jews and homos&xuals, page-26

Just to prove I do not denigrate either jews or homos&xuals by noting their social parallels, here is a story of a legal precedent set by a person who inhabits both cultures with equanimity:

Gay balance in the scales of justice
Sydney Morning Herald - Richard Ackland

Thanks to Rene Rivkin, the celebrity stockbroker, we have a ground-breaking decision from the NSW Supreme Court that it is no longer defamatory of itself to say that someone indulges in homos&xual inter course.

This was decided by Justice Virginia Bell who presided over the recent preliminary trial before a jury of Rivkin's defamation action against Channel 7.

The shift in legislative reform over the past few years, which has seen both State and Federal parliaments make it a breach of the law to discriminate against homos&xuals, has finally affected the thinking of defamation courts.

Seven's "Witness" program had broadcast material following a coroner's inquiry into the death of Caroline Byrne, a girlfriend of Rivkin's chauffeur, Gordon Wood.

Just before the jury was empanelled, counsel for Channel 7, Robert Stitt, QC, advised the judge that he wanted to argue that the defamatory imputations pleaded by Rivkin did not arise from the broadcast on March 4, 1998.

The relevant imputation was that Rivkin "had engaged in homos&xual inter course with Gordon Wood". The program had interviewed Wood and had asked him -- though the question had no substance or basis of fact -- if Caroline Byrne had put him
under surveillance "and had sprung [Wood] having homos&xual intercourse with Rene Rivkin". This was denied by Wood and did not figure in any
investigations. Rivkin sued the TV network for broadcasting it.

Stitt referred to legislation which he argued reflected a change in community attitudes to homos&xuality. Amendments to the NSW Crimes Act had abolished the former proscription against homos&xual conduct between consenting adult males. The Anti-Discrimination Act made it unlawful to discriminate on the grounds of s&xuality. The Anti-Discrimination (Homos&xual Vilification) Amendment Act made it an offence in public to incite hatred towards, serious contempt for, or severe ridicule of a
homos&xual.

The Property (Relationships) Legislation Amendment Act of 1999 meant courts could now adjust property rights between homos&xual couples. And in the Commonwealth sphere the Migration Act and the Workplace Relations Act 1996 had removed discrimination based on s&xual preference.

This is not to say that these and other pieces of legislation decide the standards of the representatives of the ordinary reasonable viewer (ie, the jurors). Justice Bell said the legislative policy "spoke strongly of the change in recent years in social and moral values concerning homos&xuality".

She went further and accepted it was no longer open to contend that "the shared social and moral standards with which the ordinary reasonable member of the community is imbued include that of holding homos&xual men (or men who engage in homos&xual s&x) in lesser regard on account of that fact alone". She declined to allow the jury to decide the meaning of the imputations as originally pleaded by Rivkin and struck them out.

What Justice Bell emphasised is that context is everything. If you call someone who is married with five children a homos&xual it could be that he could sue on the basis that he is a hypocrite or maybe someone who abuses his power.

That is why Rivkin had to come up with another pleading for the jury at this preliminary trial. He argued, successfully, that it was defamatory to say that he "engaged in homos&xual intercourse with Gordon Wood, a man who was an employee of his, much younger than him, who viewed him as a father figure, upon which he lavished gifts and who was engaged to be married". This put the homos&xual pleading in the context that Rivkin was abusing his power which the jury did find to be defamatory.

It is also telling that Justice Bell accepted the proposition that people of certain religious beliefs "may think less of a man who engages in homos&xual intercourse".

But interestingly for Archbishop George Pell and Anglican Archbishop-elect Peter Jensen, both avowed opponents of homos&xual practices, the judge found that the relevant test was one of general community standards, not the attitudes of sections of the community.

Until recently there has been a dichotomy between the policy considerations embraced in various pieces of legislation which in some instances instruct citizens how they "should" respond to certain minorities, and indeed how ordinary people "actually" responded.

Justice Bell is, in effect, saying that the mainstream community no longer finds homos&xuality a matter of censure. Would those many Australians who still live in the closet be quite so certain?