Criminology Australian & New Zealand Journal of
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Criminology Australian & New Zealand Journal of
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The Enforcement of Morality: Law, Policing and Sexuality in New South Wales
Paul Johnson
Australian & New Zealand Journal of Criminology 2010 43: 399
DOI: 10.1375/acri.43.3.399
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A R T I C L E S
This article addresses the policing of consensual sexual activity in public places in
New South Wales (NSW), Australia. It builds upon previously published work
(Johnson, 2008) in which I suggested that the current composition of Australian
law may encourage its differential enforcement in relation to sexual orientation and,
as a result, produce disproportionate social control of male homosexual conduct.
Here, I investigate that proposition using data from an empirical study of the
enforcement of law by NSW Police and, in particular, their negotiation of the
sensitive issue (NSW Police, 2008) of policing beats those public locations
such as parks, beaches or public lavatories, where men meet to facilitate or engage
in sexual activities. Despite the development of a culture of liaison between NSW
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Police and the gay and lesbian community (see, e.g, Network of Government
Agencies, 2007; Thompson, 1991), and the more general embracement of styles of
community policing (Findlay, 2004), there is a dearth of information about operational policing in this area. As such, this research is a first step towards addressing,
what Dalton (2008) calls, the vexatious issue of policing male homosexual public
sex in NSW.
This article draws upon data produced during a qualitative study conducted in
NSW in August/September 2009. The study involved semistructured interviews
with a purposive sample of 12 personnel from criminal justice related agencies who
are routinely involved with the policing of beats. The aim of the interviews was to
provide the first insight into this area of operation policing in Australia from the
perspective of criminal justice professionals. Such an insight is rare because police
action in relation to consensual sexual acts in public places (like the behaviour it
relates to) is neither readily observable nor produces much critical public discussion.
The police have often been unwilling to participate in social science research of this
kind, and previous studies have used different methodologies to circumvent the
difficulties posed by gaining access to them: these have included covert participant
observation (Humphreys, 1970), qualitative interviews with suspects (Dalton,
2007), analysis of court records (Moran, 1996), a review of official reports by law
enforcement officers (Walby, 2009), and an examination of surveillance and the
Internet (Ashford, 2006). Few researchers, with the exception of Desroches in
Canada (1990 and 1991), have been able to engage with operational officers on the
ground to illuminate this area of law enforcement.
The fieldwork for the research consisted of individual interviews with six NSW
Police officers and a group interview with six members of the Beats Working
Group. The sample of police officers comprised individuals from the rank of senior
constable to superintendent and was selected, in negotiation with a senior officer
acting on behalf of the Commissioner of Police, on the basis of the officers work as,
or with, Gay and Lesbian Liaison Officers (GLLOs). Two of the officers have been
instrumental in revising NSW Police guidelines for policing in this area and in
delivering specialist beat training to officers across the force. The interviews lasted
between one and two hours and were conducted in person (with four officers in
Sydney) and by telephone (with two officers in north NSW). The Beats Working
Group comprises representatives from health, law enforcement (including NSW
Police, Park Rangers, and NSW Attorney Generals Department), local government, and gay and lesbian community organisations. This group is an inter-agency
forum that, since its formation in 2007, has worked to improve the health and safety
of beat users, minimise the impact of beats on the environment and maintain public
amenities for beat and other users of such space. I attended and observed one of the
regular meetings of the group in Sydney and conducted a group interview with its
members. In all interviews I explored five key areas with respondents: the relationship between NSW law and policing; investigative practices; police training; historical changes in policing; and perceptions of complaints to the police about, or by,
those engaged in sex in public places.
There are some limitations to the qualitative dataset. The size of the sample, and
the fact that it comprises individuals with a specialist interest in this area of law
enforcement, means that it offers an insight into policing from a particular stand-
400
point. One police officer told me that the research offered a partial understanding of
policing because it focused on the views of those who work as, or closely with,
GLLOs and excluded the views of those officers who take a hard line on homosexual sex in public places. However, in acknowledging that those who work as GLLOs
may have a particular political or professional orientation to this aspect of police
work (they might not be hard liners) does not mean that those I interviewed were
homogenous in their views or practices. On the contrary, the officers with whom I
spoke had divergent views on, and approaches to, the social control of public sexual
activities. Similarly, the diversity of membership of the Beats Working Group meant
that a range of opinions and experiences were expressed. I have sought to represent
the richness of the views of these professionals throughout the article and use them
to illuminate some of the complexities of policing in this area. Contrasting these
individual voices is compromised by the necessity of maintaining the anonymity of
the respondents. Because of the size of the sample, the way in which access to police
officers was negotiated, and the distinct composition of the Beats Working Group, I
provide very limited identifying information in relation to each individual.
Using the data from the qualitative interviews, and an analysis of NSW Police
policy documents, I consider operational policing within the broader context of
contemporary NSW law. In the first sections of the article I explore the legal
construction of public sex offences and argue that the law facilitates forms of police
discretion that encourage the disproportionate social control of male homosexual
conduct. I show that selective enforcement, while often explained by the police to
be the inevitable outcome of their response to complaints by the public, is significantly influenced by officers view that male homosexual conduct falls more readily
within the scope of the law. While this attracts the complaint that beats are overpoliced, and that this expresses the institutional homophobia of NSW Police, a
historical understanding of policing shows that operational practices designed to
target men engaged in homosexual sex in public (practices once regarded as a core
aspect of police work) have become officially regarded as antithetical to contemporary policing and are actively discouraged. I argue that the disproportionate focus on
male homosexual conduct cannot be explained simply by viewing NSW Police as
institutionally homophobic but rather must be seen to result from the enforcement
of the current legislation within the context of the broader social, cultural and
political relations of contemporary society.
A key argument throughout this article is that the moral decision-making of
police officers is crucial in determining the scope, focus and application of the law.
The decision-making of officers is decisive because the law creates a dynamic arena
in which different moral values relating to sexuality are brought into tension and
compete for legitimacy. In the latter sections of the article I explore how officers
adjudicate this moral competition by using their discretion to transform the
abstract moral paternalism of the current legislation into particular forms of social
control. There is no doubt that police officers use of discretion is influenced by their
own conceptions of social morality (Reiner, 2000; Westley, 1970) and that officers
drink regularly from the fount of morality and replenish their internal esprit de
corps by invoking a larger virtue that their actions serve (Herbert, 1996, p. 815).
What is less understood is how officers negotiate competing community, societal,
organisational and personal moral demands in order to interpret and enforce the law
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PAUL JOHNSON
in this area. The final sections of the article employ the conceptual framework of
moral habitus to explore how police discretion in relation to sexual activities in
public is significantly determined by the broader heteronormative social, cultural
and political relations in which policing operates.1
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2007
Offence
Male
Female
Total
Male
Female
Total
Section 4(1)
Behave in offensive manner
in/near public place/school
1920
218
2138
2321
215
2536
Section 5
Wilful and obscene exposure
in/near public place/school
149
154
135
138
404
405
PAUL JOHNSON
406
be disproportionate. Most heterosexual sexual acts in public places are, they said,
dealt with using either section 4 or, more commonly, through the issuing of move on
directions under section 197(c) of the Law Enforcement (Powers and Responsibilities)
Act 2002. By contrast, in cases of genital sexual acts involving men, all of the officers
I interviewed were unequivocal that the use of section 5 was potentially appropriate.
Nevertheless, there was a shared perception among those I interviewed that the
use of section 5 in respect of homosexual sexual activity was variable across Local
Area Commands (LACs). One senior constable told me that in her Sydney LAC it
would be common, for instance, to charge male suspects detected engaging in
masturbation, either alone or with others, in a public place with both section 4 and
5 offences. The purpose of doing so, she told me, is to use section 5 as a back-up
charge so that, in the event of a magistrate finding insufficient evidence for one
charge, the other can be considered. By contrast, another senior constable in a
different Sydney LAC told me that the use of section 5 is discouraged in cases of
consensual sexual activity and usually reserved for other offences, such as flashing.
If an officer came back to the station with a public sex report and wanted to charge
under section 5, she told me, I would strongly urge the offence to be reclassified as
section 4 unless there was a victim against which the action was directed.
In summary, accounts by officers suggest that, while differences in LACs may
produce variations in the enforcement of the law, it is clear that male homosexual
behaviours are understood to more easily fall within the scope of section 5. This can
be seen as the result of the way in which cultural and moral interpretations of sexual
conduct meet in offence categorisation: first, male homosexual behaviour is more
easily imagined to fall within the scope of section 5 because of cultural understandings of how male genitals can be wilfully displayed in public; second, the wilful
display of genitals in the context of male homosexual acts is culturally encoded as
possessing more capacity to harm the audience who witnesses it; and third, these
offensive and obscene acts are usually imagined to taken place in geographical
contexts, such as public lavatories and parks, where they can be easily witnessed by
an audience.
It is clear that a key element of offence categorisation is regarded to be the
impact of sexual activities in public places upon those who witness and are harmed
by them. The police officers I interviewed saw offence categorisation as the
outcome of their duty to enforce the law in such a way that it responded to the
needs of people in the communities that they police. Because of this, all of the
officers strongly expressed the view that the interpretation of the law in this area
should be in response to problems that are identified by the community itself.
Therefore, as I explore in the next section, criminal justice practitioners regard the
most important factor determining offence categorisation to be the nature of
complaints that the police receive from members of the public.
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PAUL JOHNSON
residents or locals. They stress, through their publically available and internal
operational documents, that the source of, and desire for, the policing of beats is
found in the community. In this sense, policing is officially imagined to be based on
a model of community engagement and response within the tradition of neighbourhood policing where community concerns are seen as a vital element in defining
and identifying the nature and presence of local problems. The NSW Police
intranet informs its officers, for example, that it is often difficult to identify
whether an area is a beat and that beats are often identified by members of the
public or members of certain occupations such as security guards and rangers who
then contact police to report the matter. As one officer explained, we are acting
on the genuine concerns of the community or, as another more prosaically put it,
we dont go looking for it.
When policing is understood to be a solution to community-identified problems,
it means that any selective enforcement on the grounds of sexual orientation can be
understood to be the outcome of community complaints rather than discriminatory
policing. However, it is important to recognise that public complaints to the police
about crime in this area pose several problems. The most significant is that, as the
Association of Chief Police Officers (ACPO) of England and Wales recognise, it is
likely that the majority of complaints from members of the public are still likely to be
about public sexual activity between men (Metropolitan Police, n.d.). ACPO recognise that complaints to the police cannot be seen to simply reflect a higher level of
male homosexual public sex in a community, but rather that disproportionate levels
of complaints are shaped by and produced because of the broader social and moral
relations of society. This is certainly a key concern of NSW Police. All of the officers
and other criminal justice practitioners I spoke to were aware that complaints, across
both urban and rural LACs, largely relate to homosexual conduct and rarely to
heterosexual sexual activities. In one LAC, which is known for its concentration of
sex shops and prostitution, the police station does receive complaints about heterosexual sexual conduct but these largely relate to paid sex work.
The nature of complaints about homosexual sexual activities in public received
by the police suggests that complainants, as in relation to prostitution (Hubbard,
1999; Sanders, 2009), are often motivated by wider moral concerns about sexuality.
At one Sydney city centre LAC, for instance, complaints are regularly received
from dog walkers who report having seen homosexual activity in public parks at
night. These complaints, however, rarely relate to visible sexual acts witnessed by
the complainants, but rather to the congregation of men in a particular area. As one
officer put it, complaints are frequently received about lots of parked cars with one
bloke in each car. Another frequent complaint to the police concerns littering in
areas where discarded condoms, underwear and other sexual paraphernalia are
found. Officers told me that such complaints are regularly received from parents
who report concerns about their children encountering such litter when in
parkland or public toilets. The police interpret these complaints as expressions of
anxiety about behaviours perceived to be threatening, rather than as reports of
visible sexual activities that could be legally classified as offensive or obscene. In
other words, police are aware that complaints often express a culturally normative
fear about male homosexuals as predatory sexual monsters or perverts (Warner,
2000) rather than reporting instances of crime. This contrasts sharply with
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police attention. This officer felt that the identification of such areas produces an
escalation in policing that is problematic: because officers know these areas have
received complaints, he argued, it can prejudice their policing and cloud their
judgment. This is because of a failure on the part of some police officers, he argued,
to distinguish between the nature of the complaints received and the actual nature
of the problem. Because complaints rarely relate to nudity or visible sexual activity,
but rather to signs that a beat exists, the moral offence that underpins the
complaint may not relate to any tangible crime. In short, officers raised the concern
that, while the community has become seen as the essential driver in all criminal
justice matters (Garland, 2001), expressions of problems by members of a community need thorough, ongoing and formally guided analysis by the police.
410
inevitable. On the other hand, officers also said that changing social attitudes
about the gay community have resulted in policing approaches that do not simply
criminalise beat users but also ensure their health and safety when they are
themselves victims of crime. These ideas of community of the general and gay
communities can be seen to create a number of tensions within policing that, in
turn, produce different (and contradictory) police styles. Such tensions illuminate
the more general problematic ideological notion of community at the heart of
community policing (Findlay, 2004). However, they also show how policing is a
crucial nexus at which the needs and expectations of multiple and different communities meet and compete.
When the policing of public sex environments is understood as a form of
community policing it can be imagined, as in relation to other types of crime, as a
way to facilitate the interaction of police and all community members to reduce
crime and the fear of crime through indigenous proactive programs (Oliver, 1998,
p. 51). However, it is important to recognise the highly selective way in which a
community and its problems become recognised and legitimated by the police. As
Brogden and Nijhar argue, through the use of discretion the police determine the
nature of the community, its problems and how such problems should be responded
to (Brogden & Nijhar, 2005, p. 65). Given the competition between what becomes
framed as the moral values of the gay and general communities, policing on the
ground is often an attempt to balance the demands of various interested community
groups and individuals. As street-level bureaucrats (Lipsky, 1980; Somerville, 2009),
the police therefore exert considerable influence in determining which moral values
become privileged.
As I argued above, it is common for academic commentators to argue that the
uses of police discretion are influenced by the morality of individual police officers
what Reiner (2000) calls the working personality of officers and by police
culture. While all those I spoke to said that police discretion does contribute to
higher levels of formal control of male homosexual sex, they did not account for
this as simply the result of the personalities of individual officers or of police
culture. Rather, they saw it as the outcome of the interaction between the individual values of officers and the broader cultural and moral relations of communities
in which they work. For example, one officer said that his use of discretion in policing beats had changed dramatically since joining NSW Police and accounted for
this as the result of two main changes, in policing and in society: first, he saw the
training that he undertook to become a GLLO as significant in altering his
approach and, second, he felt that his time spent policing in a community where
there was a high density of gay couples had a significant impact upon his practice.
This community was very accepting of gay couples, he told me, and there were
older couples living with their life partners, with established businesses ordinary
people who just happen to be gay. The impact of police training, as well as greater
familiarity with the gay community, resulted, he said, in him exercising greater
leniency when policing homosexual public sex.
The perceived impact of the gay community upon policing beats, which was
shared by all those I interviewed, is sociologically interesting for two main reasons:
first, aligning the gay community with beats is problematic because many men
who use beats will not identify as gay; and, second, there is an implicit, normative,
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but empirically problematic, assumption that the gay community is more tolerant
of public sex than the general community. Nevertheless, all of the criminal justice
personnel I interviewed recognised broad change in the use of police discretion,
resulting in a softer approach to policing beats, to be the outcome of changes in
community values and a significant factor in this change was seen to be the greater
visibility and presence of the gay community.
Despite this change, those I interviewed saw competition between different
community norms and values as central to policing in this area. One officer, for
example, contrasted his experience of policing in Sydney with policing in a rural
community where there were no visible gay groups and where 90% of the gay
community is underground. This LAC, he told me, comprised an old fashioned,
old world Australian homophobic community. He contrasted these two locations
to make a point about the important symbolic role of policing in respect to its
community function: you have to be seen to be doing the job in relation to the
law but also in relation to community opinion. This officer found working in a
homophobic community frustrating because of the community expectation that
policing should always uphold these values. All of the officers I spoke to expressed,
in differing ways, the sentiment that they felt caught between the expectations of
the general community and those of the gay community.
These conceptions of tensions between different community values can be seen
to have a significant impact upon police discretion and decision-making. One
officer, for example, contrasted the once routine and standard practice of visiting
male public toilets to detect men engaged in sexual activity with the contemporary
NSW Police policy that such practice should only be in response to public
complaints. He described how the once standard surveillance practice engaged by
police officers of looking under cubicle doors to count pairs of feet in order to
determine whether there was more than one person in each cubicle was no
longer common in police work. When I asked him if officers still engaged in that
practice he said youre damned if you do, and damned if you dont. He went on to
explain that, even when a complaint about offensive behaviour necessitated a duty
to investigate, if he attended a scene and found no sexual acts being committed
openly in public then he felt there was no significant problem that demanded
further investigation. But he added that he felt that the decision to not investigate
further (by not looking under cubicle doors, or forcibly opening them) would not
meet the expectation of, or gain approval from, most members of the general
public. Another officer described how, following several complaints about litter, a
high number of parked cars and the destruction of the vegetation at a local beat, she
organised a risk assessment of all the local parks to determine the status of lighting
and other aspects of the facilities. She was subsequently accused, she says, of harassing the gay community and asked how do you not know it was kids who destroyed
the vegetation, or left condoms? In line with NSW force policy, she also engaged in
discussions with beat users as a method of discouraging the types of activities being
complained about and was, she says, accused by others of encouraging gay sex and
sitting in a police car giving out condoms. You cant win, she said.
The views expressed by officers suggest that policing in this area is often
imagined as a negotiation of different moral values within particular communities.
Officers feel they cant win, or that they are damned if they do, and damned if
412
they dont, because they recognise their role in adjudicating a competition between
different moral values in the communities they police. As a result, officers engage in
decision-making in relation to these competing values and the discretion they
exercise must be seen as a vital element in determining the landscape of this
ongoing moral contest. While the uses of discretion in policing cannot be seen as
wholly determined by individual officers (Waddington, 1999), officers do have
significant space in which to make decisions. Such space, best described by
Dworkins (1977) doughnut metaphor, comprises the freedom for officers to make
decisions within the surrounding legal, organisational and cultural constraints in
which policing operates. What is significant for this area of policing is that, because
the offences in question are constructed through law that encourages a moral interpretation of behaviours (as offensive or obscene), this space affords the strong
use of discretion. In other words, the law actively requires criminal justice practitioners to engage in moral arbitration around certain activities and this, inevitably,
involves police officers making moral judgments. In the next section, I suggest that
the moral decision-making of individual officers can best be understood as the
product of a moral habitus that is itself shaped by the heteronormative morality of
contemporary society.
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PAUL JOHNSON
ideas, about what a reasonable person would and would not do, often reflect heteronormative understandings of sex, sexuality and sexual orientation. When such
understandings are the basis on which police officers use their discretion to transform the abstract legal moralism of sections 4 and 5 into operational practice, policing attracts the complaint that it intersects with the normalization of sexuality
(Walby, 2009, p. 377).
However, police officers are not the passive instruments of heteronormative
morality but agents who are actively engaged in an ongoing moral evaluation,
interpretation and classification of different behaviours. If, through their interpretation and enforcement of the law, police officers do reproduce the heteronormative
morality of the general community then this must not be seen as inevitable or
automatic, but rather as an active accomplishment of police work. Public morality
should therefore be seen as a dynamic resource that is used by police officers to
reach judgments about the behaviours they police. Police discretion, in this sense,
should be seen as the outcome of individual moral decisions made in relation to
socially dominant ideas about particular types of conduct.
A way of understanding discretion in this area as the product of both social
norms and individual actions is to see it as the outcome of habitus. Habitus,
Bourdieu and Wacquant argue, is a structuring and structured structure that
engages in practices and in thoughts practical schemata of perception issued out of
the embodiment [] of social structures (1992, p. 139). In other words, habitus is
our embodiment of social relations and our expression of them through thoughts
and actions. As Bourdieu and Wacquant argue:
The notion of habitus accounts for the fact that social agents are neither particles of
matter determined by external causes, nor little monads guided solely by internal
reasons, executing a sort of perfectly rational internal programme of action. Social
agents are the product of history, of the history of the whole social field and of the
accumulated experience of a path within the specific subfield [] to put it differently,
social agents will actively determine, on the basis of these socially and historically
constituted categories of perception and appreciation, the situation that determines
them. One can even say that social agents are determined only to the extent that they
determine themselves. But the categories of perception and appreciation which provide
the principle of this (self-) determination are themselves largely determined by the
social and economic conditions of their constitution. (1992, p. 136)
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than society at large. They viewed this as a positive development, and argued that
it showed awareness in the service that ordinary social perception about beats was
a hindrance to good policing in this area. Those I spoke to felt that it would be
beneficial to include beat training as a part of standard constable training because,
as one officer put it, the communities that new officers come from often shape
their perception in ways that are in contradiction to official NSW Police policy.
Many police officers come from closed communities, she told me, and they need to
be given the tools to police professionally behaviours that they have not encountered before. The key aspect of beat training is, she explained, to convey to officers
the idea that you might be shocked by what you encounter at beats but the activity
in question should elicit no greater response to other [heterosexual] activities. In
other words, training is an attempt to address the ordinary subjective feelings that
result from an embodiment of the values of these closed communities.
As part of the training, officers are asked to reflect on the nature of both heterosexual and homosexual sex in public places and to think about the similarities and
differences between them. They are, as the superintendent in charge of the training
put it, reminded that men at beats are discrete and not exhibitionists [and] are not
there to indulge in any fetish. To make this point, she asks officers to think about
beats and lovers lanes in order to think through the similarities between
homosexual and heterosexual sexual activities in public places. In doing so, the
training attempts to address perceptions about sexual conduct and reshape understanding about them. To explain why this is important, this superintendent
describes a recent beats training day she organised in which officers discussed a
complaint, made by a member of the public to a LAC, about the presence of a dead
goat surrounded by some used condoms at a known beat: some of the officers were
saying I dont know what goes on up there and I was saying well its probably the
Freemasons because they do that sort of thing dont they. The Freemason remark,
she told me, was a jokey response to what she sees as a serious issues in terms of both
the attitudes of the police and the public: it shows us just how far we have to go as
a society because people really do think men at beats are having sex with animals.
This example serves to highlight the way in which NSW Police are attempting
to address the perceptions and understandings of male homosexual public sex
among officers. The training is not, as one officer put it, designed to change
peoples mind, but to encourage officers to reflect on the nature of the conduct and
to question how they view it why, for instance, they may feel disgusted by it. As
such, the training can be seen as an attempt to problematise heteronormative social
relations and the individual perceptions that depart from them. For those officers
that I spoke to in rural LACs, this was regarded as particularly desirable. One officer
felt that younger, inexperienced constables from rural communities should have
access to this training. Because these constables often come from the communities
in which they police, he told me, they grasp the communitys values but, because
these can be narrow minded, it is not easy for them to gauge if the community is
wrong. He argued that policing needs to negotiate multiple sets of values the
values of the local community, of society, and of the police service and that it is
important to be able to see outside of small community norms. A key aim of beat
training in NSW Police is to facilitate this broader vision: it aims to render the
habitus of individual officers a fish out of water (as Bourdieu often describes it) in
416
order to make strange those perceptions that, because they are shaped by the social
relations in which they are situated, so often feel normal.
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PAUL JOHNSON
ated opinions of one man some of the operational officers I spoke to did recognise them as legitimate. One officer said that the practice of flushing out did
happen with, for example, officers driving into a park with their lights off and then
shining them, on full-beam, on those who would otherwise have remained unseen.
On such occasions, officers told me, beat users often run and are then pursued by
officers who, apprehending them, question and charge them.
However, those I interviewed did not view the use of such tactics when policing beats as either barbaric or unlawful. Rather, as the superintendent tasked with
running beats training argued, such practices are the inevitable outcome of policing in this area. Police officers patrol parks with their torches off, she told me, and
when they hear a noise they put their torches on: they see people, people run, and
the police chase. Police also use their car headlights to blind suspects but this, she
argued, is a general policing tactic and not one confined to policing men at beats.
And, yes, she said, we crawl around in the dark looking for people, thats what
police officers do. While individual beat users have the right to be treated professionally and not to be called filthy faggots, she said, they do not have the right
not to be policed.
For this officer, and for the others I spoke to, there was a fundamental agreement
about the right to police public sex environments and for police officers to engage
investigative powers. What police officers viewed as bad policing, therefore, was
not the use of police powers to patrol, investigate and charge those engaged in
public sex, nor the more frequent use of these powers in relation to homosexual sex.
Rather, bad policing was seen to result from the use of section 4 and 5 to pursue a
homophobic agenda that is, a form of policing that is underpinned by individual officers own moral intolerance of homosexual acts in public. Set against a
historical background of homophobic policing in NSW (and exacerbated by what
officers felt were old fashioned, patriarchal, macho and masculine values
embedded in the police force) good practice was seen to reside in respect for
sexual minorities. A common view of policing in this area, therefore, was not that
homosexual conduct should be policed less but that it should be policed professionally. In other words, that while policing must be responsive to the moral
standards and concerns of most people in the community, police officers must also
deal with homosexual activities in a measured, balanced and respectful way.
Nevertheless, for two of the officers I interviewed, training officers to be professional, by asking them to be courteous and polite, was important but inadequate
because it failed to address the fundamental cultural distinctions underpinning the
policing of different types of public sex. To illustrate this point, one officer told me
about an e-mail that was recently circulated to all police stations in NSW by a
senior constable. The e-mail contained a high-quality image, taken from CCTV
footage, of a man at a beat and was accompanied by the statement wanted for
homosexual sex. Because there had been no complaints from members of the
public, and the suspect was not being investigated for any other offence, this officer
viewed this as an example of how male homosexual sex in public is regarded by
some officers as a serious offence worth pursuing. This officer said that such policing
was common, with intels (intelligence reports) regularly produced about men at
beats that contain statements such as this person was seen at a homosexual beat.
For this officer, policing practices that target beat users continue because of a view
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among some officers that such activity is fundamentally morally offensive and
obscene. In other words, changing the style of police practice and holding officers
to a standard of courteousness and politeness does not in itself alter the underlying
moral habitus of officers and challenge their tendency to respond to male homosexual activities with intolerance, indignation and disgust.
Conclusion
The question of whether police practice in this area is motivated by homophobia is
obviously an important one. Recognising that homophobia has certainly played a
role in the past is the basis on which NSW Police have responded with specific
training and issued new guidelines in relation to the policing of beats. Training
aimed at addressing the perceptions of officers has been an attempt to reorientate
policing practices in respect of male homosexual acts in public. Yet, despite the
importance of changing the style of policing in this area, this alone does not
address the differential and discriminatory use of law in this area. It does not, for
instance, address the central fact recognised by all those I spoke to that, in essence,
policing responds to heterosexual and homosexual behaviours in public in fundamentally different ways. This happens not simply because of, as one officer put it,
the prejudice of lone guns operating on the margins of policing, but because of
dominant ideas about homosexual sexual activity and those who engage in it. It is
these ideas that ultimately mean police officers still crawl around at beats, shining
their torches at men and flushing them out, while heterosexual sex hardly registers
a concern.
Discussions about homophobia in law enforcement tend towards emphasising
problems in enforcement rather than law. Enforcement is an important element
of the legal regulation of public sex and, as I have argued, NSW Police have recognised that police officers interpretation of the law often produces policing styles
now regarded as officially antithetical. However, the disproportionate focus in policing on male homosexual conduct is significantly influenced by the legal environment in which policing operates. The law in this area offers a wide space for moral
decision-making and affords police officers a strong degree of discretion. Sections 4
and 5 require police officers to be moral arbiters and demand enforcement in
relation to the community standards of reasonable people. Recognising that the
standards of ordinary (heterosexual) people often produce significant disadvantages for sexual minorities, NSW Police training is an attempt to ensure officers
approach moral arbitration in a professional way. Beats training is significant in
recognising, and addressing, the way in which the ordinary perceptions of police
officers influence the use of discretion in ways that may discriminate against
homosexual men. In addressing these subjective perceptions, NSW Police can be
seen to have confronted the heteronormative habitus of their officers.
Yet, because heteronormativity is not specific to police habitus (Chan, 1996),
but characterises the cultural relations of contemporary Australian society more
generally, it is important to recognise that the use of the law to disproportionately
characterise male homosexual conduct as offensive or obscene does not result
from a problem in policing. While police culture plays an important role in influencing officers uses of discretion, and specialist training attempts to direct discre-
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PAUL JOHNSON
tion in particular ways, the problem of discretion lies in the legislative framework
that produces it. Sections 4 and 5 demand a form of enforcement founded on the
moral judgments of police officers moral judgments that are required to reflect
the wider moral values of society. This legal framework exemplifies Devlins (1965)
view that the law should embody the moral principles of ordinary people and that
the test of this morality should be the subjective reaction of those ordinary people
to certain forms of conduct. As proxy ordinary people, police officers are the
barometers through which certain forms of sexual conduct are measured in relation
to the standards of the communities they police. If male homosexual sex, whether
in public or in private, often offends the majority of (heterosexual) people in
society (Johnson, 2005) police officers cannot be blamed if they reiterate this
heteronormative sentiment. To avoid discriminatory policing, therefore, what is
needed is law that less easily allows these moral sensibilities to be the basis on
which police practice is based; in other words, law that removes the need for police
officers to make moral judgments about what reasonable people find offensive
and obscene.
Endnotes
1
I use the term heteronormativity throughout this article to mean, as Berlant and Warner
argue, the institutions, structures of understanding, and practical orientations that make
heterosexuality seem not only coherent [] but also privileged (1998, p. 548). The concept of
heteronormativity is useful for describing the ways in which heterosexuality is commonly
regarded in social life as normal or natural and, because of this, achieves what Smart calls its
effortless superiority (1996, p. 173). Berlant and Warner (1998) argue that heteronormativity
comprises less a body of norms that can be located in particular practices, processes or
doctrines, and more a sense of rightness that characterises a pervasive approach to understanding heterosexuality in contemporary societies. The research presented in this article aims
to show how heteronormativity is expressed through particular practices, processes and
doctrines and the effects that this produces.
In fact, NSW Guidelines for the Effective Policing of Beats (NSW Police, 2008) explicitly state
that two men kissing in a car at a beat does not constitute a criminal offence.
Acknowledgments
I am grateful to the editor and the anonymous referees who provided both encouraging and critical comments on this article. This research was supported by a Visiting
Scholars grant from the Sydney Institute of Criminology, University of Sydney, and
I am very grateful to a number of staff in the Institute: Mark Findlay, Murray Lee,
Arlie Loughnan, Julie Stubbs and, especially, Gail Mason. I am indebted to Robert
Vanderbeck for reading and commenting on drafts of the manuscript. My thanks to
New South Wales Police Force, the Beats Working Group, and those other professionals that I spoke to in New South Wales.
Disclaimer
The interpretation presented here is that of the author and does not represent the
official view of New South Wales Police Force or the Beats Working Group.
420
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