18 September 2006

Peter Davis - imputations of gayness

> SST: Smear against PM's husband 'despicable' > SST: PM hits out at 'smutty rumours' > DomPost: Furious Clark defends husband > NZHerald: Bitter Clark savages rumours There's been some suggestion that litigation may follow the recent allegations being made about Peter Davis being gay. However, in my view, allegations of gayness per se are not and should not be defamatory. In today's society it cannot be said that "right-thinking" people would think that an allegation of gayness tarnishes a person's reputation. My article on this was launched last week: > Dean R Knight,"'I’m Not Gay – Not That There’s Anything Wrong With That!': Are Unwanted Imputations of Gayness Defamatory?" (2006) 37 VUWLR 249 It's likely though that the courts may treat allegations of gayness "plus" as being defamatory, that is allegations of gayness (which are not defamatory) tied with allegations of infidelity, untruthness, or a "sham" marriage etc (which still might be). While I have some concerns about this approach which I touch on in my article (ie these other allegations are often used just to "reinvent" allegations of gayness), this alternative may still be available to Davis. UPDATE (27/9/2006): Steven Price discusses this issue with Kathryn Ryan on National Radio, including some of the points addressed in my article: > NatRadio: Law


Nigel Kearney said...

Great timing with the article. I wonder if the relevant people are reading it at the moment.

Anonymous said...

Just reading your VUWLR article. When the suggestions of litigation came out I couldn't see how being called gay could possibly be defamatory anymore - for the same reasons outlined in your article (mine being the less academic version obviously ;-)

James said...

Brilliant article.

Do you feel as if the position of the courts in CL jurisdictions has changed at all in the past 13 months since your published article?

I cannot find any cases that show any sort of shift in the courts attitudes or positions on whether an imputation of homosexuality remains defamatory since then.

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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