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In 2008, a case stood unresolved before India‘s High Court, calling for reading down Section 377 of the Indian Penal Code. That provision, almost 150 years old, punishes “carnal intercourse against the order of nature with any man, woman or animal” with imprisonment up to life.1 This law, understood to criminalize consensual homosexual conduct, allows the state to invade the lives and intimacies of millions of adult Indians.
Five years earlier in the long-running case, India’s Ministry of Home Affairs had submitted an affidavit supporting Section 377. It said: “The law does not run separately from society . It only reflects the perception of the society. . . . When Section 377 was brought under the statute as an act of criminality, it responded to the values and mores of the time in the Indian society.” The ministry claimed that, by comparison to the United Kingdom and the United States of America, “Objectively speaking, there is no such tolerance to [the] practice of homosexuality/lesbianism in the Indian society.”2
This was sheer amnesia. Section 377, at its origin, did not respond to Indian society or its “values or mores” at all. British colonial governors imposed it on India undemocratically. It reflected only “the British Judeo-Christian values of the time,” as the petitioners in the case told the court in reply.3 Indeed, on August 16, 2008 — the sixty-first anniversary of India’s freedom — the law’s opponents marched in Mumbai and demanded the UK government “apologise for the immense suffering that has resulted from their imposition of Section 377. And we call on the Indian government to abandon this abhorrent alien legacy . . . that should have left our shores when the British did.”4 They chose the day because while “India had got its independence from the British on this date in 1947, queer Indians were still bound by a British Raj law.”5
In a second case in the same month, in Malaysia, a court arraigned Anwar Ibrahim, former deputy prime minister and now a leader of the opposition. He stood charged with sexual relations with a male former aide, under Section 377 of Malaysia’s penal code, which also criminalizes “carnal intercourse against the order of nature.”
It was Anwar’s second trial for what the Malaysian press universally called “sodomy.” Like the first charges, nine years earlier, these showed every sign of a political frame-up. Anwar had been preparing to return to political life in a parliamentary by-election when the allegations broke. If Malaysia’s government believed, as India’s apparently did, that the colonial-era law mirrored deep social prejudices, then the case was a perfect tool to discredit him.
Yet according to an opinion poll, two-thirds of Malaysians thought politics lurked behind the charges, and only one-third believed the criminal-justice system could handle Anwar’s case fairly.6 Regardless of how Malaysians felt about homosexual conduct, they did not trust the government to administer the law. The state’s handling of the evidence fed suspicions. Police had sent the man who filed the complaint to a hospital, for anal examinations designed to prove the charges: standard procedure in many countries. Embarrassingly, however, the tests — later leaked on the internet — apparently found no proof. The government vacillated, too, between charging Anwar with consensual and non-consensual “sodomy.” The uncertainty came easy. The law had only relatively recently made a distinction between the two — and it still provided virtually identical punishments, regardless of consent.
A third case came in Uganda, where three members of an organization defending lesbian, gay, bisexual, and transgender (LGBT) people’s rights faced trial. They had staged a peaceful protest at an AIDS conference in Kampala, drawing attention to the government’s refusal to respond to the pandemic among the country’s lesbian, gay, bisexual, and transgender (LGBT) communities. Police promptly arrested them and charged them with criminal trespass.
Seemingly the case had nothing to do with “sodomy” or sex, but over it hung the shadow of Uganda’s law punishing “carnal knowledge against the order of nature.” That law, Section 140 of the criminal code, was also a British colonial inheritance, though in 1990 legislators had strengthened it, raising the highest penalty to life imprisonment. The government used the revised law to harass both individuals and activists who were lesbian or gay, censoring their speech, threatening them with prison, raiding their homes. Officials also relied on the law to explain, or excuse, their failure to support HIV/AIDS prevention efforts among LGBT people — the inaction that sparked the protest. Four years earlier, the Minister of Information had demanded that both the United Nations and national AIDS authorities shut out all LGBT people from HIV/AIDS programs and planning. He cited the law against homosexual conduct.7 A spokesman for the Uganda AIDS Commission, the central national clearinghouse for prevention and treatment, conceded in 2006: “There’s no mention of gays and lesbians in the national strategic framework, because the practice of homosexuality is illegal.”8
There was no doubt, then, that the “trespass” charges against the protesters aimed not just to suppress dissent, but to send a message that some people — “sodomites,” violators of the “carnal knowledge” law — should not be seen or heard in public at all. President Yoweri Museveni, who had campaigned against LGBT people’s rights for a decade, reinforced that message at every opportunity. He called homosexuality “a decadent culture . . . being passed by Western nations,” warning: “It is a danger not only to the [Christian] believers but to the whole of Africa.”9 He praised Ugandans for “rejecting” it, and claimed that “having spinsters and bachelors was quite alien to Ugandan traditions.”10
The law primed the whole populace to help extirpate the “danger.” For instance, one influential pastor — famous for his campaigns against condom use — urged that “Homosexuals should absolutely not be included in Uganda’s HIV/AIDS framework. It is a crime, and when you are trying to stamp out a crime you don’t include it in your programmes.”11 The same minister listed Ugandan LGBT rights activists by name on a website, posting pictures and addresses of the “homosexual promoters” — making them bullseyes for brute vengeance. The atmosphere crackled with explosive menace. After the activist press conference in 2007, hundreds marched to threaten punishment for LGBT people, calling them “criminal” and “against the laws of nature.”12 Yet government ministers still warned that tougher anti-gay measures were needed. “Satan,” one said, “is having an upper hand in our country.”13
Colonial Laws and Contemporary Defenders
More than 80 countries around the world still criminalize consensual homosexual conduct between adult men, and often between adult women.14
These laws invade privacy and create inequality. They relegate people to inferior status because of how they look or who they love. They degrade people’s dignity by declaring their most intimate feelings “unnatural” or illegal. They can be used to discredit enemies and destroy careers and lives. They promote violence and give it impunity. They hand police and others the power to arrest, blackmail, and abuse. They drive people underground to live in invisibility and fear.15
More than half those countries have these laws because they once were British colonies.
This report describes the strange afterlife of a colonial legacy. It will tell how one British law — the version of Section 377 the colonizers introduced into the Indian Penal Code in 1860 — spread across immense tracts of the British Empire.
Colonial legislators and jurists introduced such laws, with no debates or “cultural consultations,” to support colonial control. They believed laws could inculcate European morality into resistant masses. They brought in the legislation, in fact, because they thought “native” cultures did not punish “perverse” sex enough. The colonized needed compulsory re-education in sexual mores. Imperial rulers held that, as long as they sweltered through the promiscuous proximities of settler societies, “native” viciousness and “white” virtue had to be segregated: the latter praised and protected, the former policed and kept subjected.
Section 377 was, and is, a model law in more ways than one. It was a colonial attempt to set standards of behavior, both to reform the colonized and to protect the colonizers against moral lapses. It was also the first colonial “sodomy law” integrated into a penal code — and it became a model anti-sodomy law for countries far beyond India, Malaysia, and Uganda. Its influence stretched across Asia, the Pacific islands, and Africa, almost everywhere the British imperial flag flew.
In Asia and the Pacific, colonies and countries that inherited versions of that British law were: Australia, Bangladesh, Bhutan, Brunei, Fiji, Hong Kong, India, Kiribati, Malaysia, Maldives, Marshall Islands, Myanmar (Burma), Nauru, New Zealand, Pakistan, Papua New Guinea, Singapore, Solomon Islands, Sri Lanka, Tonga, Tuvalu, and Western Samoa.
In Africa, countries that inherited versions were: Botswana, Gambia, Ghana16, Kenya, Lesotho, Malawi, Mauritius, Nigeria, Seychelles, Sierra Leone, Somalia, Swaziland, Sudan, Tanzania, Uganda, Zambia, and Zimbabwe.17
Among these, only New Zealand (in 1986), Australia (state by state and territory by territory), Hong Kong (in 1990, before the colony was returned to China), and Fiji (by a 2005 high court decision) have put the legacy, and the sodomy law, behind them.
Other colonial powers had far less impact in spreading so-called sodomy laws. France decriminalized consensual homosexual conduct in 1791.18 (It did, however, impose sodomy laws on some French colonies as means of social control, and versions of these survive in countries such as Benin, Cameroon, and Senegal.) Germany’s notorious Paragraph 175 punished homosexual acts between men from Bismarck’s time till after the Nazi period.19 German colonies were few, however, and the legal traces of its presence evanescent.20
This report does not pretend to be a comprehensive review of “sodomy” and European colonial law. It concentrates on the British experience because of the breadth and endurance of its impact. Nor does this report try to look at the career of “sodomy” and law in all the British colonies. For clarity, it focuses on the descendants of India’s Section 377. (Britain’s Caribbean possessions received the criminalization of “buggery” in British law, but by a different process relatively unaffected by the Indian example. They are not discussed here.21)
As Britain tottered toward the terminal days of its imperial power, an official recommendation by a set of legal experts — the famous Wolfenden Report of 1957 — urged that “homosexual behaviour between consenting adults in private should no longer be a criminal offence.” The report said:
The law’s function is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others . . . It is not, in our view, the function of the law to intervene in the private life of citizens, or to seek to enforce any particular pattern of behaviour.22
England and Wales decriminalized most consensual homosexual conduct in 1967.23 That came too late for most of Britain’s colonies, though. When they won independence in the 1950s and 1960s, they did so with the sodomy laws still in place.
Few of those independent states have undertaken repeal since then. This flies in the face of a growing body of international human rights law and precedents demanding that they do so. They disregard, too, the example of formerly colonized states like Ecuador, Fiji, and South Africa that have actually enshrined protections for equality based on sexual orientation in their constitutions.
Still more striking is how judges, public figures, and political leaders have, in recent decades, defended those laws as citadels of nationhood and cultural authenticity. Homosexuality, they now claim, comes from the colonizing West. They forget the West brought in the first laws enabling governments to forbid and repress it.
Addressing the sodomy law in 1983, India’s Supreme Court proudly declared that “neither the notions of permissive society nor the fact that in some countries homosexuality has ceased to be an offence has influenced our thinking.”24 Courts there have deliberately distanced themselves from conclusions like those of the Wolfenden report, finding — in the ultimate paradox — that England now embodies the sexual decadence against which India must be defended. “Various fundamental differences in both the societies [England and India] must be realised by all concerned, especially in the area of sexual offences,” one judge held.25
Opponents of change have mounted the same argument elsewhere. While Hong Kong was still a British colony, its authorities fought Wolfenden-like law reforms.26 Commissions deputed to investigate the issue heard opinions such as “Homosexuality may be very common in Britain, but it is definitely not common in Hong Kong. Even if it is, it is still wrong to legalize activities that are in clear breach of our morals.”27 Only in 1990, after long advocacy by the LGBT community, did the colony decriminalize consensual homosexual sex.28
After fiery debate, Singapore’s government refused to rid itself of its colonial law against homosexual conduct in 2007. The supporters of this position cited the “communal cohesiveness” that the British statute supposedly defended.29 A petition to the prime minister called the law, forced on the colony decades before, “a reflection of the sentiments of the majority of society. … Repealing [it] is a vehicle to force homosexuality on a conservative population that is not ready for homosexuality.”30 In November 2001, the then prime minister of neighboring Malaysia, who had encouraged Anwar Ibrahim’s first “sodomy” trial, blamed homosexuality on the former colonial power: “The British people accept homosexual [government] ministers,” he said. “But if they ever come here bringing their boyfriend along, we will throw them out. We will not accept them.”31
Extreme and extraordinary, however, have been the law’s defenses from sub-Saharan Africa. Zimbabwe’s Robert Mugabe launched the long ferocity in the early 1990s, vilifying lesbians and gays as “un-African” and “worse than dogs and pigs.” “We are against this homosexuality and we as chiefs in Zimbabwe should fight against such Western practices and respect our culture,” he berated crowds.32 President Daniel Arap Moi of Kenya blasted homosexuality as “against African tradition and biblical teachings. We will not shy away from warning Kenyans against the dangers of the scourge.”33 In Zambia, a government spokesman proclaimed in 1998 that it was “un-African and an abomination to society which would cause moral decay”; the vice-president warned that “if anybody promotes gay rights after this statement the law will take its course. We need to protect public morality.”34
Some reasoned voices spoke up. Nelson Mandela, steering a country proud of its human rights reforms, told a gathering of southern African leaders that homosexuality was not “un-African,” but “just another form of sexuality that has been suppressed for years . . . Homosexuality is something we are living with.”35 Over the years, though, the desperate defense of Western mores in indigenous clothing grew more enraged, and influential. Nigeria’s President Olusegun Obasanjo perorated to African Bishops in 2004 that “homosexual practice” was “clearly un-Biblical, unnatural, and definitely un-African.” A Nigerian columnist echoed him, claiming those who “come in the garb of human rights advocates” are “rationalizing and glamourising sexual perversion, alias homosexuality and lesbianism . . . The urgent task now is to put up the barricades against this invading army of cultural and moral renegades before they overwhelm us.”36
From Singapore to Nigeria, much of this fierce opposition stemmed from Christian churches — themselves, of course, hardly homegrown in their origins. Archbishop Peter Akinola, head of the Anglican Church of Nigeria, has threatened to split his global denomination over some Western churches’ acceptance of lesbians and gays. He acknowledges that the missionaries who converted much of Africa in colonial days “hardly saw anything valid in our culture, in our way of life.”37 Yet he also interprets the most stringent moral anathemas of the missionaries’ faith, along with an imported law against homosexuality, as essential bulwarks of true African identity.
But the embrace of an alien legal legacy is founded on falsehood. This report documents how it damages lives and distorts the truth. Sodomy laws throughout Asia and sub-Saharan Africa have consistently been colonial impositions. No “native” ever participated in their making. Colonizers saw indigenous cultures as sexually corrupt. A bent toward homosexuality supposedly formed part of their corruption. Where precolonial peoples had been permissive, sodomy laws would cure them — and defend their new, white masters against moral contagion.
Chapter II of this report traces the history of Britain’s law on “sodomy,” or “buggery,” from its medieval origins to the nineteenth-century attempt to rationalize the chaos of common law. The draft Indian Penal Code, the first experiment in producing a criminal code anywhere in the Empire, was a test of how systematizing law would work. Colonial officials codified sodomy as a criminal offense — and refined its meaning-in the process of writing comprehensive codes. This began in India, and traveled from Nigeria to the Pacific in the imperial bureaucrat’s baggage.
Chapter III shows how the sodomy provisions connected to other laws and practices that strengthened the colonial state’s authority: laws that marked out whole populations as “criminal,” and medical practices that marked off some bodies as intrinsically, physiologically perverse. Both assumed that laws should not just punish specific sexual acts, but help control certain types of dangerous persons.38
Chapter IV traces how courts, under colonialism and in the newly independent states, interpreted the vague language laid down in the colonial codes. Three themes emerge.
- First, judges tried to bring an ever wider range of sexual acts within the laws’ punitive reach: descending, while doing it, into almost-comical obsessions with orifice and organ, desire and detail.
- Second, the sodomy laws almost universally made no distinction on the basis of consent, or the age of the partners. The horror lawmakers and judges felt for homosexual conduct simply obliterated these issues. The “homosexual” therefore emerged before the law deeply tarnished by the association with pedophilia and rape — as a sexual monster.
- Finally, British provisions on “gross indecency” gave police opportunities to arrest people on the basis of suspicion or appearance. And they were an opening for governments looking to criminalize sex between women as well.
Chapter V concludes by looking at the actual effects of sodomy laws in these countries. They do not aim just at punishing acts. They post broad moral proclamations that certain kinds of people, singled out by presumption and prejudice, are less than citizens — or less than human.
Eliminating these laws is a human rights obligation. It means freeing part of the population from violence and fear. It also means, though, emancipating post-colonial legal systems themselves from imported, autocratically imposed, and artificial inequalities.
1 As explained below, most law derived from British colonialism makes no distinction between homosexual acts committed with or without consent, or between homosexual acts committed by adults as opposed to adults’ abuse of children. Therefore, the petition aims to “read down” rather than strike down the law. It asks the Court to state that consensual homosexual acts between adults are no longer criminal under the provision, while leaving intact Section 377’s application to non-consensual acts and to children — until India passes a modern, gender-neutral rape law, and provides express legal protection for male children against sexual abuse.
2 High Court of Delhi, Naz Foundation v. Govt. Of N.C.T. of Delhi and Others (Special Leave Petition No. 7217-7218 of 2005), Counter affidavit on behalf of respondent no. 5, (accessed August 15, 2008).
3 High Court of Delhi, Naz Foundation v. Govt. Of N.C.T. of Delhi and Others (SLP No. 7217-7218 of 2005), Rejoinder to Government of India, (accessed August 15, 2008). See also Sumit Baudh, “Human Rights and the Criminalisation of Consensual Same-Sex Sexual Acts in the Commonwealth, South and Southeast Asia,” a working paper of the South and Southeast Asia Resource Center on Sexuality, May 2008.
4 Jerome Taylor, “Minority Report: Gay Indians Demand a British Apology,” The Independent (U.K), August 15, 2008.
6 Human Rights Watch, “Malaysia: Drop Political Charges against Opposition Leader,” August 7, 2008.
7 “Government Warns UNAIDS over Gays,” The Daily Monitor (Uganda), November 29, 2004.
8 “Uganda: Stuck in the Closet: Gays Left out of HIV/AIDS Strategy,” Plus News, March 17, 2006, (accessed September 13, 2007).
11 Pastor Martin Ssempa, quoted in “Uganda: State Homophobia Putting Gays at HIV Risk-Activists,” Plus News, August 24, 2007, (accessed September 12, 2007).
12 Human Rights Watch, “Uganda: Rising Homophobia Threatens HIV Prevention: US Should Halt Role in Funding Prejudice and Fear,” October 11, 2007.
14 An exact number is hard to calculate. Almost none of these laws mention “homosexuality” (a term only coined in 1869) or homosexual acts; the terminology differs between legal systems and (as the discussion of the original meanings of “sodomy” in Chapter II below shows) is sometimes difficult to interpret. For instance, Egypt is often excused from lists because its law punishes the “habitual practice of debauchery [fujur],” even though domestic jurisprudence since the 1970s has established that this term refers to consensual sex between men. The best reference work on the subject is Daniel Ottosson, State-Sponsored Homophobia: A World Survey of Laws Prohibiting Same-Sex Activity Between Consenting Adults, an International Gay and Lesbian Association (ILGA) report, www.ilga.org/statehomophobia/
ILGA_State_Sponsored_Homophobia_2008.pdf (accessed August 1, 2008).
15 The principle that criminalizing consensual same-sex sexual conduct violates basic human rights was laid down by the UN Human Rights Committee — which interprets and monitors compliance with the International Covenant on Civil and Political Rights (ICCPR) — in the 1994 case of Toonen v. Australia. The Committee found that sexual orientation is a status protected against discrimination under articles 2 and 26 of the ICCPR.
16 The Ghanaian code differs from other British-derived Penal Codes in Africa in that consensual “buggery,” while a crime, is defined only as a misdemeanor. Ghanaian law does not derive directly from the Indian Penal Code (or the Queensland Penal Code) — as do most other British-African codes, as explained below. Its ancestor was a draft prepared for Jamaica by the liberal British jurist R.S. Wright, who was heavily influenced by the libertarian ideals of the philosopher John Stuart Mill. (Mill famously wrote that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others”: Mill, On Liberty (Harmondsworth: Penguin, 1974), p. 68). Wright’s draft code was never applied in Jamaica but became the basis for Ghanaian law. See M. L. Friedland, “R. S. Wright’s Model Criminal Code: A Forgotten Chapter in the History of the Criminal Law,” Oxford Journal of Legal Studies, Vol. 1, No. 3 (Winter 1981), pp. 307-346.
17 South Africa, although taken over by the British in 1806, retained the Netherlands’ common law, known as “Roman-Dutch” — which also criminalized “sodomy.” This common-law offense was finally struck down by the Constitutional Court of the post-apartheid country in 1998. (The Netherlands itself decriminalized sodomy in 1809, when Napoleon annexed it. In one of the typical paradoxes of colonial law, this was three years too late to affect the Netherlands’ onetime African colony, which kept Roman-Dutch law in its pre-1806 form and hence retained the crime.) Roman-Dutch law came to what is now Namibia when, as the territory of South-West Africa, it became a South African mandate in the wake of World War I. It remains Namibia’s common law, and sodomy is still a crime there. The same is true of Zimbabwe, which began its colonial existence as a possession of Cecil Rhodes’ Cape Town-based British South Africa Company. However, Roman-Dutch law in colonial Rhodesia as well as modern Zimbabwe has been interpreted by judges trained in British common law, and the understanding of sexual offences there has been heavily affected by the Sec 377 tradition. For a fuller discussion, see Scott Long, “Before the Law: Criminalizing Sexual Conduct in Colonial and Post-Colonial Southern African Societies,” in More than a Name: State-Sponsored Homophobia and its Consequences in Southern Africa, a Human Rights Watch/International Gay and Lesbian Human Rights Commission report, 2003, pp. 256-299.
18 Napoleon’s armies then brought decriminalization to the conquered Netherlands, and thus to most of its colonies.
19 East Germany eliminated it in 1957 and West Germany in 1969.
20 Most of its colonies passed to Britain, France, or Belgium after the First World War.
21 See Hated to Death: Homophobia, Violence, and Jamaica’s HIV/AIDS Epidemic, a Human Rights Watch report, 2004.
22 The Wolfenden Report: Report of the Committee on Homosexual Offences and Prostitution (New York: Stein and Day, 1963), p. 23.
23 Scotland followed in 1980, and Northern Ireland in 1982.
24 Fazal Rab Choudhary v. State of Bihar, 1983 All India Report (Supreme Court), p. 323.
25 Kailash v. State of Haryana, 2004 Criminal Law Journal, p. 310 at para 8. In fact, historians contend that in India before British rule, there was no aggressive policing of homosexual conduct. See Saleem Kidwai and Ruth Vanita, eds., Same-Sex Love in India: Readings from Literature and History (New York: St. Martin’s Press, 2000).
26 See Carole J. Petersen, “Values in Transition: The Development of the Gay and Lesbian Rights Movement in Hong Kong,” Loyola of Los Angeles International and Comparative Law Journal, Vol. 19 (1997), pp. 337-62.
27 Submission from General Association of Kowloon District Association, quoted in The Law Reform Commission of Hong Kong, Report, Laws Governing Homosexual Conduct, June 28,1982, www.hkreform.gov.hk/en/docs/rhomosexual-e.doc (accessed August 8, 2008). (The Law Reform Commission, however, supported the Wolfenden principles).
28 It however retained a discriminatory age of consent — 14 for heterosexual sex, 21 for sex between men — and a draconian punishment of imprisonment up to life for gay men who broke it, as against five years for heterosexuals. This was only overturned in court in 2006.
30 “Open Letter to the Prime Minister,” Keep377a.com, www.keep377a.com/Letters.aspx (accessed August 25, 2008).
32 Quoted in More than a Name: State-Sponsored Homophobia and Its Consequences in Southern Africa, p. 23.
34 Quoted in More than a Name, p. 39.
35 Gift Siso Sipho and Barrack Otieno, “United Against Homosexuality.”
37 Quoted in Craig Timberg, “Nigerian Churches Tell West to Practice What It Preached on Gays,” Washington Post, October 24, 2005.
38 See Leslie J. Moran, “The Homosexualization of English Law,” in Didi Herman and Carl Stychin, eds., Legal Inversions: Lesbians, Gay Men, and the Politics of Law (Philadelphia: Temple University, 1995).
This report was researched and written by Alok Gupta, consultant to Human Rights Watch. Substantial contributions to the research and writing were made by Scott Long, director of the Lesbian, Gay, Bisexual, and Transgender Rights Program at Human Rights Watch. Human Rights Watch is grateful for the advice and assistance of the Lawyers Collective HIV/AIDS Unit, Mumbai, India; Alternative Law Forum, Bangalore, India; Voices Against 377, India; and Alex Au, Duma Boko, Vikram Doctor, Isabel Goodman, Sydney Malupande, Derek Matyszak, Alice Miller, Arvind Narrain, Oliver Phillips, Jeff Redding, Jessica Stern, and Ashwini Sukthankar, who provided information or commented on the manuscript in vital ways. Peter Rosenblum, associate clinical professor of human rights at Columbia University Law School, assisted with access to law libraries for legal research. The report was originally published by Human Rights Watch on 17 December 2008, and the extract above is reproduced here for educational purposes. Go to <www.hrw.org/en/reports/2008/12/17/alien-legacy-0> to read the full report online or download it in PDF. © Copyright 2008, Human Rights Watch