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377 and the Unnatural Afterlife of British Colonialism in Asia

Published online by Cambridge University Press:  16 April 2015

Douglas E. Sanders*
Chulalongkorn University


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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.

Research Article
Copyright © Faculty of Law, National University of Singapore 2009


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10 Ezekiel 16:49-50 is explicit on the pride and greed of the people of Sodom.

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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.

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18 Gorton, supra, note 4 at 6.

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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 LawsThe 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.

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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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44 Personal communications, Professor Peter Jackson, December 2002, and Professor Tamara Loos, November 2007. Siam's ministers of justice from 1892 to 1913 all had law degrees from England. See Loos, Tamara, Subject Siam: Family, Law and Colonial Modernity in Thailand (Ithaca: Cornell University Press, 2002), Chapter 2, particularly 6567)Google Scholar; Masao, Tokichi, “The New Penal Code of Siam” (1908) Yale Law Journal 85100 CrossRefGoogle Scholar. Professor Chalidaporn Songsamphan of Thammasat University has said the ban only applied to male-female anal intercourse: Svasti, Pichaya, “Sex through the agesBangkok Post (January 22, 2008) O1Google 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, [1967] 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.

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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, [1961] All Pakistan Law Decisions, High Court of Dacca 252 Google Scholar, and Brother John Antony v. State [1992] 124 Criminal Law Journal 1352. See HRW, supra, note 1 at 19, 20, 21.

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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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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.

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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,

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