How 3 Judges in 2024 Used Old Homophobic Laws To Make Female Paedophilia Prior to 1984 Legal
In NSW Australia.
In 1977, a primary school teacher Gaye Grant, began a ‘relationship’ with her year 5 student (age 9 or 10). There were many sexual acts and by October of that year, they were having sexual intercourse.
(She raped a child, but legally it gets a bit more complicated.)
By June 1979 the victim had started high school and began to realise that it wasn’t normal or right. He started to distance himself from her and eventually informed her that he was “breaking it off”.
Although it changed his personality, his physical and mental health and caused him to develop trust issues because of her control and grooming. It was only after he became a father the impact of this offending really came home to him.
Now, as a mature man, he sees his younger self as a “toy doll” that she could pick up and play with and believes he will carry the memories of what occurred to his grave. He still has nightmares and says that her words “I love you” still reverberate to this day.
In 2021 after telling his wife, he contacted the police, who helped him set up several covertly recorded telephone calls in which Gaye Grant admitted to having a sexual relationship with him and said:
Please don’t do anything terrible to me, I know I’ve been saying to God all the pain has given me, back problems, and everything else, I take it as penance because I am very sorry for anything I ever did, you know I’m very sorry…If I could turn back time nothing would ever happen. I’ve had my issues. It was nothing intentional ever to hurt you, I thought the world of you, you know that
In December of 2022 Gaye Grant pled guilty to ‘ Adult maintain an unlawful sexual relationship with a child’ and was sentenced to six years nine months imprisonment with a non-parole period of three years four months.¹
Her victim spoke positively of the future, saying “Having the courage and being brave enough to speak out about my abuse has given me the strength to stand up for myself and ensure that justice is served in other areas of my life as well” as well as thanking the many people who supported him.
On the 24th of May 2024 Gaye Grant appealed the decision on the basis that she was female and the law didn’t apply to females.² She was released from prison.
On the 24th of April 2024 her conviction was quashed, and an order of acquittal was entered.³
How Did This Happen?
The short answer is, that in February 2024, Helga Lam won her appeal against similar charges under the same laws. Her Appeal was before Justices Anthony Meagher, Richard Weinstein and Peter Garling, and she won on the basis that:
the accused is a female and s 81 of the Crimes Act 1900 (NSW) was applicable only to conduct constituting an “indecent assault” committed by a male upon a male.⁴
Which meant that, the justices in Grant’s case, David Davis, Natalie Jane Adams and Sarah McNaughton, had to quash Gaye Grant’s conviction, so that the law could be applied consistently, even while calling her conduct “egregious and abhorrent” and acknowledging “the significant distress no doubt being experienced by the victim”.⁵
But that doesn’t really answer the question, it’s just a long way of saying ‘because-I-said-so’ but with the ‘I’ being Justices Anthony Meagher, Richard Weinstein and Peter Garling.
Which means the question shifts to ‘How did this happen for Helga Lam’?
Helga Lam’s Case
In 1978, a high school teacher, Helga Lam, allegedly had sexual intercourse and engaged in other sexual acts with four male students who were between 13 and 16 years old. (The youngest child who had just turned 13 said that he was fearful and upset at the time.)
She was arrested in 2021 and charged with 15 counts of indecent assault upon male persons.
She applied for a permanent stay on proceedings on the basis of:
Being a female and the law only applying to male homosexual acts.
That the counts she was charged with use different wording, compared to the old law.
That she should be judged by the “community standards” of 1978 of “indecency”, and a 2023 jury couldn’t do that.
The primary judge on the case, Her Honour Justice Jennie Anne Girdham, dismissed all those claims and held that indecent assault could be committed by a female, that “whosoever” clearly meant “whosoever” not, “a man”. Or better put in her more professional judge way of saying it:
To my mind, the terms of section 81 are not ambiguous. The actual language used is clear and apparent. The offence requires the Crown to establish an act of indecency upon a male person by “whosoever” (an accused), irrespective of whether such act was consented to by the other person. It is preceded by ss 79 and 80 both of which commence with the term “whosoever”. Neither section limits the perpetrator to a male person, in contrast to ss 81A and 81B each of which commence “whosoever, being a male person”.
Her Honour Justice Jennie Anne Girdham, scheduled Helga Lam’s trial for mid-March but she never had to attend because in February the Supreme Court of NSW Appeals Justices, Anthony Meagher, Richard Weinstein and Peter Garling, quashed the indictment, claiming that a female could not commit the offence, and never could. That section 81 was directed to homosexual conduct.
Before we get into Justice Anthony Meagher’s reasoning, including the history of the law, it is worth knowing the wording of the law.
Helga Lam and Gaye Grant were charged under section 81 of the
Crimes Act 1900 (NSW), or more accurately under the updated CRIMES ACT 1900 — SECT 66EA Persistent sexual abuse of a child. Which also required the acts to be illegal at the time of offending, and the law that held that sexual acts against a boy were illegal at the time was:
81 Indecent assault on male
Whosoever commits an indecent assault upon a male person of whatever age, with or without the consent of such person, shall be liable to penal servitude for five years.
How does this law not apply to them?
The short version of Justice Anthony Meagher’s reasoning is that in full context these laws only apply to homosexual acts, not acts committed by females against males. (also mentions that the equivalent act for female victims likely couldn’t be committed by females.)
He reached this conclusion with a long timeline of how the laws were developed, as well as the title heading they were listed under. “Unnatural Offences”. He goes into great detail of the history of the law to explain this context.
Justice Peter Garling, agreed for similar but different reasons.
He determined that it was a law against homosexuality because it was in the section listed as “Unnatural Offences” and because it can occur with or without consent, to a victim of any age, and in public or private. Therefore if applied to a woman, could cover all hetero sexual conduct, which “would be absurd.”
It was the intent at the time though for all homosexual sexual conduct to be illegal, even between consenting couples in private.
And because when the laws were changed, the speeches made about it addressed the part of the law that they wanted to change, namely consensual homosexuality, ignoring any other parts.
Justice Richard Weinstein said that he agreed with Justice Anthony Meagher and had nothing to add.
Timeline:
Although this is mostly a timeline of laws, it also includes the assaults and alleged assaults of the related cases, to show where they fit within these changing laws.
(Laws are for NSW Australia unless otherwise stated, as in the early ones that were for England/UK.)
1533: English law criminalising “Buggery with man or beast” enacted. (appealed 1553, re-enacted 1562)
1828: Many acts consolidated and amended (including the aforementioned) into the Offences Against the Person Act 1828.
1851: The 1851 UK Act, first establishes “indecent” assault as well as any attempt to have carnal knowledge of a girl under 12.
1861: Offences Against the Person Act 1861 (UK) first includes offences of indecent assault upon a male person and indecent assault upon a female person, titled “Unnatural Offences” and “Rape, Abduction and Defilement of Women” respectively.
1883: The 1883 NSW Act is created based (in (relevant) part) on the 1861 UK Act including “Unnatural Offences” with the added words “whatever age with or without the consent of such person” and “Rape and similar Crimes” with “Carnal knowledge of girl by teacher” added.
1883: The Criminal Law Amendment Act 1883 raises the age of consent to 14.⁶
1900: The Crimes Act 1900 (NSW) consolidates NSW laws.
1910: Crimes (Girls’ Protection) Act 1910 (NSW) adds step-father/daughter relationships.
1924: Consent no defence in assault of girls under 16 is added to law.
1934: A UK case convicts a woman under section s 62 after she raped a 12-year-old boy.
1955: Parliamentary debate mentioned a “homosexual wave that unfortunately has struck this country […] must be eradicated.”
1977: Mandatory reporting laws for child abuse are introduced with Child Welfare Amendment Act 1977 and Laws for child porn are created.
April 1977: Gaye Grant starts her relationship with her Year 5 (10 year old) student.
October 1977: Gaye Grant has had sexual intercourse with her victim.
1978: Helga Lam allegedly assaults 4 school boys aged 13 to 16.
1979: Gaye Grant’s victim is in High School and “Breaks it off”.
1981: Common law offence of rape repealed and replaced with a series of sexual assault offences that used gender-neutral language, Crimes (Sexual Assault) Amendment Act 1981
1982: Anti-discrimination laws passed in NSW.
1984: Crimes (Amendment) Act 1984 (NSW) Stops consensual homosexuality from being a crime.
1985: The law around paedophilia changed from “carnal knowledge of a girl” and “Homosexual intercourse with a boy” to “sexual intercourse with a child”. Crimes (Child Assault) Amendment 1985
1996: Definition of ‘sexual intercourse’ changed to include transgender women Transgender (AntiDiscrimination and Other Acts Amendment) Act 1996
2003: Gendered language removed from NSW sexual offence legislation Crimes Amendment (Sexual Offences) Act 2003.
2003: The age of consent is reduced to 16 for homosexuals, equal to heterosexuals. Crimes Amendment (Sexual Offences) Act 2003
2007: Grooming charges added.
2014: the Criminal Records Act 1991 was amended to allow historical homosexual offences to be extinguished. (consensual adult conduct only.)⁷
2018: Introduction of the CRIMINAL LEGISLATION AMENDMENT (CHILD SEXUAL ABUSE) ACT 2018⁸
2021: The victim of Gaye Grant reports the abuse to the police.
1 June 2023: Helga Lam, charged with 15 counts of indecent assault upon male persons.
24 June 2021: Gaye Grant, charged with 22 counts of indecent assault.
20 December 2022: Gaye Grant, sentenced to a term of 6 years’ and 9 months’ imprisonment, with a non-parole period of 3 years and 4 months.
12 February 2024: Helga Lam wins her appeal and her indictment is Quashed.
1 March 2024: Gaye Grant is granted leave to appeal and allowed out of prison.
24 May 2024: Gaye Grant’s conviction is quashed and an order of acquittal is entered.
(The Laws mentioned (After 1900) are for NSW Australia, for a timeline of laws relating to child sexual abuse in the other states of Australia see the Historical review of sexual offence and child sexual abuse legislation in Australia: 1788–2013⁶ created for the Royal Commission into Institutional Responses to Child Sexual Abuse.)
What does this mean going forward?
Today sexual assault crimes against children (under 16) are illegal in NSW Australia regardless of the gender of perpetrators or victims, and they have been since about 1984, when the laws changed.
The current law is worded:
(1) An adult who maintains an unlawful sexual relationship with a child is guilty of an offence.
: Maximum penalty — Imprisonment for life.⁹
With many more details following that statement, including defining an “unlawful sexual relationship” for assaults against a child that include more than a single incident, as well as the details that historical sexual offences that happened prior to this law can be charged using it, so long as they were illegal at the time they happened.
Historical sex crimes that were committed by men can still be charged in NSW. (Although these have also often proved difficult to prosecute, often due to the offenders age and age-related health conditions, as well as establishing evidence after much time has passed.)
Any sexual assaults or rapes that have happened after 1985 can be charged.
Any acts committed by females against boys or men prior to 1985 will not be charged unless the specific acts also fit within a different law outside of “Unnatural Offences” “indecent assault against boys” which, it has now been determined, were not illegal at the time.
Sources/References:
¹ First Judgement for Gaye Grant: https://www.caselaw.nsw.gov.au/decision/186c97c58915fe24acc9354d
² First appeal for Gaye Grant: https://www.caselaw.nsw.gov.au/decision/18df6b2fca690fc018e2b521
³Finalised appeal for Gaye Grant:
https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCCA/2024/78.html?context=1;query=Lam;mask_path=
⁴ Appeal for Helga Lam: https://www.caselaw.nsw.gov.au/decision/18d8c4f63e8309db70fad1a7
⁵ Final appeal for Gaye Grant: https://www.caselaw.nsw.gov.au/decision/18f9330c6b54f4b14d3bcbbe
⁶Historical review of sexual offence and child sexual abuse legislation in Australia: 1788–2013:
https://www.aic.gov.au/sites/default/files/2020-05/Historical-review-sexual-offence-child-sexual-abuse.pdf
⁷Extinguishment of historical homosexual convictions: https://dcj.nsw.gov.au/legal-and-justice/laws-and-legislation/royal-prerogative-of-mercy-and-reviews-of-convictions-sentences/extinguishment-of-historical-homosexual-convictions.html
⁸CRIMINAL LEGISLATION AMENDMENT (CHILD SEXUAL ABUSE) ACT 2018 — As at 2 December 2018 — Act 33 of 2018:
https://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/repealed_act/clasaa2018434/
⁹CRIMES ACT 1900 — SECT 66EA Persistent sexual abuse of a child: https://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ca190082/s66ea.html#:~:text=(1)%20An%20adult%20who%20maintains,penalty%2D%2DImprisonment%20for%20life.&text=%22unlawful%20sexual%20relationship%22%20is%20a,a%20child%20over%20any%20period.
NSW Legislation, timeline of legislation:
https://legislation.nsw.gov.au/view/html/inforce/current/act-1900-040#sec.66B