August 9, 2021

An Australian judge has ruled that the definition of “homosexual” in the country’s Criminal Code was too vague and could be used to prosecute anyone.

The ruling by Judge Christopher Evans, who has presided over several sexual abuse cases, will allow police and prosecutors to apply to amend the law to include gay people.

Mr Evans ruled in the case of a man who was charged with sexually abusing a child and his lawyer told the ABC that the government should be prepared to introduce a definition of homosexuality that would be consistent with the law.

The law has long defined “homophobia” as a “negative and discriminatory prejudice” towards gay people, and the definition used in the criminal code is “a misapprehension about what constitutes sexual orientation”, Mr Evans said.

He said it was “not clear to me” that the “homophobic” meaning was being applied in the current law, and that the current definition of the term “homophobe” was too broad.

“This is a new development in Australian law and I’m concerned it is being applied to the most vulnerable members of society in the most damaging way,” Mr Evans told the Sydney Morning Herald.

He told the court that the previous definition of sexual orientation was too ambiguous and he believed the current one was the only one that could be applied.

“It is clear that sexual orientation is not defined in the Criminal Code,” he said.

The Supreme Court was asked if it would allow police to use the new definition to prosecute a person for sexual orientation offences.

“That’s something that would need to be determined in due course,” Justice Evans said in his ruling.

Justice Evans, a former Victorian Supreme Court judge, said the definition “does not meet the threshold of being sufficiently precise to encompass the complex and diverse community of gays and lesbians”.

He said the law was unclear, and “clearly, in my judgment, vague”.

He also said the word “homophile” should be replaced with the more common term “aggravated sex offence”.

Judge Evans said there was no evidence to suggest the definition was not “broad enough to capture some aspects of the sexual experience” of gay people and he did not believe the current criminal code was sufficiently clear.

“I am not convinced that the definitions in the code can be sufficiently precise and that they are not sufficiently vague,” he told the Herald.

Judge Evans was appointed to the bench by the former Australian Prime Minister Kevin Rudd in 2015.

Mr Rudd was the leader of the opposition at the time, and was the first Prime Minister to accept same-sex marriage.

“As a judge I am not prepared to adopt a position on a question of public policy, but I do believe the law is flawed in its current form and I am prepared to take a different approach to the law,” Mr Rudd said.

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