Published online by Cambridge University Press: 16 April 2015
The late 19th century saw the spread of anti-homosexual criminal laws to British colonies. The iconic example was the Indian Penal Code of 1860, with its prohibition of ‘carnal intercourse against the order of nature,’ a rewriting of the anti-Catholic ‘buggery’ law of 1534. The language of 377 travelled around the British colonial world. France and certain other parts of Europe had decriminalized homosexual acts a century earlier, so the colonial powers of Europe spoke with different voices. Modern decriminalization is largely the product of the human rights era - sixty years since the Charter of the United Nations and the Universal Declaration of Human Rights.
1 Human Rights Watch, “This Alien Legacy: The Origins of “Sodomy” Laws in British Colonialism” (New York, 2008) http://www.hrw.org/en/reports/2008/12/17/alien-legacy-0, [HRW]Google Scholar; Baudh, Sumit, “Human Rights and the Criminalisation of Consensual Same-Sex Sexual Acts in the Commonwealth, South and Southeast Asia”, (New Delhi: South and Southeast Asia Resource Centre on Sexuality, 2008), www.tarshi.net/downloads/Working_%20Paper_Sbaudh_16M08.pdf Google Scholar.
2 Ottosson, Daniel, “State-Sponsored Homophobia: A World Survey of Laws Prohibiting Same Sex Activity Between Consenting Adults” (2008) ILGA, International Lesbian and Gay Association, www.ilga.org/statehomophobia/ILGA_State_Sponsored_Homophobia_2008.pdf Google Scholar.
3 France did impose anti-homosexual criminal laws on some French colonies, and versions of these survive in countries such as Benin, Cameroon, and Senegal. HRW, supra, note 1 at 4.
4 JrEskridge, William N., Gaylaw – Challenging the Apartheid of the Closet, (Harvard University Press, 1999), 157 gives the date as 1533 [Eskridge Gaylaw]Google Scholar; JrEskridge, William N., Dishonorable Passions: Sodomy Laws in America 1861-2003 (Viking, 2008) at 16 [Eskridge Passions]Google Scholar. However, Gorton is convinced that it was 1534. Gorton, Don, “Timing of Henry VlII's Sodomy Law Matters” The Gay and Lesbian Review (Jan-Feb 2004) 6 [Gorton]Google Scholar.
5 Compact Oxford English Dictionary, 2d ed., s.v. “buggery”.
6 Melminiak, Daniel, What the Bible Really Says about Homosexuality, Sacramento: Alamo Square Press, 1994) at 46-7Google Scholar. On page 48, the author explains that ‘abomination’ referred to “any violation of purity rules that governed Israelite society and kept the Israelites different from the other peoples.” This suggests that the prohibition of male-male sex in Leviticus was not linked to the issue of procreation but served to strengthen the persuasiveness of the ritual differentiation strategy. If the alleged Canaanite practices were true, they may have confined homosexual acts to special, religiously sanctioned occasions.
7 Crompton, Louis, Homosexuality and Civilization, (Cambridge: Harvard University Press, 2003), at 43-4 [Crompton]Google Scholar.
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10 Ezekiel 16:49-50 is explicit on the pride and greed of the people of Sodom.
11 Crompton, supra, note 7 at 137.
12 Jordan, supra, note 9 at 1.
13 Louis Crompton, in contrast, sees Paul's statements as highly influential: Crompton, 2003, 113-4. William Eskridge takes language from Paul for the title of his study Dishonorable Passions, supra, note 4.
14 Crompton, supra, note 7 at 34 and chapter 5.
15 Crompton, supra, note 7 at 142-147.
16 Canon law applied in Denmark until 1526. A prohibition of male-male sex was not, at that point, part of secular law, and a prohibition was not specifically enacted until 1683, although prosecutions occurred before that date. Rosen, Wilhelm von, “Sodomy in Early Modern Denmark”, in Gerard, Kent & Hekma, Gert, ed., The Pursuit of Sodomy (Haworth, 1988,) 177 [von Rosen] [Gerard and Hekma]Google Scholar. In Sweden, male-male sexual acts are mentioned in secular law for the first time in 1608. The National Law Code of 1734 contained no sanction, apparently a deliberate decision to avoid mentioning such activities to avoid publicizing their possibility, a recurring theme in European histories of the subject. Nevertheless, prosecutions occurred. Liliequist, Jonas, “State Policy, Popular Discourse, and the Silence on Homosexual Acts in Early Modern Sweden” in Lofstrom, Jan, ed. Scandinavian Homosexualities, (Haworth, 1998) 15 Google Scholar. An explicit prohibition was enacted in Sweden (perhaps in 1866) and modern decriminalization occurred in 1944. On not naming the sin or offence, see Jordan, supra, note 9 at 133, 146 and 147; Puff, Helmut, Sodomy in Reformation Germany and Switzerland 1400-1600, (Chicago: University of Chicago Press, 2003) 54 [Puff]Google Scholar.
17 Puff, supra, note 16 at 29.
18 Gorton, supra, note 4 at 6.
19 Quoted in Mills, Robert, “Male-Male Love and Sex in the Middle Ages” in Cook, Matt, et al, A Gay History of Britain (Westport: Greenwood Press, 2007) 1 at 14 [Cook]Google Scholar. Mills cautions that the elements that constituted ‘sodomy’ in the medieval period were notoriously vague.
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21 Burg, B R, Boys at Sea: Sodomy, Indecency, and Courts Martial in Nelson's Navy, (Palgrave Macmillan, 2007) [Burg] at 28 CrossRefGoogle Scholar. The penalty was death. With slight alterations, the provision remained in force until 1866.
22 Blackstone's writings were very influential on United States law. Blackstone had taken the ecclesiastical law formulation of the offence and substituted “crime” for “sin”. See Gorton, Don, “The Origins of Anti-Sodomy Laws” The Harvard Gay and Lesbian Review (Winter 1998) 10 at 12 Google Scholar.
23 HRW, supra, note 1 at 15.
24 Eskridge Passions, supra, note 4 at 24-26, 157 and 328.
25 It is the title of a documentary produced in the United States in 2000. See Paragraph 175, Telling Pictures, produced in association with Home Box Office, Rob Epstein and Jeffrey Friedman, narrated by Rupert Everett.
26 Healey, Dan, Homosexual Desire in Revolutionary Russia, (Chicago: University of Chicago Press, 2001) at 80–81 [Healey]CrossRefGoogle Scholar.
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29 Wockner, Rex, “Early gay-rights writings found”, International News # 680, May 7, 2007, http://tobe.ca/index.php?mact=News,cntnt01,detail,0&cntnt01articleid=142&cntnt01origid=68&cntnt01returnid=68 Google Scholar. An indictment of the book by Thomas Cannon, entitled Ancient and Modern Pederasty Investigated and Exemplify'd, was found in a box of unclassified legal documents from 1750. The book itself has not survived, but the indictment reproduces many of its passages.
30 Skuy, supra, note 27 at 518.
32 For example, the buggery law was restated in the 1861 Offences against the Person Act 24 & 25 Vict. c.100.
33 H.G.Cocks, “Secrets, Crimes and Diseases” in Cook, supra, note 19 at 107, 114.
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41 Ottosson, supra, note 2.
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45 See Xiao-fei, Guo, “Was there a De-criminalization of Homosexualities in Chinese History?” (Paper presented at the International Conference on Sexuality in China, 2007), www.sexstudy.org Google Scholar.
46 Smith, Rupert, “That crucial day: The Labouchere amendment” Gay Times (September 2006) 21 Google Scholar.
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49 Eskridge Passions, supra, note 4 at 26.
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51 Eskridge Passions, supra, note 4 at 19. Sweden repealed the offence to avoid publicizing such activities, though prosecutions continued according to Liliequist, Jonas, “State Policy, Popular Discourse, and the Silence on Homosexual Acts in Early Modern Sweden”, in Lofstrom, Jan ed, Scandinavian Homosexualities: Essays on Gay and Lesbian Studies (Haworth: The Haworth Press, 1998) 15 Google Scholar.
52 Toonen v Australia, UN Human Rights Committee, March 31, 1994, CCPR/C/50/488/1992.
53 Quansah, E. K., “Same-sex relationships in Botswana: Current perspectives and future prospects” (2004) 4 African Human Rights Law Journal 201 Google Scholar. The law upheld by the Supreme Court of Zimbabwe in Banana v State, (2000) 8 Butterworth's Human Rights Cases, 345, was described as intentional sexual relations per anum between two human males.
54 Darwin, Charles lived from 1809 to 1882 and published The Origin of Species in 1859 Google Scholar. Marx, Karl lived from 1818 to 1893 and published volume one of Capital in 1867 Google ScholarPubMed. Freud, Sigmund lived from 1856 to 1939 and published The Interpretation of Dreams in 1900 Google Scholar. From 1856 to 1882, all three were alive. Freud, in his Introductory Lectures on Psychoanalysis, suggested that there had been three major intellectual challenges to the human view of its own uniqueness in creation: Copernicus (the earth is not the centre of the universe), Darwin (humans had evolved) and Freud (humans had unconscious drives). See Dean, Cornelia, “Science and the soul: Descartes loses force” International Herald Tribune (28 June 2007) 9 Google Scholar.
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56 It was the new bourgeousie that ran the British imperial project and they projected an ethos of middle class respectability, distinguishing themselves from the lower classes and what they saw as a decadent aristocracy: Mosse, George, Nationalism and Sexuality, Respectability and Abnormal Sexuality in Modern Europe (Howard Fertig, 1985) 9 Google Scholar. This view of the aristocracy as profligate libertines perhaps led to the rejection of homosexuality, seen as an elite vice. In contrast, in Siam and Japan, it was the aristocracy that handled the projects of modernization and the defense of the state against colonialism. Their attitudes towards sexual issues would not have been the same as those of the new British middle-class.
57 Eskridge Passions, supra, note 4 at 94, 95.
58 Indefinite detention, to be followed, possibly, by a lifetime parole, revocable at any time, was upheld by the Supreme Court of Canada in R v Klippert,  S.C.R. 822. Klippert's sexual activity had been with teen aged males, but the decision made no reference to the issue of age. It logically applied to any homosexual acts.
59 Randolph Trumbach, “Renaissance Sodomy, 1500-1700” in [Cook], supra, note 19 at 45, para 50. Prosecutions under the Laws of War were also slow to begin, starting in 1704 and 1706. Prosecutions were for sexual activity with teenage boys who worked on Royal Navy ships. See [Burg], supra, note 21 at Boys at Sea, Ch 2.
60 H.G.Cocks, “Secrets, Crimes and Diseases” in [Cook], supra, note 19 at 110 [Cocks Secrets].
62 Cocks Secrets, supra, note 60 at 109. See also Cocks Nameless, supra, note 47 at 7, 8, 17.
63 Cook, supra, note 19 at 11.
64 Eskridge Passions, supra, note 4 at 3, 66 and 86.
65 A study of Prussia indicated 44 charges between 1700 and 1730, including charges for bestiality. Nine individuals were executed for bestiality and three for sodomy. James Streakley, “Sodomy in Enlightenment Prussia” in Gerard and Hekma, supra, note 16 at 163, para 164. In the same edited volume, Wilhelm von Rosen refers to sodomy between men as “in practice a nonexistent crime in Denmark for more than two hundred years.” Von Rosen, supra, note 16 at 177.
66 Puff, supra, note 16 at 5.
67 Khanu v. Emperor, AIR 1925 Sind 286Google Scholar, Muhammad Ali v. The State,  All Pakistan Law Decisions, High Court of Dacca 252 Google Scholar, and Brother John Antony v. State  124 Criminal Law Journal 1352. See HRW, supra, note 1 at 19, 20, 21.
68 HRW, supra, note 1 at 28.
69 “Introduction” to Narrain, Arvind and Bhan, Gautam, eds. Because I Have a Voice: Queer Politics in India, (New Delhi: Yoda Press, 2005) 7, 8 Google Scholar.
70 Dudgeon v U.K. (1981) 4 E.H.R.R. 149 Google Scholar; Norris v Ireland (1991) 13 E.H.R.R. 183 Google Scholar; Modinos v Cyprus (1993) 16 E.H.R.R. 485 Google Scholar; Toonen v Australia (1994) CCPR/C/50/D/488/1992.
71 Eskridge Passions, supra, note 4 at 241, 242. Laws in some states had been broadened from anal intercourse to include oral sex. Bowers v Hardwick (1986) 478 U.S. 186 Google Scholar; Lawrence v Texas (2003) 539 U.S. 558 Google ScholarPubMed.
72 See Bhan, Gautam, “Queer Politics and Legal Reform in India”, in Narrain, Arvind, Bhan, Gautam, Because I Have a Voice (New Delhi: Yoda Press, 2005) 40 Google Scholar. Information on prosecutions in Singapore is provided later in this article, in a section on that country. Information on patterns in Malaysia comes from informal conversations with individuals connected with the PT Foundation in Kuala Lumpur, an organization that works on HIV-AIDS issues.
73 Significant reforms occurred in the period. In 1790, primogeniture inheritance rights were abolished. In 1791, equal rights were granted to Jews and equal inheritance rights established for sons and daughters. In 1792, men without property were enfranchised and divorce allowed for the first time. In 1794, slavery was abolished. See Hunt, Lynn, Inventing Human Rights (W. W. Norton and Co, 2007) at 28, 61, 62 Google Scholar. Sofer writes that it has been suggested that the French decriminalization “was a result of Jean-Francois-Regis de Cambaceres, the head of the drafting commission, loving males. In fact, it should be seen as springing from the principles of the French Revolution.” See Sofer, supra, note 40 at 133. See also Sibalis, Michael David, “The Regulation of Male Homosexuality in Revolutionary and Napoleonic France, 1780-1815” in Merrick, Jeffrey and Ragan, Bryant eds., Homosexuality in Modern France (Oxford: Oxford University Press, 1996 Google Scholar).
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75 Healey, supra, note 26.
76 John Adington Symonds met Ulrichs and included a discussion of his theories in his reformist writings in Britain. Through Symonds’ collaboration with Havelock Ellis on the book Sexual Inversion (1897), Ulrichs’ ideas entered the literature of homosexual defense in England. See Steakley, James, The Homosexual Emancipation Movement in Germany (New York: Arno Press, 1975) 23 [Steakley]Google Scholar.
77 Steakley, supra, note 76 at 92.
78 Michael, Jerome, Wechsler, Herbert, Criminal Law and its Administration, (The Foundation Press, 1940)Google Scholar.
79 Eskridge Passions, supra, note 4 at 121.
80 Eskridge Gaylaw, supra, note 4 at 159.
82 British Broadcasting Commission, On This Day: 4, September, 1957: “Homosexuality should not be a crime”, http://news.bbc.co.uk/onthisday/hi/dates/stories/september/4/newsid_3007000/3007686.stm Google ScholarPubMed.
83 The reform in the UK was important. It was not part of a reform package, as in Illinois in 1961 or the USSR in 1922. It did not have the elite backing of the ruling party or the Prime Minister in power, as in Canada in 1969. There was a public and parliamentary debate on the specific issue. The reform was a compromise, only applying in England and Wales and entrenching an unequal age of consent for the next three decades. Leo Abse, the Member of Parliament who moved the reform bill, said his reading of Freud convinced him that everyone was bisexual. But he was willing to portray homosexuals as a troubled minority in order to secure passage of the reform. In fact, he said, the bill was to protect everyone “from their own homophobia.” See Smith, Richard, “Against the Law” Gay Times (August 2007) 72 Google Scholar.
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90 (2000) 29 E.H.R.R. 548.
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96 Sometimes the lid is quite repressive. India in 2009 seems to have only one full-time gay bar (in New Delhi), though there are occasional gay parties at specific bars organized by Gay Bombay.
97 Eskridge Passions, supra, note 4 at 315.
98 Ascription refers to recognizing on-going same sex relationships on the basis that they are factually like on-going heterosexual relationships (either married or de facto). Registration is involved in the various systems established for ‘registered partnerships’, ‘civil unions’, or the French pacts of civil solidarity.
99 Eskridge Passions, supra, note 4 at 235.
100 Eskridge Passions, supra, note 4 at 241.
101 This idea is reflected in Mr. Justice Stevens’ dissent in Bowers v Hardwick and Mr. Justice Scalia's dissent in the later USSC decision in Romer v Evans (1996) 517 US 620. See Eskridge Passions, supra, note 4 at 266, 288.
102 Quoted in Eskridge Passions, supra, note 4 at 326.
103 The arguments in the case are canvassed in detail in Eskridge Passions, supra, note 4.
104 Foreign Affairs Minister Seng, Wong Kan, The Real World of Human Rights, 16 Vienna 1993, Singapore Government Press Release No: (20/JUN, 09-1/93/06/16),  Sing. J. L. S. 605Google Scholar. Some of this language was repeated by Singapore's Deputy Prime Minister S. Jayakumar in September, 2005, at the UN Summit. He repeated that most human rights were still essentially contested concepts.” But the penchant of some states to present their views as universal norms inevitably provokes resistance, unnecessarily politicizes the process and is ultimately unhelpful to the cause of human rights. Unless this deeper issue is squarely addressed, any changes will only be superficial.” Quoted in UFP, “U.N. assembly pressured over new human rights council” Japan Times (18 September 2005) 5 Google ScholarPubMed.
105 Tan, Sylvia, “Allow space for gays but gay sex ban to stay” fridae.com (24 October 2007), http://www.fridae.com/newsfeatures/article.php?articleid=2124&viewarticle=1 Google Scholar. AFP, “Singapore PM defends decision not to decriminalise gay sex” Bangkok Post (24 September 2007) 4 Google ScholarPubMed, quotes Prime Minister Lee at a student forum saying “I think the tone of the society should really be set by the heterosexuals, and that's the way many Singaporeans feel.”
106 Other advances have seen counter strategies in the United States. The enactment of local anti-discrimination laws that banned discrimination on the basis of sexual orientation led to (a) popular votes to repeal such laws and (b) state-level laws or state-level constitutional amendments prohibiting such laws. When the possibility of same-sex marriage became legally credible in the US, many states passed constitutional amendments to define marriage as heterosexual, and Congress passed the Defense of Marriage Act to bar the recognition of state-level marriages (or civil unions) in national laws. School desegregation decisions of the USSC had also led to local actions to preserve segregation through the use of private schools. Abortion, while a right in certain circumstances, was also countered by a lack of state funding for this medical service. So a “sodomy-revival movement”, as Eskridge puts it, after the decision in Lawrence v Texas, could have been expected, not simply an acceptance that the US SC had now settled the matter.
107 Eskridge Passions, supra, note 4 at 379.
108 Gay Marriage to End “Culture Wars”?, forwarded by Human Rights Watch, September 21, 2008, http://www.virtueonline.org/portal/modules/news/article.php?storyid=8627.
109 Povinelli, Elizabeth, Chauncey, George, “Thinking Sexuality Transnationally” (1999) 5 GLQ, A Journal of Lesbian and Gay Studies 439 at 443 Google Scholar. In 1951, the British spies Guy Burgess and Donald MacLean defected to the USSR having betrayed American secrets, illustrating concretely that homosexuals could be security risks.
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112 Cook, supra, note 19 at 168.
113 Cook, supra, note 19 at 168,169.
114 Cook, supra, note 19 at 169.
115 Cook, supra, note 19 at 170.
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118 Displayed text, part of The History of Gay Montreal, an exhibit held at the time of the Out Games, Montreal, August, 2006. Customers had been charged with being a ‘found-in’ in a house of prostitution.
119 Mahapatra, Dhananjay, “UN body slams Indian on rights of gays” The Times of India, 24 April 2008)Google Scholar. The account is at variance with what we know of the drafting of the Indian Penal Code, but there may have been a link. State regulated brothels for British army personnel were established in India to prevent soldiers picking up “special Oriental vices” and becoming “replicas of Sodom and Gomorrah.” See Bhaskaran, Suparna, “The Politics of Penetration” in Vanita, Ruth ed., Queering India: Same Sex Love and Eroticism in Indian Culture and Society (Routledge, 2002) 15 at 17 Google Scholar.
122 (1994) CCPR/C/50/D/488/1992.
125 International Gay and Lesbian Human Rights Commission, “Singapore: Religious homophobia, gay activism and repealing the sodomy law” (10 September 2007)Google Scholar. Interview with three Singaporeans by Grace Poore, http://www.iglhrc.org/cgi-bin/iowa/article/publications/reportsandpublications/465.html.
126 We have reports from the Straits Times newspaper and government figures on prosecutions. Mohan Gopalan has compiled a list of section 377A cases (the gross indecency provision), expanding an earlier list prepared by Lynette Chua. See Gopalan, Mohan, “A heftier list of s.377 cases” Yawning Bread (May 2007), http://www.yawningbread.org/guest_2007/guw-136.htm Google Scholar. Also see Au, Alex, “Why 377A is redundant” Yawning Bread (May 2007), http://www.yawningbread.org/arch_2007/yax-749.htm.Google Scholar In contrast, our information on India does not include trial level decisions. They are routinely not found in the law reports used by lawyers and judges.
127 “Singapore TV station fined S$15,000 for showing a “normal” gay family” fridae.com (25 April 2008), http://www.fridae.com/newsfeatures/article.php?articleid=2216&viewarticle=1 Google Scholar.
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129 The author has written an occasional column for fridae.com since 2005.
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137 Sunil Babu Pant v Nepal, December 21, 2008, Supreme Court of Nepal, Balram, Justices and Ojha, Pawan Kumar, Order Writ No 917 of 2064 (2007AD), http://www.sxpolitics.org/mambo452/index.php?option=com_content&task=view&id=198 Google Scholar.
139 Change has been slow, for (a) homosexuals are a relative small minority, (b) they are dispersed among the larger population, (c) they have no natural institutions of their own that could support a leadership (such as their own schools or churches), (d) the ability to ‘pass’ gives individuals a way of dealing with stigma that runs counter to organizing for change, and (e) discussion of sexual issues or sexual variation seems difficult in all societies.