Last edited: February 13, 2005

South Africa Sodomy Law Stricken

PlanetOut, October 12, 1998

As is the case with sodomy laws around the world, the decision of South Africa’s 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 Africa’s Constitutional Court put teeth in the nation’s 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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