South Africa Sodomy Law Stricken
October 12, 1998
As is the case with sodomy laws around the world, the decision of South Africas
Constitutional Court to decriminalize sex between men has far-reaching implications for
the civil rights of gays and lesbians.
In its first ruling ever on a gay or lesbian issue, South Africas Constitutional
Court put teeth in the nations pioneering guarantee of freedom from sexual
orientation discrimination, as it struck down laws against sex between men. The decision
said that, "Just as apartheid legislation rendered the lives of couples of different
racial groups perpetually at risk, the sodomy offense [built] insecurity and vulnerability
into the daily lives of gay men." Judge Albie Sachs wrote that the ruling should be
viewed "as part of a growing acceptance of difference in an increasingly open and
pluralistic South Africa."
National Coalition for Gay and Lesbian Equality (NCGLE) director Zackie Achmat said,
"The court has said that lesbians and gay men ... have a right to equality and
dignity and privacy." Previously, sodomy convictions could mean seven years
imprisonment, and even casual touching or dancing in the presence of a third party could
be grounds for prosecution. The apartheid-era statutes even exempted police from some
standard restraints and authorized private citizens to act to apprehend violators in a
manner shared by few other offenses, a situation attorney Gilbert Marcus had told the
court in August reduced gay men to the status of "unapprehended felons." Those
men convicted on sodomy charges since 1994 can now file to have their records cleared and
receive monetary reparations.
But the ruling could have even larger consequences; NCGLE, which pursued the case,
believes the decision clears the way to end other discriminatory laws, so that equality
may be achieved in areas such as adoption and marriage.
High courts in Witwatersrand and Johannesburg had previously made similar rulings, but
their impact did not extend outside their jurisdictions. The sodomy statute per se did not
apply to lesbians, although by extension the social stigma did. Most prosecutors had not
been bringing sodomy cases to trial since the fall of apartheid.
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