Criminalization of homosexuality

The burning of the knight Richard Puller von Hohenburg with his servant before the walls of Zürich, for sodomy, 1482.

The Assyrian Laws contain a passage punishing homosexual relations, but it is disputed if this refers to consensual relations or only non-consensual ones.[1] The first known Roman law that touched on same-sex relations was the Lex Scantinia. Although the actual text of this law is lost, it likely prohibited free Roman citizens from taking the passive role in same-sex acts. The Christianization of the Roman Empire changed social mores to be increasingly disapproving of homosexuality. In the sixth century, Byzantine emperor Justinian introduced other laws against same-sex sexuality, referring to acts "contrary to nature".[2] The Syro-Roman law book, influential in the Middle Eastern legal tradition especially in Lebanon, prescribed the death penalty for homosexuality.[3]

In medieval Europe, sodomy was punishable in various jurisdictions especially after the year 1000 based on the diffusion of Roman law. In some cases it was punished by investigation and denunciation, in others by fines, and in some cases by the burning of the location where the act had taken place or the participants. The death penalty was common in early modern Europe.[4][5] Some Ottoman criminal codes called for fines for sodomy (liwat), but others did not mention the offense.[6] Sodomy was one of the offenses punishable by the Inquisition.[5] It is unclear how much sodomy laws were enforced; one theory is that enforcement was related to moral panics in which homosexuals were a scapegoat.[7] In 15th-century central Mexico, homosexual acts between men could be punished by disembowelment and smothering in hot ashes.[8]

In medieval England, sodomy was punishable by ecclesiastical law since the 10th or 11th century but not secular law.[5] English monarch Henry VIII codified the prohibition of homosexuality in England into secular law with the Buggery Act 1533,[9] an attempt to gain the high ground in the religious struggle of the English Reformation. This law, based on the religious prohibition in Leviticus, prescribed the death penalty for buggery (anal sex); the law was repealed multiple times and reenacted, the last time in the reign of Elizabeth I. The law was included in Blackstone's Commentaries and has had influence on much of the world because of British colonialism.[10][11] During the French Revolution in 1791, the National Constituent Assembly abolished the law against homosexuality as part of adopting a new legal code without the influence of Christianity. Although the assembly never discussed homosexuality, it has been legal in France ever since.[12][13] Previously it could be punished by burning to death, although this was infrequently enforced.[14][15] The abolition of criminality for sodomy was codified in the 1810 penal code.[16]

Participant carrying a poster against Section 377 during Bhubaneswar Pride Parade, India

Many present-day jurisdictions criminalize homosexuality based on colonial laws, especially the British Empire.[17] Codifications of British common law, including the Indian Penal Code, the Fitzjames Stephen Code, the Griffith Code, and the Wright Penal Code, were adopted in British colonies, spreading the criminalization of homosexuality.[18][19] The Indian Penal Code and its Section 377 criminalizing homosexuality were applied to several British colonies in Asia, Africa, and Oceania.[20][21] Wright's code was drafted for Jamaica and ultimately adopted in Honduras, Tobago, St. Lucia, and the Gold Coast.[22][23] The Stephen Code was adopted in Canada (and in a modified form in New Zealand), expanding the criminalization of homosexuality to cover any same-sex activity and making a life sentence a possible punishment.[24][25] The Griffith Code was adopted in Australia and several other Commonwealth countries including Nauru, Nigeria, Kenya, Tanzania, Papua New Guinea, Zanzibar and Uganda, and in Israel.[26][27] Once established, the laws against homosexuality are often maintained by inertia and even their inclusion into postcolonial criminal codes.[28]

Some states adopted British-inspired laws criminalizing homosexuality not on the basis of formal imposition, but informal influence, such as Bhutan.[29] Many Middle Eastern countries, although former British colonies, did not have British law imposed because of more hands-off governance. Criminalization of homosexuality in these countries is not because of British influence, but for other reasons such as the influence of sharia law.[30] Both China and Japan criminalized homosexuality based on Western models and later decriminalized it.[31]

The decriminalization of homosexuality was spread across Europe by Napoleon's conquests and the adoption of civil law and penal codes on the French model, leading to abolition of criminality in many jurisdictions and replacement of death with imprisonment in others.[32][33] Via military occupation or emulation of the French criminal code, the Scandinavian countries, Spain, the Netherlands, Portugal, Belgium, Japan, and their colonies and territories—including much of Latin America—decriminalized homosexuality.[34] It is the exception rather than the rule that civil law systems criminalized homosexuality.[35] Former French colonies are less likely than British ones to criminalize homosexuality,[36][37] although such laws have been added in some colonies that adopted French criminal codes, including Egypt, Tunisia, and Lebanon.[37] The Ottoman Empire is often considered to have decriminalized homosexuality in 1858, when it adopted a French-inspired criminal code,[38] but Elif Ceylan Özsoy argues that homosexuality was already decriminalized and this change of law actually penalized homosexuality more harshly than before because it introduced higher penalties for public displays of same-sex affection.[39] However, some Ottoman men were executed for sodomy including two boys in Damascus in 1807.[40]

Memorial in Berlin:

• "Struck Dead
• Hushed Up
• The homosexual victims of Nazism"

The unification of Germany reversed some of the gains of the Napoleonic conquests as the unified country adopted the Prussian penal code in 1871, re-criminalizing homosexuality in some areas.[32] Both Germany and Austria-Hungary considered and rejected decriminalizing it entirely.[41] The rise of nationalism meant that countries such as England began to take pride on prosecuting homosexuals.[42] In Germany, the prohibition on homosexuality was not frequently enforced until 1933.[43] In Nazi Germany from 1933 to 1945, an estimated 57,000 men were convicted of violating Paragraph 175.[44] Never before in history or since have so many homosexuals been convicted in such a short period of time.[45] Thousands of men were imprisoned and killed in Nazi concentration camps.[46] West Germany convicted about the same number of men under the same law until 1969, when homosexuality was partially decriminalized.[47] In the Russian Empire, homosexuality was criminalized in 1835.[48] The Russian Revolution abolished the tsarist-era laws against homosexuality in 1917. The criminalization was reinstated in 1934, with a harsher penalty than before, amid a Soviet propaganda campaign claiming that homosexuality was a fascist perversion.[49]

By 1958, Interpol had noticed a trend towards the partial criminalization of homosexuality with a higher age of consent than for heterosexual relationships. This model was recommended by various international organizations. Convergence occurred both through the partial decriminalization of homosexuality (as in the United Kingdom, and many other countries) or through the partial criminalization of homosexuality (such as in Belgium, where the first law against same-sex activity came into effect in 1965).[50] In the decades after World War II, anti-homosexuality laws saw increased enforcement in Western Europe and the United States.[51][52][53] Overall, there was a wave of decriminalization in the late twentieth century. Ninety percent of changes to these laws between 1945 and 2005 involved liberalization or abolition.[51] One explanation for these legal changes is increased regard for human rights and autonomy of the individual[54] and the effects of the 1960s sexual revolution.[55] The trend in increased attention to individual rights in laws around sexuality has been observed around the world, but progresses more slowly in some regions, such as the Middle East.[56]

Eighty percent of repeals between 1972 and 2002 were done by the legislature and the remainder by the laws being ruled unconstitutional by a court.[57] The 1981 ruling in Dudgeon v. United Kingdom by the European Court of Human Rights was the first time that a court called for the decriminalization of homosexuality.[58] Unlike earlier decriminalizations, repeal was not coincidental with the adoption of a new system of criminal law but rather by means of a specific law to repeal criminal sanctions on homosexuality, beginning with Sweden in 1944.[53] Decriminalization, initially limited to Europe and the Americas, spread globally in the 1980s.[59] The pace of decriminalization reached a peak in the 1990s. Following the dissolution of the Soviet Union, many former Soviet republics decriminalized homosexuality,[60] but others in Central Asia retained these laws.[61] China decriminalized homosexuality in 1997.[62] Following a protracted legal battle, the Supreme Court of India ruled that the criminalization of homosexuality violated the Constitution of India in the 2018 Navtej Singh Johar v. Union of India judgement.[63][64] In 2019, a plan to punish homosexuality in Brunei with a death sentence met with international outcry; as a result, there is a moratorium on the use of the death penalty.[64] Most Caribbean countries are former British colonies and retain the criminalization of homosexuality; Belize was the first to decriminalize it after the law was ruled unconstitutional in 2016.[65]

Caleb Orozco, the plaintiff in the case that led to Belize's law criminalizing homosexuality being struck down as unconstitutional

Adherence to Islam is a major predictor of maintaining laws criminalizing homosexuality and the death penalty for it. The majority of studies have found no association for Christianity even though some Christian religious leaders advocate the criminalization of homosexuality.[66][67][68] In some countries, criminalization of homosexuality derives from the application of sharia law.[37] State interference in religious matters, for example religious courts having jurisdiction beyond family law or bans on interfaith marriage, is strongly correlated with maintaining the criminalization of homosexuality.[69] Studies have found that modernization, as measured by the Human Development Index or GDP per capita,[70] and globalization (KOF Index of Globalization) was negatively correlated having laws criminalizing homosexuality over time.[71] LGBT movements often developed after the repeal of criminal laws, but in some cases they contributed to repeal efforts.[72] Although British colonization is associated with the criminalization of homosexuality, it has no effect on the likelihood of decriminalization.[73]

In 1981, the Council of Europe passed a resolution urging the decriminalization of homosexuality and the abolition of discriminatory age of consent laws.[74] Following the Dudgeon case the Council of Europe made decriminalization of homosexuality a requirement for membership, which in turn was a prerequisite for membership in the European Union; several European countries decided to decriminalize homosexuality as a result.[75] The Council of Europe admitted Lithuania in 1993 a few months before the country had repealed the criminalization of homosexuality; Romania was admitted the same year after promising to repeal its law but was still enforcing it in 1998.[76] Russia gave up its sodomy law in 1993 in part because of an aspiration to join the Council of Europe.[77] The last jurisdiction in Europe to decriminalize homosexuality was the self-proclaimed Turkish Republic of Northern Cyprus in 2014.[78]

In Africa, one of the primary narratives cited in favor of the criminalization of homosexuality is "defending ordre public, morality, culture, religion, and children from the assumed imperial gay agenda" associated with the Global North; homosexuality is seen as an "un-African" foreign import.[79][80][81] Such claims ignore the fact that many indigenous African cultures tolerated homosexuality, and historically the criminalization of homosexuality derives from British colonialism.[82][11][80] In the Middle East, homosexuality has been seen as a tool of Western domination for the same reason.[83]

The Obama administration's policy of supporting the decriminalization of homosexuality forced African politicians to take a public stance against LGBT rights in order to retain their domestic support.[79] The application of international pressure to decriminalize homosexuality has had mixed results in Africa. While it led to liberalization in some countries, it also prompted public opinion to be skeptical of these demands and encouraging countries to pass even more restrictive laws in resistance to what is seen as neocolonial pressure.[84][85][86] It has therefore been argued by some scholars such as Joseph Massad that the international LGBT movement does more harm than good in Africa or the Middle East, while some African LGBT organizations have urged Western countries not to leverage donor aid on LGBT rights issues.[87] In 2015, African academics launched a petition calling for the decriminalization of homosexuality and criticizing several common arguments against this move.[88] Politicians may also use homosexuality to distract from other issues.[54][81]

Following decolonization, several former British colonies expanded laws that had only targeted men in order to include same-sex behavior by women.[89] In many African countries, anti-homosexuality laws were little enforced for decades only to see increasing enforcement, politicization, and calls for harsher penalties since the mid-1990s.[90][91] Such calls often come from domestic religious institutions. The rise of Evangelical Christianity and especially Pentecostalism have increased the politicization of homosexuality as these churches have been engaged in anti-homosexual mobilizations as a form of nation building.[92] Cameroon had an anti-homosexuality law since 1962, but it was not enforced until 2005. That year both the Roman Catholic Church (especially Archbishop Simon-Victor Tonyé Bakot and Cardinal Christian Wiyghan Tumi) and the media began to make homosexuality a political issue.[93] As of 2020, Cameroon "currently prosecutes consensual same sex conduct more aggressively than almost any country in the world".[94] In Uganda, proposals to deepen the criminalization of homosexuality such as the so-called "Kill the Gays" bill have gained international attention.[95] Other African countries such as South Africa, Angola, Botswana, and Mozambique have decriminalized homosexuality.[96]

In its December 2020 report, the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) found that homosexuality is criminalized in 67 of 193 UN member states and one non-independent jurisdiction, the Cook Islands, while two UN member states, Iraq and Egypt, criminalize it de facto but not in legislation.[97] In at least six UN member states—Brunei, Iran, Mauritania, Nigeria (only northern Nigeria), Saudi Arabia, and Yemen—it is punishable by death. All of the countries that use the death penalty base it directly or indirectly on sharia law.[98] In 2007, five countries executed someone as a penalty for homosexual acts.[99] In 2020, ILGA named Iran and Saudi Arabia as the only countries in which executions for same-sex activity have reportedly taken place.[100] In other countries, such as Yemen, Somalia, Iraq, and Libya, extrajudicial executions are carried out by militias such as Al-Shabaab, Islamic State or Al-Qaeda.[101] In 2021, Téa Braun of the Human Dignity Trust estimated that more than 71 million LGBT people live in countries where homosexuality is criminalized.[102]

  Criminalized

  Decriminalized 1791–1850

  Decriminalized 1850–1945

  Decriminalized 1946–1989

  Decriminalized 1990–present

  Unknown date of legalization

  Always legal

The Abrahamic religions all have traditionally held negative attitudes towards homosexuality. The Hebrew Bible prescribes the death penalty for "lying with another man as with a woman" (Leviticus 20:13) but does not directly address lesbianism. It is disputed if the biblical prohibition was originally intended to prohibit temple prostitution or particular sexual acts between multiple men, particularly those that are seen as compromising a man's masculinity. The total prohibition of homosexual behavior is considered to have evolved relatively late in the Jewish tradition.[159] Some Christians cite various Bible passages in order to justify the criminalization of homosexuality.[160] Although the Holy See officially opposes the criminalization of homosexuality, in 2014 Roman Catholic bishops from Malawi, Kenya, Sudan, Tanzania, Eritrea, Zambia, Uganda, and Ethiopia united to demand criminal punishment of homosexuals, saying that it is unnatural and un-African.[161]

According to sharia law, liwat (anal intercourse) and sihaq or musahiqa (tribadism) are considered sins or criminal offenses.[37] The Sunni Hanafi school, unlike other Islamic schools and branches, rejects analogy as a principle of jurisprudence. Since there is no explicit call for the punishment of homosexuals in the accepted statements of Muhammed, Hanafi jurists classified homosexuality as a sin rather than a crime according to religious law and tazir offense whose punishment is left to the discretion of secular rulers.[162][163] According to the Maliki, Shafi'i, Hanbali (Sunni), and Ja'afari (Shia) schools any penetrative sex outside of marriage or a man with his female slave is zina, a more serious crime.[164] Zina is punishable by lashes or death by stoning; whether the death penalty is allowed depends on the school, whether the man has been married, and whether he is the active or passive partner. However, in order to apply the death penalty it requires a confession, repeated four times by the accused, or testimony by four witnesses.[37][165] All Sunni schools, but not the Shia Ja'afari, consider non-anal sex between men to be a tazir offense.[166] In recent times, some progressive Muslims have argued for a new interpretation of liwat (which is never defined in the Quran) to mean something other than consensual homosexual acts.[167]

A prominent reason cited for criminalizing homosexuality is the claim, made without evidence, that it could be spread as a result of "seduction" or "recruitment", and that laws against it would prevent homosexuals from recruiting children.[168][169][170][171] This rationale was later proved wrong by scientific research showing that sexual orientation was fixed by a young age.[172] Both Philo of Alexandria[173] and Heinrich Himmler believed that if allowed to spread unchecked, homosexuality would lead to depopulation; therefore they advocated harsh punishments.[174][175] The belief that the West is conspiring to depopulate Africa using homosexuality is also a common argument for retaining the criminalization of homosexuality in Africa.[176]

Supporters of paternalism argues that the state can interfere in citizens' private lives to secure a vision of the common good.[66] A common argument is that criminalization of homosexuality is necessary to maintain public morality,[177][132][178] "traditional values", cultural or social norms.[179] Anxieties around public morality gained prominence in nineteenth-century Western Europe and North America.[177] Before the medicalization of homosexuality in the nineteenth and twentieth centuries, it was commonly seen as a vice, similar to drunkenness, that occurred as a result of moral degradation rather than being an innate predisposition.[180] Soviet officials argued that homosexuality was a "social danger", that it contravened "socialist morality", and that criminalization was an essential tool to lower its prevalence.[77] Some countries have cited the perception that the criminalization of homosexuality would prevent the transmission of sexually transmitted infections, in particular HIV/AIDS, as a reason to keep their laws.[181][182]

Another reason cited in favor of criminalizing homosexuality is disapproving public opinion.[183][184] In 2014, a Cameroonian representative told the Committee on the Elimination of Discrimination against Women that "homosexuality would surely come to be accepted eventually" in her country, but that the law could not be changed until Cameroonian people changed their opinion on the matter.[185] The rarity of prosecutions is cited as a reason not to repeal the laws.[149][186]

Criticism of the criminalization of homosexuality began to be expressed by Enlightenment thinkers such as legal philosopher Cesare Beccaria in his 1764 treatise On Crimes and Punishments.[32][187] Early objections concerned the practical difficulty of enforcing the law[123][188][189] concerns of excessive state intrusion into private life,[123][188][32] and the belief that criminalization was not an effective way of reducing the incidence of homosexuality.[190][123] For example, Napoleon believed that "The scandal of legal proceedings would only tend to multiply" homosexual acts.[191] In 1898, socialist politician August Bebel argued in the Reichstag that Paragraph 175 was a failure as there were too many men practicing homosexuality for the law to be enforced except arbitrarily; in practice, working-class men were criminalized for actions that were ignored among the upper class.[192] One argument leading to the decriminalization of homosexuality in countries such as Canada, Czechoslovakia, East Germany, and Bulgaria is that homosexuality, as a pathological disease, is inappropriate as an object of criminal sanctions.[193][110][194]

Another argument cited for the decriminalization of homosexuality is that morality is distinct from law, which should concern itself only with the public good. The proposal for decriminalizing homosexuality in the United Kingdom in the Wolfenden Report in 1957 sparked a famous debate between Lord Devlin, H. L. A. Hart, and others about whether the law is a suitable instrument for the enforcement of morality when the interests of non-consenting parties are not affected.[195][196] Based on the work of John Stuart Mill, the harm principle posits that conduct can only be considered criminal if it harms people other than those performing the action. According to this principle, homosexuality should not be criminalized.[197][198] In 2015, Tunisian justice minister Mohamed Salah Ben Aïssa was sacked after arguing for the decriminalization of homosexuality because he believed it contravened the Constitution of Tunisia's protections for private life.[199][200] Many of these justifications are consistent with a strong moral condemnation of homosexuality[188] and are disputes over how best to handle the perceived social problem of homosexuality, rather than being based on the inalienable rights of LGBT people.[194]

Another line of reasoning argues that homosexuality is not morally wrong. Utilitarian philosopher Jeremy Bentham wrote the first systematic defense of sexual freedom, arguing that homosexuality and other forms of consensual sex were morally acceptable as they were pleasurable to their participants and to forbid these acts destroyed a great deal of human happiness.[201] In 1860s and 1870s, the German Karl Heinrich Ulrichs was the most prominent critic of the criminalization of homosexuality.[202] His demand for equality before the law and in religion on the basis of an innate, biologically based sexual drive—beginning with the decriminalization of homosexuality and ending with same-sex marriage—are similar to those sought by LGBT rights organizations in the twenty-first century.[203] As a result of social changes, in the twenty-first century, the majority of people in many Western countries believe that homosexuality is morally acceptable or not a moral issue.[204][205]

The criminalization of homosexuality is a violation of international human rights law.[149] The European Court of Human Rights found that laws criminalizing homosexuality violated the right to private life guaranteed by Article 8 of the European Convention on Human Rights in Dudgeon v. United Kingdom (1981), Norris v. Ireland (1988), and Modinos v. Cyprus (1993).[206] In the 1994 case Toonen v. Australia, the Human Rights Committee ruled that the criminalization of homosexuality in Tasmania violated the right to privacy and non-discrimination guaranteed in the International Covenant on Civil and Political Rights, even though the applicant was never arrested or charged with violating the law. While Tasmania argued that the law was necessary to protect traditional morals and prevent the transmission of HIV, the Human Rights Committee found that arguments about morals are not insulated from international human rights norms.[207]

In 2014, the African Union's Commission on Human and People's Rights issued a landmark resolution calling for the decriminalization of homosexuality.[208] In 2020, the Inter-American Commission on Human Rights found in Gareth Henry and Simone Carline Edwards v. Jamaica that Jamaica's laws criminalizing same-sex activities violated the applicants' right to privacy, right to humane treatment, freedom of movement, and principle of legality guaranteed by the American Convention on Human Rights. The commission recommended that Jamaica repeal the laws against same-sex activity in order to guarantee the non-repetition of similar human rights abuses in the future.[209] Persecution on the grounds of sexual orientation is a reason to seek asylum in some countries, including Canada, the European Union, and the United Kingdom, although depending on the case the mere existence of criminal sanctions may not be enough to be granted asylum.[149][210]

According to a 2017 worldwide survey by ILGA, the criminalization of homosexuality is correlated with more negative views on LGBT people and rights in public opinion. Overall, 28.5 percent of those surveyed supported the criminalization of homosexuality, while 49 percent disagreed. In states that criminalize homosexuality 42 percent agree and 36 percent disagree, compared with non-criminalizing states where 22 percent agree and 55 percent disagree. Knowing someone who is gay, lesbian, or bisexual is correlated with less support for criminalization.[211] The number of Americans who agree that homosexuality should be a criminal offense has dropped from 56 percent in 1986 to 18 percent in 2021.[212] Public opinion surveys show that while 78 percent of Africans disapprove of homosexuality, only 45 percent support it being criminalized. Another poll found that 98 percent of religious leaders in Africa are opposed to homosexuality.[213]