Text Size



Pioneering historians working in any new or developing field of research – such as gay history – usually face the great difficulty of flying blind, of having to start from scratch, with very few signposts showing us the way to where to find relevant source materials. But with Peter de Waal’s Unfit for Publication, our task has become so much easier.

Peter has worked for nearly four years, finding, transcribing and indexing material on sodomy and buggery cases that were prosecuted in NSW from 1796 till 1930, mainly in the Supreme Court, but also increasingly in the Quarter Sessions (privacy provisions prevent cases later than this date from being accessed). In addition to transcribing the court depositions, relevant judges’ notes, reports in Sydney and country NSW newspapers, and the NSW Police Gazette, in Appendix A he gives us an incredible amount of personal detail on another 2,500 offenders who were not tried in the Supreme Court. The work is based on some 250-odd cases, and runs to a million and a quarter words.

He has also included material on ‘ex-territorial cases’, starting with what was probably the first conviction for sodomy in Australia, namely the case of Adriaen Spoor and Pieter Engels, two young Dutch sailors whose vessel, the Zeewijk, had come to grief off the West Australian coast, in 1727. Caught in flagrante, they were convicted and – as their sentence prescribed – marooned without food or water on separate coral atolls, where they died. Perhaps these young men were the first martyrs of our tribe in this land.

With Unfit for Publication, Peter hasn’t only provided us with an invaluable research tool, however. He himself has already made some important observations. As he points out, given the sex- segregation circumstances of a penal colony, and the ongoing imbalance in the sexes even until very late in the 19th century, it is worth noting how few cases were actually prosecuted. Also, despite a rising population in NSW, “fewer cases went through the NSW Supreme Court”: all this seems to confirm that it was largely cases involving either force or an under-age participant that found their way into the higher levels of the judicial system. This is in line with what other historians have speculated, as is the fact that, despite changes in the legislation over time, juries were rarely willing to convict in what was originally a capital crime, unless the evidence was both overwhelming and irrefutable.

For gay historians, this material also gives an interesting insight into the lives of what we might call our ‘tribal ancestors’, for not only is the legal process on full view, but the evidence presented in each case gives us a window into these people’s lives, and how they managed their desires in a hostile society: where they might meet, how they might interact, and how they saw themselves and their ‘condition’.

And it is indeed a rich vein of history, indicating that ‘the love that dare not speak its name’ has been shared by men from all walks of life for more than two centuries. This was reluctantly acknowledged, in evidence to a Commission of Inquiry in 1837, by Sir Francis Forbes, the first Chief Justice of the NSW Supreme Court, who admitted under questioning that the colony had been referred to in the newspapers ‘as a Sodom’. (see Molesworth Committee Inquiry, 1837-38)

And while some researchers might find it disconcerting to read of ‘victims’ and ‘perpetrators’ as words to describe the ‘protagonists’ in these cases (for what was probably consensual sex between two adults, and in what we would now call a victimless crime), the way in which the legal system saw us then, prior to decriminalization in 1984, has meant that the utilization of such terms is not inappropriate.

But it isn’t only practitioners of gay history who will benefit from this ground-breaking work; any historian working in such diverse fields as Australian social history, or legal history, or gender studies, to name but a few, will be ever grateful for this roadmap into one of the nether regions of our past.

It is in many ways such an ironic title. Peter noted that the citation “Unfit for Publication” appeared almost seventy times in newspapers from 1842 to 1913: its first appearance was in the Sydney Gazette, its last in the Cootamundra Times. Perhaps it is fitting that, almost a century after it last saw print, the phrase reappears, naming a work that is most fit for publication.

The scope of Peter’s work is inspiring, and future historians will forever be indebted to his perseverance, and many will say a grateful ‘thank you’ to him for his willingness and determination to complete this onerous task!

Garry Wotherspoon, October 2006