Last edited: February 14, 2005

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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