Therapeutic Jurisprudence and Homosexual Expungement Law: Lessons from Australia and New Zealand/Aotearoa

Abstract

Until recently, a historical conviction for a homosexual offence remained on an individual’s criminal record until expungement legislation was enacted to facilitate such convictions to be spent. An analysis of parliamentary debates in New Zealand/Aotearoa and across Australia highlights the aim and opinions of lawmakers in their desire to bring about a therapeutic remedy to address the ‘criminal stain’ of a conviction for a historical homosexual offence. Along with the aim to remedy the effect of a conviction, parliaments used the law reform debate as a broader therapeutic project of inclusiveness for lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) communities. The success of expungement is evidenced by the passing of legislation, with most applications to expunge granted. These positive outcomes are countered by a low number of applications to expunge, a refusal by all governments to provide reparations and the use of expungement legislation to garner favour with all members of LGBTIQ communities—a move open to an accusation of government virtue signalling.

Keywords

• historical homosexual offences
• expungement legislation
• therapeutic jurisprudence
• lgbtiq communities