Enormous homophobia on the bench, claims Marsden

Troubling allegations from former President of the NSW Law Society ... Letter to the Judicial Commission ... No magic button for gays ... Explaining gay issues to Ernie Schmatt, in detail ... From Justinian's Archive, March 1, 2001  

John Marsden: complaint about nasty stuff on the bench and at the bar table

Mr. E.J. Schmatt
Chief Executive
Judicial Commission
DX 886 SYDNEY

Dear Mr Schmatt,

I enclose a tape I have purchased from Media Monitors being the 4 Corners report of last Monday, 17th July, 2000. This report investigates the increase of anti-gay violence in far north Queensland.

I am forwarding this tape to you in your capacity as Executive Director of the Judicial Commission for referring to the Judicial Commission's education portfolio of educating Judicial Officers. 

I would appreciate if you could bring the tape and this letter to the notice of the Chief Justice, the President of the Court of Appeal and Chief Justices of all jurisdictions. 

I, as a gay man, can assure you that the material contained in the tape exists throughout country areas of New South Wales and, I think, probably the rest of Australia. I can also assure you that similarly in the city areas, anti-gay activity and anti-gay violence has (sic) increased substantially over recent years. 

Frightening statistics show that the suicide rate in young gay men is three times higher than the norm and that is something, as a gay person, that causes me great, great concern. 

I think a lot of people don't understand that gays and lesbians have little choice about their lifestyle. 

It is often said that they select that lifestyle. 

I, as a gay man and an a gay lawyer and an officer of the Supreme Court can assure the Judicial Commission that that is not correct, that one is born gay, one has little ability to change that and in many cases if one had a button that they could press then they would have pressed that button so that one could have live a 'normal' life, married, had children and family and has all the love and excitement that goes with raising a family. 

I am writing this letter because I believe that within our legal system within the Judges in all jurisdictions, there is a substantive amount of homophobia. 

I, in my recent trials and tribulations, have within the legal circles experienced that, not from the Judge involved in my litigation, no way. 

However, I have had to sit in Court and watch eminent QCs make homophobic and anti-gay jokes, laugh at gay lifestyles, seen gay people subject to cross-examination in relation to their lifestyle, seen people who are not gay, but simply because they gave evidence in a Court case involving a gay man, asked questions such as 'Are you an ex-lover?' 'Are you gay?' 

I heard Sotto Vace's (sic) comments from the Bar table that were anti-gay and extremely hurtful. 

I have in the last two years seen leaned Judicial Officers make what they may think to be innocent comments, that were damming to a gay person. For example: 

a. A gay man in District Court litigation referred to his lover. The Judge directed that he refer to him as his 'mate'. 

b. A lesbian lady in an action against a multi-corporate entity was asked about her sexuality which had absolutely nothing to so with the case but those questions were continued to be asked.

c. I have seen the reaction of both Prosecutors, particularly Police Prosecutors, and Judicial Officers when people have come to Court admitting that they were suffering from full blown AIDS. 

I do not think that Judicial Officers really understand the enormous homophobia in our community and the enormity of the persecution of a minority group. 

Being gay or being a lesbian places and enormous burden on the individual because unlike being black or disabled or other minority groups, if one is gay or lesbian one has to make an enormous decision as to whether one goes public or whether one tells one's family, one's friends, one's workmates or whatever. 

It is obvious that if you are in another minority group such as being black of the like then you don't have to make that impossible, difficult, heartbreaking decision. 

There is in our community amongst our lawyers many who have moved to the inner city, Darlinghurst, Newtown, gay gullies, not letting their parents, family or loved ones in the outer suburbs, the North Shore or from country towns know that they are gay and they make their annual pilgrimage home at Christmas and Easter with the charade that they are straight, heterosexual men and women living in the inner city. 

It is amazing to see some of them even make big efforts to change their appearance to look what one describe in cynical terms as 'straighter' when they make their pilgrimage home. 

It is unfortunate, and I think in come ways unintended, that as a result of the Royal Commission conducted by His Honour Mr Justice Wood that the amount of gay violence has increased and whilst this is anecdotal everyone who one talks to in the gay community talks about the fact that resulting from that Royal Commission was the constant referral of people associating with gay men with paedophilia (sic). 

There was of course, the sensationalisation of turning having sex with a 17 year old into paedophilia. 

There was the sensationalisation of a bar called Costellos which seemed to have been frequented by more lawyers than most bars. 

There then was, of course, the sensationalisation of Franca Arena's allegations with her cohorts, Kate Wentworth and others, suggesting that high profile gays in legal circles were running all sorts of odd paedophile rackets involving Satan (sic) activities. 

These all came because of the hysteria which developed and the McCarthyism that developed as a result of the Wood Royal Commission. 

I again say that that wasn't necessarily the fault of His Honour and certainly I don't think it was his intention, it just so happened. 

True it is that in our judicial ranks we have had both 'out' and 'closeted' gay Judges.

True is it that in state Chief Justices, at least one Chief Justice from one state was openly so. 

True it is that we have had gay Judicial Officers in the Court of Appeal, in the Supreme Court, in the District Court, in the Federal Court and in the Local Courts. 

True it is that some have been 'closeted' and have participated in reverse discrimination by taking out their own hangups about being a 'closeted gay' in addressing the issue by being difficult in dealing with gay people.

True it is that in recent years two Supreme Court Judges, one from this state and one from another state have committed suicide relating to their sexuality. 

True it is that at least four Judges of the High Court over the years have been gay.

However, all of this has not meant that there is not in the judiciary an enormous amount of homophobia and a lack of understanding of gays, both men and women, and the problems that they face in everyday life and the number of gay men and women who live double lives. There are a number of gay men in the western suburbs living with their wives and hanging out at public toilets. 

It was thought that the enormous effort of people involved n the Anti-Discrimination Board, such people including Justice Matthews, now at the Federal Court, or the first enquiry (sic) into gay men and women led by Justice Elizabeth Evatt would have done something to overcome that phobia, that problem in the Judicial community. 

It probably did for a time but now, I think and I suggest, that it has failed again.

The increase of acceptance of the 'gay panic defence' has become a regular defence for people involved in attacks on gay men and, unfortunately with the prejudices of our society, such defence seems to be readily accepted by some juries. 

The activities of what are commonly called 'poofter bashers' are not recognised or accepted in our community including judicial persons. So many gay men and women fear going to Court to report the viciousness of these attacks. 

'Poofter bashers' are a vile group of people, who sometimes are themselves gay, indulge in this activity to try and justify their own gay behaviour. 

There is no doubt in our community that the gay and lesbian lifestyles are different. 

I can assure you that I have practised law since 1967, I have held many positions involved in Law activities, I have committed myself to the practice of the Law and yet I have seen in recent times the enormity of the lack of respect of gay and lesbian people within our judicial system. 

I hope by bringing this video and this letter to your notice and presumably in accordance with your responsibility to bring it to the notice to the heads of all jurisdictions in the judicial eduction process that I may take some small step, and that's all it would be, in trying to educate some people of the enormity of the problem and the sadness we suffer when judicial persons do not understand respect or treat as a equal gay people (sic). 

I have learnt to understand what it must be like or a foreigner in our Courts or for an indigenous person in our Courts when they are judged by English speaking persons, in English speaking Courts, with English speaking lifestyles and English speaking Laws. Or, indigenous people being judged by white people in white Courts under white Laws. 

It may surprise you for me to say that there are many gay lawyers, whilst many of them would not admit their gay lifestyle, the gay lifestyle is such that often appearing in our Courts as a gay person feels totally and absolutely on an island by his or herself being judged by heterosexual people in a heterosexual Court based on a heterosexual lifestyle.

This letter and this video may do something, I would hope, to remove the prejudices and lift the homophobia and lift the lid on some of the homophobic attitudes shown by Judicial Officers, Court Officials in this the new Millennium.

Yours faithfully,
J.R. Marsden