Scott Long: Around the world, there are existing sex laws being strengthened, there are new sex laws being passed. In Egypt you have people being jailed for homosexuality and for being HIV positive under what’s actually a prostitution law that dates from the fifties. In Burundi and Nigeria, you have people trying to pass new laws against homosexual conduct. In innumerable countries you have laws on sex that are just used to persecute people for the way they look, the way they behave in public space. I think what we are seeing globally is an increasing reliance on criminal law as an instrument of social policy, and one reason this is happening, I believe, is neoliberalism, the processes that we call neoliberalism, which basically involves Western governments stripping governments in the developing world of their capacity to defend social welfare, to provide social services. All that neoliberalism has left those states is the police power. The police power is the only kind of social intervention they can imagine. So, you have . . . model laws that are being proposed internationally which urge countries to fight HIV by criminalizing HIV transmission. In other countries you have a belief that the only way that the state can justify its existence is by policing privacy, policing public spheres, to “defend public morals.” And, I think, buried at the heart of this is a kind of re-definition of what states and governments are for. That is part of the shadowy legacy of neoliberalism.
Nan Hunter: And you also noted, I think, that, in your view, this, taken to its logical conclusion, really amounts to even neocolonialism in the developing world.
Scott Long: . . . The colonial law was the antithesis of equality — it was about creating categories of people and ensuring that they had different rights. In a sense, to get technical about it, I would say the colonial law was the epitome of what Carl Schmitt was talking about as a perpetual state of emergency in which the state always had the power to retract rights from people it didn’t like. . . . Now that postcolonial states have been stripped down to the bare bones where policing is all they do, we’ve been seeing a return of that conception of law, as taking away equal citizenship and creating categories of inequality. We’ve also been seeing it in the developed world, because again and again what the developed world does to the colonial world comes home. . . . The war on drugs, the war on people who use drugs, internationally the war on terror, the war on people who live in terror, I think, are ways in which we’ve taken those colonial inequalities home and ensured that people have unequal access to services, to health, to justice, to rights. . . .
Scott Long is Director of the Lesbian, Gay, Bisexual, and Transgender Rights Division of Human Rights Watch. Nan Hunter is Professor of Law, Georgetown University Law Center. This video interview was released on YouTube on 21 July 2010. The text above is an edited partial transcript of the interview. See, also, Aeyal Gross, “Israeli GLBT Politics between Queerness and Homonationalism” (Bully Bloggers, 3 July 2010).