As India's High Court Mulls Reform, Nations Should Repeal This Legacy
December 17, 2008
"Half the world’s countries that criminalize homosexual conduct do so because they cling to Victorian morality and colonial laws."
Scott Long, director of the lesbian, gay, bisexual, and transgender rights program at Human Rights Watch.

(New York) - More than half of the world's remaining "sodomy" laws -criminalizing consensual homosexual conduct -  are relics of British colonial rule, Human Rights Watch showed in a report published today. Human Rights Watch urged governments everywhere to affirm international human rights standards, and reject the oppressive legacies of colonialism, by repealing laws that criminalize consensual sexual activity among adults of the same sex.

The 66-page report, "This Alien Legacy: The Origins of ‘Sodomy' Laws in British Colonialism," describes how laws in over three dozen countries, from India to Uganda and from Nigeria to Papua New Guinea, derive from a single law on homosexual conduct that British colonial rulers imposed on India in 1860. This year, the High Court in Delhi ended hearings in a years-long case seeking to decriminalize homosexual conduct there. A ruling in the landmark case is expected soon.

"Half the world's countries that criminalize homosexual conduct do so because they cling to Victorian morality and colonial laws," said Scott Long, director of the lesbian, gay, bisexual, and transgender rights program at Human Rights Watch. "Getting rid of these unjust remnants of the British Empire is long overdue."

On December 18, 2008, the UN General Assembly will hear a statement signed by over 60 countries affirming that human rights protections include sexual orientation and gender identity.

Some national leaders have defended sodomy laws as reflections of indigenous cultures. Zimbabwe's Robert Mugabe, for example, has called gays and lesbians "un-African" and "worse than dogs and pigs." The Human Rights Watch report shows, however, that British colonial rulers brought in these laws because they saw the conquered cultures as morally lax on sexuality. The British also wanted to defend their own colonists against the "corrupting" effect of the colonies. One British viceroy of India warned that British soldiers could succumb to "replicas of Sodom and Gomorrah" as they acquired the "special Oriental vices."

In the early 19th century, the British drafted a new model Indian Penal Code, finally put into force in 1860. Section 377 punished "carnal intercourse against the order of nature" with up to life imprisonment.

Versions of Section 377 spread across the British Empire, from Africa to Southeast Asia. Through it, British colonists imposed one view on sexuality, by force, on all their colonized peoples. Over time, these laws came to seek punishment against not particular acts but whole classes of people. The British, for instance, listed "eunuchs" - their term for India's hijras, or transgender people - as a "criminal tribe" because they were prone to "sodomy." Simply for appearing in public, hijras could be arrested and jailed for up to two years.

Today, international human rights standards have compelled former colonial powers to acknowledge that these laws are wrong. England and Wales decriminalized homosexual conduct in 1967. The European Court of Human Rights found in 1981 that a surviving sodomy law in Northern Ireland violated fundamental rights protections. In 1994, the UN Human Rights Committee - which authoritatively interprets the International Covenant on Civil and Political Rights (ICCPR) - held that sodomy laws violate the rights to privacy and to non-discrimination.

The laws nonetheless persist in many of Britain's old colonial possessions. Moreover, the model British-era sodomy law made no distinction between consensual and non-consensual sex, or between sex among adults and sexual abuse of children. As a result, these surviving laws leave many rape victims and child victims of abuse without effective legal protection.

"From Malaysia to Uganda, governments use these laws to harass civil society, restrict free expression, discredit enemies, and destroy lives," Long said. "And sodomy laws add to the spread of HIV/AIDS by criminalizing outreach to affected groups."
Colonies and countries that retain versions of this British sodomy law include:

  • In Asia and the Pacific: Bangladesh, Bhutan, Brunei, India, Kiribati, Malaysia, Maldives, Marshall Islands, Myanmar (Burma), Nauru, Pakistan, Papua New Guinea, Singapore, Solomon Islands, Sri Lanka, Tonga, Tuvalu, and Western Samoa. (Governments that inherited the same British law, but have abolished it since include: Australia, Fiji, Hong Kong, and New Zealand.)
  • In Africa: Botswana, Gambia, Ghana, Kenya, Lesotho, Malawi, Mauritius, Nigeria, Seychelles, Sierra Leone, Somalia, Swaziland, Sudan, Tanzania, Uganda, Zambia, and Zimbabwe.

Eleven former British colonies in the Caribbean also retain sodomy laws derived from a different British model than the one imposed on India.

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