Gay Sex Prosecuted Worldwide
Planet Out,
December 13, 2000
By Katherine Bell
SUMMARY: Sodomy laws around the world pose a threat to lesbian and gay rights in
more ways than one, but in many places they’re beginning to crumble as sex and
privacy gain currency.
Is what you do in bed (or, on special occasions, elsewhere) a crime? Sex between men is
a criminal offense in many parts of Africa, Asia, the Caribbean, and the Middle East, as
well as in 15 of the United States. Roughly half of the countries that outlaw sex between
men also specifically prohibit sex between women. In the U.S., 12 states ban sodomy
(usually defined as consensual anal or oral sex) among heterosexuals as well as
homosexuals, while three restrict the definition to men. In November, Virginia became the
latest state to uphold its sodomy law, as a three-judge panel of the Virginia Court of
Appeals unanimously rejected a challenge to the state’s 207-year-old "crimes
against nature" law, which makes oral or anal intercourse between consenting adults a
felony punishable by up to five years’ imprisonment, regardless of whether the acts
occur in public or private and the gender of the parties involved (see PlanetOut News of
November 27). But most sodomy laws, in the U.S. and elsewhere, are invoked
disproportionately against gay men and lesbians.
Unequal age of consent laws are another way in which some governments restrict
homosexual sex more stringently than heterosexual sex. Arguments over the age of consent
turn ugly easily, pitting young people’s rights to privacy and sexual expression
against the public responsibility to protect youth from sexual exploitation by adults with
more power. But regardless of the age at which governments grant sexual responsibility to
their citizens, gay rights activists argue that for men and women, heterosexuals and
homosexuals, the age of reckoning should be the same. Of course, governments police sexual
behavior in more specific contexts as well — by regulating, among other things,
pornographic material, conjugal visits in prison, and sex work — and in many cases
gay men and lesbians are hardest hit by these laws.
Enforcement When rules against homosexual sex are enforced, punishment generally
consists of either a fine or imprisonment. But in several countries ruled under Sharia, or
Islamic law, many sexual offenses, including same-sex acts, draw the death penalty.
According to the International Lesbian and Gay Association, three countries —
Afghanistan, Iran, and Saudi Arabia — are known to have executed men for homosexual
acts in the past decade. In Afghanistan in 1998, at least five men convicted of sodomy
were placed next to stone or mud walls which were then bulldozed onto them, burying them
alive. [Ed. note: According to the Koran the subjects of such punishment are dug up after
30 minutes and are set free if they are still alive; several men did survive to be
reprieved.]
Even if anti-gay laws are never enforced, the fact of their existence interferes with
the basic rights of gay men and lesbians. According to Sydney Levy, program and
communications director of the International Gay and Lesbian Human Rights Commission
(IGLHRC), "If the law is on the books, you can live with only a certain level of
comfort." Whether or not they are enforced, the laws function as deterrents, sending
a powerful message about what is permitted in a society and what is not. They can often
result in police brutality and extortion. Laws forbidding sex between men complicate
efforts to provide health services and safer sex information in countries where AIDS
remains a devastating threat to public health. Sodomy laws also make it difficult for gay
and lesbian groups (political and otherwise) to organize. In countries where homosexual
sex is illegal, gay organizations could be considered criminal associations. In Singapore,
for example, all societies must register with the government by submitting a list of the
full names of at least ten members - a dangerous proposition when the punishment for gay
sex is at least six months in prison. People Like Us, a gay/lesbian/bisexual/transgender
(GLBT) organization, was formed in 1993, but it took until 1996 to find ten people willing
to sign the application form. The application was denied, and, threatened with three-year
prison terms, the group disbanded. [Ed. note: People Like Us is now active again and
recently published a survey documenting changing attitudes in Singapore.]
In the U.S., sodomy laws are almost never enforced, making it somewhat difficult to
challenge them in court. But unenforced sodomy laws are still marshaled as arguments
opposing gay rights initiatives. In Texas, Florida, and Georgia, employers have used
sodomy statutes to justify employment discrimination against gay job applicants. In
Virginia and North Carolina, courts have cited sodomy laws when denying child custody and
visitation rights to gay or lesbian parents.
The Problem of Language Vague language plagues anti-gay laws. Because many
countries’ statutes rely on nonspecific, moralistic language that doesn’t even
refer either to gender or to sex, enforcement is left largely to the discretion of the
police, and political concerns often outweigh civil rights. Gay sex has been outlawed
under the imprecise banners of "hooliganism" in China and the former Soviet
Union, "antisocial behavior" under the Nazis, "gross indecency" in
Britain, and "lewd behavior" and "crimes against nature" in the U.S.
Definitions of private and public space also change as cultures and economies shift. This
loose language inevitably results in exploitation. When they are enforced, sodomy laws,
public sex ordinances, and other sex-related regulations affect disproportionate numbers
of GLBT people. In many countries, even kissing in public is illegal for same-sex couples,
and behavior that would be considered simply flirtatious among heterosexuals is punishable
as solicitation.
Decriminalization On November 30, the 100th anniversary of the death of Oscar Wilde,
famously tried and imprisoned for "gross indecency," Britain’s Speaker of
the House of Commons announced that the government would override the dissenting House of
Lords and send a bill to equalize the age of consent to the Queen for her royal assent
(see PlanetOut News of November 30). After more than two years of intense debate in both
Houses of Parliament, sixteen-year-old boys in England, Scotland and Wales will now be
able, legally, to have sex with other boys. Underage boys who have sex with older men will
also be — as girls already are — protected under the law, rather than at risk of
conviction as they were in the past.
The decision came only four months after the European Court of Human Rights found
Britain’s gross indecency law (which outlaws group sex in private, and defines public
space so widely that even a locked hotel room could count) in violation of the European
Convention of Human Rights’ privacy and nondiscrimination clauses (see PlanetOut News
of July 31). The British government has not yet formally responded to the Court’s
decision, but it has recently conducted a comprehensive review of all of its sexual
offenses laws. Debbie Gupta, director of policy and public affairs at Stonewall, said the
lobby group was involved in the review and was satisfied with its conclusions. She expects
to see a revised Sexual Offences law after the General Election, anticipated in the
Spring.
Meanwhile, across the globe, GLBT activists wait for the right opportunity to challenge
anti-gay laws, focusing on crucial penal code reforms or constitutional reviews. Often,
international pressure gives activists and relatively gay-friendly administrations the
opening they need. In 1994, the Human Rights Committee of the United Nations declared that
banning sex between men and between women was a violation of the basic rights to privacy
and nondiscrimination. Tasmania was the last Australian state with sodomy laws remaining
on the books. Although he had not been convicted, Nicholas Toonen, a gay man, took a case
to the UN, claiming that Tasmania’s sodomy law violated his civil rights. The UN
decided in his favor, and Tasmania subsequently decriminalized gay sex.
A year later, the UN Committee called on the U.S. states that still have sodomy laws to
overturn them, pointing to a "serious infringement of private life in some
states." "The states can’t disregard that," said Levy, "but we
don’t have a tradition of respecting [international law]. We just think about the
constitution." The UN’s admonishment usually appears in the footnotes when court
cases address state sodomy laws, but it seems to make little difference. In June, Texas
became the most recent state to overturn its gay-specific sodomy law, although the
decision could still be appealed. [Ed. note: In September attorneys in that case were
advised that the ruling of a three-judge panel would be reviewed by the full 14th Circuit
Court of Appeals.]
Like the UN, the Council of Europe and its economic cousin, the European Union, push
member countries to toe the gay-rights line. Under pressure from the Council of Europe,
Romania finally revised its notoriously severe anti-gay law (see PlanetOut News of
September 6). But in reality, the new language gave gay Romanians little additional
protection. Sex between men is now forbidden when "committed in public, or causing
public scandal." A 1938 law defines a public scandal as "an act which becomes
known to more than two persons who disapprove of it," leaving gay and lesbian people
vulnerable to police brutality. As Levy points out, "the police tell two people and
ask, ‘Are you scandalized?’ and they say yes, and there you have it." And
in Romania, where economic conditions mean that large extended families often share tiny
apartments, privacy is hard to come by, and public space is loosely defined.
Colonialism still affects gay rights legislation in certain corners of the world. In
November, the United Kingdom announced its intent to force its remaining Caribbean
territories to abolish their sodomy laws, ironically inherited from England (see PlanetOut
News of November 17). The island nations affected — Anguilla, the British Virgin
Islands, the Cayman Islands, Montserrat, and the Turks and Caicos Islands — quickly
voiced their dissent, citing their citizens’ commitment to the tenets of
Christianity. Britain is caught in the middle of the debate, as its international treaty
obligations, including the European Convention on Human rights, apply equally to its
territories. While several of the islands have rumbled about independence, they now seem
resigned to the inevitability of the repeal. British Virgin Islands lawmaker Orlando Smith
told the Associated Press, "There is nothing we can do about it." In contrast,
in Latin America, where countries do not follow the British legal tradition, very few
countries have sodomy laws. Nicaragua put sodomy laws into place only when the contras
took over, and Puerto Rico’s laws arrived with U.S. colonization.
Watch This Space Efforts to decriminalize homosexual are underway across the globe, but
certain battles loom in the foreground. In India there is an ongoing debate over Paragraph
377 of the country’s legal code, which forbids "carnal intercourse against the
order of nature with any man, woman or animal." Romania continues to be a crucial and
bitter battleground for international human rights activists. Nothing is certain yet in
the British island territories in the Caribbean. And in almost a third of the United
States, your right to privacy — and pleasure — is still at stake.
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