination and resultant psychological trauma. There will always be a social minority which will harbour intensely homophobic feelings and decriminalisation is unlikely to alter this, although many homosexuals in "non-criminal" jurisdictions have, on the whole, felt that they have become a more accepted part of society as a result of reform.[52] Along with increased access to health education and services, perhaps this increase in societal and self- acceptance is the most significant consequence of decriminalisation. A large weight that is currently imposed by fear of discovery and prosecution will be removed from many lives. APPENDIX A - SECTIONS 122 AND 123 OF THE *CRIMINAL CODE ACT 1924 (TAS)* 122 -- Any person who -- (a) has carnal knowledge of any person against the order of nature; (b) has carnal knowledge of an animal; or (c) consents to a male person having carnal knowledge of him or her against the order of nature; is guilty of a crime. Charge: unnatural carnal knowledge. 123 -- Any male person who, whether in public or in private, commits any indecent assault upon, or other act of gross indecency with, another male person, or procures another male person to commit any act of gross indecency with himself or any other male person, is guilty of a crime. Charge: indecent practice between male persons. ENDNOTES 1. "Anti-Gay Laws Repeal Refused," The West Australian (20 May 1994). 2. Andrew Koppelman, "The Miscegenation Analogy: Sodomy Law as Sex Discrimination" 98 Yale Law Journal 145, at 158. 3. Robin MacKenzie, "Transsexuals' Legal Status and Same-Sex Marriage in New Zealand," 7(4) Otago Law Review (1992) 569. 4. Alissa Friedman, "The Necessity for State Recognition of Same-Sex Marriage: Constitutional Requirements and Evolving Notions of Family," 3 Berkeley Women's Law Journal (1987-1988) 134, at 165. 5. Mark Strasser, "Family, Definitions and the Constitution: on the Antimiscegenation Analogy," 25 Suffolk University Law Review 981, at 993. 6. Criminal Justice Commission (Qld), Reforms in Laws Relating to Homosexuality: An Information Paper (Queensland: Research and Co-ordination Division, May 1990). 7. Ken Sinclair & Michael W. Ross, "Consequences of Decriminalisation of Homosexuality: A Study of Two Australian States" 12(1) Journal of Homosexuality (Fall 1985) 119, at 125. 8. Supra, note 6, p. 8. 9. Stephen Cox, "Decriminalisation of Homosexual Acts in Queensland: A Psychological Perspective" Australian Gay and Lesbian Law Journal (Autumn 1992) 130, at 141. 10. Ibid. 11. Supra, note 4. 12. Supra, note 9. 13. Ibid. 14. National HIV/AIDS Strategy: A Policy Information Paper (Canberra: Commonwealth of Australia, 1989), at 47. 15. Melissa Bull, Susan Pinto & Paul Wilson, "Homosexual Law Reform in Australia," 29 Trends and Issues in Crime and Criminal Justice (Canberra: Australian Institute of Criminology, 1991), at 5. 16. Supra, note 15, p. 6. 17. Ibid. 18. Ibid. 19. Ibid. 20. Ibid. 21. Libby Wherrett & Warren Talbot, HIV/AIDS Prevention, Homosexuality and the Law (Intergovernmental Committee on AIDS, Legal Working Party, February 1991), at 14-15. 22. Supra, note 15, p. 6. 23. Bill Lane, "Harrassment of Homosexuals in Queensland: Private Lives, Public Crimes," 13(4) Legal Service Bulletin (August 1988) 154, at 157. 24. Although the maximum penalties for these acts may be high -- e.g. in Tasmania offenders face imprisonment for up to 21 years. 25. Supra, note 23, p. 154. 26. Richard D. Mohr, "Why Sodomy Laws are Bad," Chapter 2 in Gays/Justice (Columbia University Press: New York, 1988), at 53. 27. Ibid. 28. For a general discussion of this topic, see Laud Humphreys' book, Tearoom Trade: Impersonal Sex in Public Places (Chicago: Aldine Publishing Company, 1975). 29. Supra, note 15, p. 4. 30. Ibid. 31. Supra, note 15, p. 5 32. Ibid. 33. See R v Vuckov and Romeo; R v Romeo; R v Romeo; (1987) 45 SASR 212; see also judgment of Street CJ in R v Dugan (1984) 2 NSWLR 554. 34. Supra, note 23, p. 157. 35. Sections 122 and 123 of the Criminal Code Act 1924 (Tas). 36. Andrew Darby, "Federal Bid to Overrule Tasmania's Gay-Sex Ban," The Melbourne Age (20 May 1994). 37. "Battle Looms on Gay Laws -- Groom Pledges Fight," Hobart Mercury (20 May 1994). 38. Accession of a country to the First Optional Protocol enables its citizens to bring a complaint directly to the UNHRC in relation to perceived violations of rights accorded to them by the ICCPR. 39. Providing a guarantee of the right to privacy. 40. The obligation to ensure the rights set out in the ICCPR in a non-discriminatory manner. 41. The right to equality before the law and equal protection of the law. 42. E-mail message to multiple recipients of list Queerplanet (1 May 1994). 43. The sex discrimination argument was successful when used for the first time in the case Baehr v Lewin 852 P.2d.44 (Haw. 1993) -- a case on the issue of same-sex marriage currently being retried in Hawaii. The Supreme Court of Hawaii held that the refusal of marriage licences to same-sex couples constitutes sex discrimination under the Hawaiian State Constitution and the State was therefore required to establish a 'compelling interest' for the continued refusal of marriage licences to these couples. 44. "Other status" in the context of Article 17 (the right to privacy) has been construed as including discrimination on any basis. It is not confined to the grounds actually contained in the provision. (Marc J. Bossuyt, Guide to the Travaux Preparatoires of the International Covenant on Civil and Political Rights, Dordrecht: Kluwer Academic Publishers, 1987, at 486). There is no reason why this interpretation of 'other status' should not also apply to other Articles in the Covenant. 45. Supra, note 44. 46. "Pair May Face Gay Charges -- First Test of the Law in13 Years," Hobart Mercury (23 April 1994). 47. "Homosexual Confessions Aim to Test Criminal Code -- Gays Admit Breaking Sex Laws," Hobart Mercury (12 May 1994). 48. E-mail message to multiple recipients of list AusGBLF (4 August 1994). 49. E-mail message to multiple recipients of list AusGBLF (12 May 1994). 50. E-mail message to multiple recipients of list AusGBLF (21 July 1994). 51. Ibid. Unfortunately, this means that the challenged sections will remain on the statute, although they will be rendered inoperative by the Bill, if it is passed, and their operation could conceivably be revived at some time in the future, if the Liberal Government were to gain power and repeal the federal legislation. 52. Supra, note 7.