31 December 2013


Alongside the 100 page Indian Supreme Court decision [PDF]  overturning the Delhi High Court's decision on section 377 of the Indian Penal Code I've encountered ‘A Gang of Judicial Assassins’: George Bateson and Colonial Sodomy Laws' by John Waugh in Intimacy, Violence and Activism: Gay and Lesbian Perspectives on Australian History and Society (Monash University Publishing, 2013) 25 edited by Graham Willett and Yorick Smaal.

The Supreme Court decision is poorly written and poorly conceptualised in terms of human rights protection under the Indian Constitution, dignity, privacy, 'Indian values' and the impact of the Code on consenting male adults.

Waugh comments -
 One night in November 1860, Melbourne police burst into the room where George Bateson, a 42-year-old Englishman, was in bed with a young man. Bateson was arrested and later convicted of sodomy. In prison, he poured out his outrage in a long series of letters in which he claimed to be the innocent victim of a conspiracy. 
This paper puts Bateson’s case in its legal context by outlining the laws that applied to sex between men in colonial Australia, and considers two highly unusual aspects of the case: the police entrapment of Bateson, and the cache of letters in which he gives his version of the events leading to his conviction.
Waugh notes -
One Monday night in November 1860, George Bateson, a 42-year-old stock agent, was walking along Bourke Street in Melbourne’s theatre district. He got into conversation with William Gardner, 19, a ship’s carpenter, who had been at the theatre. Bateson invited him to have something to drink; they went to a pub and then went walking near the city’s first exhibition building, in William Street, where, Gardner said, Bateson hugged and kissed him. Seeing a light in the sky, they walked to Batman’s Hill (near today’s Southern Cross Station) and watched a ship on fire in the distance. They finally separated around 2 am, after arranging to meet the following night. 
On Tuesday night the two men went to the theatre, where Bateson bought Gardner a ticket and a glass of ale. After the show, they had a cup of coffee and then went to the hotel where Bateson was staying. They had another glass of ale, and Bateson asked Gardner to stay the night with him. The two spent the night together in bed, during which (according to Gardner) Bateson had anal intercourse with him. The following morning they arranged to meet again on Friday. 
This much of the story could, with a few variations, be a seduction tale from many different times and places, but the conclusion brings it back to its actual setting, at a time when sodomy was a hanging offence. On Friday Bateson and Gardner went to the theatre again, then back to Bateson’s hotel and to bed. While they were in bed together, two detectives burst into the room, where they found Bateson on top of Gardner. They arrested the two men and took away the sheets, which a doctor later testified had semen on them. 
Gardner had gone to the police on Wednesday morning. They told him to keep his appointment with Bateson on Friday, when they would be watching. The two detectives hid in a closet outside Bateson’s room, and on a prearranged signal from Gardner they rushed in and arrested both men. Bateson was charged with sodomy and later convicted. His mandatory death sentence was commuted to fifteen years hard labour, the first three in irons. 
Robert French noted Bateson’s case briefly in his pioneering paper on archival sources for gay history in 1992, highlighting its connection with the theatre world, but extensive records that were unavailable to French give the case an added and somewhat different significance. My focus here is not on the questions of identity, sexual repertoire, language, legal severity and the development of subcultures to which attention has been given in other studies of colonial Australian prosecutions for sex between men. Instead, I put Bateson’s case in its legal context by outlining the laws that applied to him and others at the time, and I consider two aspects of the case that make it very unusual for its period: the police entrapment of Bateson, and a cache of letters which give his version of the events leading to his conviction. The official disapproval of Bateson’s entrapment indicates one of the reasons why this kind of police activity was much less common in the mid-nineteenth century than it became a century later. Bateson’s letters prompt some observations on the reasons why the voices of the accused are usually missing from the records of colonial sodomy prosecutions.