December 17, 2008

II. "Sodomy," Colonialism, and Codification

The laws that the Europeans brought dragged a long prehistory behind them.  The first recorded mentions of "sodomy" in English law date back to two medieval treatises called Fleta and Britton. They suggest how strictures on sex were connected to Christian Europe's other consuming anxieties.[39]

Fleta required that "Apostate Christians, sorcerers, and the like should be drawn and burnt. Those who have connections with Jews and Jewesses or are guilty of bestiality or sodomy shall be buried alive in the ground, provided they be taken in the act and convicted by lawful and open testimony." Britton, meanwhile, ordered a sentence of burning upon"sorcerers, sorceresses, renegades, sodomists, and heretics publicly convicted."[40] Both treatises saw "sodomy" as an offense against God. They classed it, though, with other offenses against ritual and social purity, involving defilement by Jews or apostates, the racial or religious Other.

The grab-bag of crimes was telling. It matched medieval law's treatment of "sodomy" elsewhere in Europe. The offense was not limited to sexual acts between men, but could include almost any sexual act seen as polluting.  In some places it encompassed intercourse with Turks and "Saracens" as well as Jews. [41]

In part, this traced to an old strain in Christian theology that held sexual pleasure itself to be contaminating, tolerable only to the degree that it furthered reproduction (specifically, of Christians). [42] More cogently, though, it reflected increasing fears in the advancing Middle Ages about pollution and defilement across social boundaries.  The historian R.I. Moore finds in the eleventh and twelfth centuries the birth of a "persecuting society" in Europe, targeting various enemies within-Jews, lepers, heretics, witches, prostitutes, and "sodomites"-who threatened purity and carried contamination, and had to be cast out and controlled.[43]  Periodic bursts of repression against these and other groups characterized European law for centuries to follow. "Sodomy" was pollution. Punishing it marked out racial and religious identity. The urgency British authorities later showed in transplanting "sodomy" laws into colonial contexts-even before they were fully codified at home-may reflect the legal category's origins. It was a way of segregating the Christian, European self from alien entities that menaced it with infection.

In England, King Henry VIII's break with the Catholic Church in the sixteenth century led to revising much of the country's common law-simply because offenses that had formerly been tried in church courts now had to be heard in secular ones.   Many sexual offenses were among them. A 1533 statute, therefore, reiterated the criminalization of "sodomy" as a state rather than Church concern. Under the name of the "detestable and abominable Vice of Buggery committed with mankind or beast," it was punished by death.[44] In one form or another, this law persisted until 1861. The last known execution for "buggery" in England was in 1836.[45]

The sense of the mysterious, polluting power of "sodomy" or "buggery" complicated the prosaic legal task of coming up with definitions. Precision was dangerous because it flirted with contamination. The jurist Edward Coke, in his seventeenth-century compilation of English law, wrote that "Buggery is a detestable, and abominable sin, amongst Christians not to be named." He stressed the foreign derivation of the term-"an Italian word"-as well as the act itself: "It was complained of in Parliament, that the Lumbards had brought into the realm the shamefull sin of sodomy, that is not to be named." He nonetheless named it as acts "committed by carnal knowledge against the ordinance of the Creator, and order of nature, by mankind with mankind, or with brute beast, or by womankind with brute beast."[46] Coke specified that anal sex between two men or a man and a woman, along with bestiality, were comprised by the term.

Describing "sodomy" precisely was risky, to be avoided. In an 1842 British court case that involved a man accused of committing "nasty, wicked, filthy, lewd, beastly, unnatural and sodomitical practices" in the vicinity of Kensington Gardens, the defense objected that the adjectives gave no indication of what the crime actually was.[47] The vagueness became more an issue as, in the nineteenth century, reformers set about codifying and imposing order on the chaos of British common law and statute law. The Offences Against the Person Act in 1861 consolidated the bulk of laws on physical offences and acts of violence into one "modern," streamlined statute-still the basis for most British law of physical assault. It included the offense of (consensual and nonviolent) "buggery," dropping the death penalty for a prison term of ten years to life.

Less well known is that codifying sexual offenses began far earlier, in 1825, when the mandate to devise law for the Indian colony was handed to the politician and historian Thomas Babington Macaulay. Macaulay chaired the first Law Commission of India and was the main drafter of the Indian Penal Code-the first comprehensive codified criminal law produced anywhere in the British Empire.[48]

The colonial environment was the perfect field for experiments in rationalizing and systematizing law. The colonies were passive laboratories. A nineteenth-century historian observed that the Indian Penal Code was a success because there, unlike at home, the British government could express "a distinct collective will" and could "carry it out without being hampered by popular discussion."[49]This autocratic imposition of a unified code took advantage of the "absence of a developed and contentious Indian public opinion around questions of criminal law," allowing Macaulay a "free field for experimentation."[50]

Fears of moral infection from the "native" environment made it urgent to insert anti-sodomy provisions in the colonial code. A sub-tradition of British imperialist writing warned of widespread homosexuality in the countries Britain colonized.  The explorer Richard Burton, for instance, postulated a "Sotadic Zone" stretching around the planet's midriff from 43 degrees north of the equator to 30 south, in which "the Vice is popular and endemic …. whilst the races to the North and South of the limits here defined practice it only sporadically amid the opprobrium of their fellows." [51]

The European codifiers certainly felt the mission of moral reform-to correct and Christianize "native" custom. Yet there was also the need to protect the Christians from corruption. Historians have documented how British officials feared that soldiers and colonial administrators-particularly those without wives at hand-would turn to sodomy in these decadent, hot surroundings. Lord Elgin, viceroy of India, warned that British military camps could become "replicas of Sodom and Gomorrah" as soldiers acquired the "special Oriental vices."[52]

Macaulay finished a draft Indian Penal Code in 1837, though Indian resistance and English hesitation meant that an approved version did not come into force until 1860.   Introducing the text in an 1837 speech, he discussed the clauses in detail-except when, reaching his version of the anti-sodomy provision, he showed a traditional discomfort that drafters had to speak to such distasteful issues:

Clause 361 and 362 relate to an odious class of offences respecting which it is desirable that as little as possible should be said … [We] are unwilling to insert, either in the text or in the notes, anything which could give rise to public discussion on this revolting subject; as we are decidedly of opinion that the injury which would be done to the morals of the community by such discussion would far more than compensate for any benefits which might be derived from legislative measures framed with the greatest precision.[53]

Despite this, however, Macaulay tried in fact to rationalize the British offense of "buggery." All the old vagueness around the term called out for clarification, and the colonies were the place to put this into practice. Macaulay came up with a broader definition of the violation of the "order of nature," involving any kind of offending "touch."  But he introduced a new axis of classification, according to whether the act was consensual or not-something never relevant in the old crime of "buggery."  He chose to impose fresh language on India. Two clauses pertained to "Unnatural Offences," distinguished by the element of consent:

Cl. 361 Whoever, intending to gratify unnatural lust, touches, for that purpose, any person, or any animal, or is by his own consenttouched by any person, for the purpose of gratifying unnatural lust, shall be punished with imprisonment … for a term which may extend to fourteen years and must not be less than two years, and shall also be liable to fine.
Cl. 362 Whoever, intending to gratify unnatural lust, touches for that purpose any person without that person's free and intelligent consent, shall be punished with imprisonment … for a term which may extend to life and must not be less than seven years, and shall also be liable to fine. [emphasis added]

The "injunction to silence"[54] that Coke and other jurists had promoted around the vocabulary of "sodomy" continued to be powerful, however. When the final draft of the Indian Penal Code came into force in 1860, the "Unnatural Offences" section was modified. The ultimate, historic text-which, in one form or another, influenced or infested much of the British Empire-read:

Section 377: Unnatural offences – Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment … for a term which may extend to 10 years, and shall be liable to fine.
Explanation – Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this Section.

The reasons for the change remain unclear, but its effects are evident. On the one hand, this version went back to the outlines of the old standard of "buggery," replacing the reference to "touching" with the criterion of "penetration." There were still plenty of ambiguities (including the question of what had to penetrate what).    These in turn let future colonial and post-colonial jurists redefine what these provisions actually punished.

On the other hand, the attempt to organize the offense around the axis of consent/non-consent was dropped.   In principle, stipulating that the act had to be "voluntary" meant the victim of forcible "carnal intercourse" could not be criminalized. But the other actor received the same punishment, and was guilty of the same offense, whether the act was forcible or not. Despite the code's modern pretensions, the provision offered no differing standard of harm based on the use of force.

Thus the separate Penal Code provision addressing rape (Section 375) remained restricted to a man's rape of a woman.  No distinct criminal offense was entailed in a man's sexual assault on another man; it was simply lumped with consensual offenses in Section 377.  Section 377 also had no separate provision or protection prohibiting an adult male from having sexual relations with a male child.   That offense, too, was contained in 377 without distinction.[55]

As a result, India-along with other countries from Zambia to Fiji with legal systems affected by the Indian Penal Code-was left without laws fully covering rape or child protection.   To the drafters, the act of "sodomy" itself was so horrible that the harm seemed uniform: regardless of the other party's age, and regardless of whether he consented or not. Section 377 appeared in a Penal Code section on "Offenses Affecting the Human Body."  The fiction that "carnal knowledge against the order of nature" violated one's own physical integrity, even if consented to, seems to have been powerful. (As the next chapter notes, it found fodder in medical myths that supposed the "habitual" sodomite prone to literal physical deformation).

Section 377 was exported to, and modified in other British colonies, and reinterpreted by their courts. Two themes emerge. They show again how colonial law was a field for exploring the meaning of an old British standard.

oBy defining "carnal knowledge" in terms of penetration, the Indian Penal Code language limited the act and left open the possibility that only the penetrating party might be guilty. As the law was applied in British colonies in subsequent years, one project was to redefine the scope of "penetration"-and ensure the provision would criminalize as broad a range of acts, and partners, "against the order of nature" as possible.

oThe absence of the factors of age or of consent in the law meant that consensual homosexual conduct was legally indistinguishable from rape or pedophilia. Thus the figure of the "homosexual" could easily be linked and assimilated-in popular thinking as well as before the law-to violent sexual criminals.

Finally, the "modernization" of British law in the Indian Penal Code was almost immediately exported back to Britain itself. The 1861 Offences against the Person Act dropped the death penalty for the "abominable crime of buggery," imposing a sentence modeled on that in the IPC.[56]

British law at home underwent a further refinement in 1885, during a revision of laws on the "protection of women, girls [and] the suppression of brothels." Henry Labouchere, a member of Parliament, introduced an amendment so unrelated to the debate that it was almost ruled out of order. When finally passed, it punished "Any male person who in public or private commits or is a party to the commission of or procures or attempts to procure the commission by any male person of any act of gross indecency with another male person," with two years at hard labor. "Gross indecency" was a broad offence designed to include virtually all kinds of non-penetrative sexual acts between two men.  Unlike the 1861 "buggery" law, the Labouchere Amendment also explicitly extended to private acts. The press quickly dubbed it the "blackmailer's charter." Oscar Wilde was convicted under its terms in 1895.[57]

Labouchere's law acknowledged that two men could practice many other sexual acts than "sodomy." A society ambitious to extirpate such acts needed an express acknowledgement of its power over privacy, and a wider criminal framework to punish them.

Labouchere's provision came too late to be introduced in the Indian Penal Code itself. However, subsequent colonial codes incorporated versions of it, including codes that derived from the IPC. It appeared in the Sudanese Penal Code in 1899, and in the influential penal law of Queensland in the same year. Malaysia and Singapore received the gross indecency provision jointly through an amendment in 1938.[58] Moreover, as explained below, subsequent jurisprudence in India (particularly the Khanu judgment) expanded the scope of "unnatural offences" to include what would otherwise have been "gross indecency" under British law. Further, though Labouchere's innovation only spoke of male-male sex, some governments have made "gross indecency" apply to sex between women-by dropping the "male" before "person" (as detailed below in chapter IV).

The Indian Penal Code became the model for British colonies' legal systems throughout most of Asia and Africa. Each territory took over the newest version, one legal historian writes, "improving and bringing them up to date, and the resulting product [was] then used as the latest model for an enactment elsewhere."[59] The Straits Settlement Law of in 1871, covering territory that today encompasses Singapore, Malaysia, and Brunei, effectively duplicated the IPC.[60]  Between 1897 and 1902 administrators applied the Indian Penal Code in Britain's African colonies, including Kenya and Uganda.[61] Some British residents complained about the undemocratic character of the codes. British East Africans, for instance, protested a policy of placing "white men under laws intended for a coloured population despotically governed."[62]

The Sudanese Penal Code of 1899 also adapted the IPC, but shows a different strain in codifying "unnatural offences." It reintroduced, uniquely among British colonies, the axis of consent and a form of differentiation by age. Its version of Section 377 reads:

S. 318 Whoever has carnal intercourse against the order of nature with any person without his consent, shall be punished with imprisonment for a term which may extend to fourteen years and shall also be liable to fine; provided that a consent given by a person below the age of sixteen years to such intercourse by his teacher, guardian or any person entrusted with his care or education shall not be deemed to be a consent within the meaning of this section [emphasis added].[63]

Similarly, while the Sudanese code adopted the "gross indecency" provision, it only punished it when non-consensual.[64] These distinctions were lost after independence, however, when in 1991 Sudan's government imposed a shari'a-inspired penal code.[65]

The Penal Code of the Australian colony of Queensland (QPC) was drafted in 1899 by the colony's chief justice, Sir Samuel Griffith.[66]  It came into force in 1901 and was the second most influential penal code after the IPC, especially in British Africa. The QPC introduced into the IPC's version of "unnatural offences" the category of the "passive" sexual partner-the one who "permits." Section 208 read:

Any person who –
            (a) has carnal knowledge of any person against the order of nature; or
            (b) has carnal knowledge of an animal; or
(c) permits a male person to have carnal knowledge of him or her against the order of nature, is guilty of a felony and is liable to imprisonment for fourteen years [emphasis added].

This eliminated one of the ambiguities in the IPC, making clear that both partners in the act were criminal. The QPC also widened the ambit beyond "penetration," by introducing an independent provision for "attempts to commit unnatural offences."[67]  Thus any sexual act or approach not resulting in penetration could be called an "attempt."

Outside Australia, the QPC first took root in Papua New Guinea. The chief justice of Northern Nigeria, H.C. Gollan, then decided to adopt it as the model for his colony's penal code, which came into force in 1904. It then became the subject of bureaucratic battles between colonial administrators; officials in Southern Nigeria were divided between proponents of the QPC and supporters of the Indian Penal Code.[68]   The former finally won out. In 1916, two years after Nigeria combined into a single colony, a common criminal code based on the QPC was adopted. [69]

That process reveals a point. Despite the claims of modern political leaders that anti-sodomy laws represent the values of their independent nations, the Queensland Penal Code spread across Africa indifferently to the will of Africans.

The whims, preferences, and power struggles of bureaucrats drove it.  After the Criminal Code of Nigeria was imposed, colonial officials in East Africa-modern Kenya, Uganda, and Tanzania-moved gradually to imitate it.  A legal historian observes that the "personal views and prejudices" of colonial officials, rather than any logic or respect for indigenous customs, led to replacing IPC-based codes with QPC-based codes in much of the continent.[70]

The versions of "unnatural offences" that spread with the QPC now encompassed a variety of acts: they punished a passive partner in sodomy, attempts at sodomy, and also "gross indecency." For instance, Uganda's Penal Code provided that:

S. 140: Any person who (a) has carnal knowledge of any person against the order of nature; or (b) has carnal knowledge of an animal; or(c) permits a male person to have carnal knowledge of him or her against the order of nature, is guilty of a felony and is liable to imprisonment for fourteen years.
S. 141 Any person who attempts to commit any of the offences specified in the last preceding section is guilty of a felony and is liable to imprisonment for seven years.
S.143 Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.

Nigeria did offer variations from the trend. Its version narrowed "carnal knowledge" to exempt sex between "a husband and wife," making clearer what it understood by the "order of nature."[71] The law zeroed in toward its primary focus on sex between men.[72]

Three generalizations arise from the confused history of "carnal knowledge" in colonial penal codes.

  • The anti-sodomy provisions that contemporary politicians defend as part of indigenous values never drew on local customary law, nor were they drafted through a deliberative process. Colonial officers devised and imposed them. They saw the sex laws as necessary precisely because they viewed local cultures as lax, a haven for "unnatural offenses."
  • Colonial authorities continuously grappled with terms and definitions, trying to arrive at both adequate language and common understandings around "unnatural offences." But they did so under the shadow of a moral anxiety about the effects of debate, an injunction to silence that helped justify autocratic lawmaking with no discussion among the "subject" peoples.
  • Redefinition tended to widen the scope of the law-and to criminalize not just sexual acts, but a kind of person.

[39]Fleta, seu Commentarius Juris Anglicani, was a Latin survey of English law produced in Edward I's court in 1290 (allegedly written while the out-of-favor author served time in Fleet prison, accounting for its name): Fleta, ed. and trans. H. G. Richardson and G. O. Sayles (London: Quaritch, 1955). Britton was composed somewhat later, and in Norman French.  See Heinrich Brunner, The Sources of the Law of England, trans. William Hastie (Edinburgh: T.T. Clark, 1888), and Hampton L. Carson, "A Plea for the Study of Britton," Yale Law Journal, Vol. 23, No. 8 (1914), pp. 664-671.

[40]Fleta, quoted in Leslie Moran, The Homosexual(ity) of Law (London: Routledge, 1996), p. 213, n. 2;  Britton, quoted in Derrick Sherwin Bailey, Homosexuality and the Western Christian Tradition (London: Longmans, 1955), p. 86. See also Michael Goodrich, "Sodomy in Medieval Secular Law," Journal of Homosexuality, Vol. 1 (1976), pp. 295-302.

[41] Long 2003, p. 260; see also David F. Greenberg, The Construction of Homosexuality (Chicago: University of Chicago, 1988), pp. 274-92.

[42] Christian precepts on sexual practice and sexual imagination were refined in patristic literature between the 1st and 8th centuries A.D. The emphasis was on minimizing pleasure and maximizing procreative possibility in sexual activity. All acts of intercourse, including heterosexual vaginal intercourse outside the "missionary" position, were graded as "unnatural" to the degree that pleasure superseded the purely procreative functions of the sexual act.  See James A. Brundage, Sex, Law and Marriage in the Middle Ages: Collected Studies (Aldershot: Variorum, 1993).

[43] R. I. Moore, The Formation of a Persecuting Society (London: Blackwell, 1987); see also Mary Douglas, Purity and Danger: An Analysis of the Concepts of Pollution and Taboo (London: Routledge, 2002).

[44] The word "buggery" derived by way of the French "bougre" from the medieval Bogomil heresy, which flourished in Bulgaria. Again, sexual and religious (and racial) "deviance" were intimately associated. See Bailey, pp. 147-49, and H. Montgomery Hyde, The Love That Dared Not Speak Its Name: A Candid History of Homosexuality in Britain (Boston: Little Brown, 1970). The law was repealed twenty years later with the return of Catholicism under Queen Mary, as sexual offences moved back to the jurisdiction of ecclesiastical courts; it was re-enacted under the Protestant Queen Elizabeth I in 1563. See also Kenneth Borris, Same-Sex Desire in the English Renaissance: A Sourcebook of Texts, 1470-1650 (London: Routledge, 2004).

[45] Hyde, p. 142.

[46] Edward Coke, The Third Part of the Institutes of the Laws of England, Cap. X, "Of Buggery, or Sodomy" (Printed for E. and R. Brooke, 1797), p. 58.

[47] The judges agreed that the invective in the indictment was unspecific. They concluded, however,  that simply adding the term "buggery" would have the effect of "shewing the intention implied by the epithets." R v. Rowed, cited in Moran 1996, pp. 38 ff.

[48] M. Y. Friedland, "Codification in the Commonwealth: Earlier Efforts," Commonwealth Law Bulletin, Vol. 18 (July 1992), p. 1172.

[49] J. F. Stephen, A History of the Criminal Law of England (London: Macmillan, 1883), vol. III, p.  304.

[50] Radhika Singha, A Despotism of Law: Crime and Justice in Early Colonial India (London: Oxford University, 1998).  See also Elizabeth Kolsky, "Codification and the Rule of Colonial Difference: Criminal Procedure in British India," Law and History Review, Vol. 23, No. 3 (2005), http://www.historycooperative.org/journals/lhr/23.3/kolsky.html (accessed August 8, 2008).

[51] Quoted in Robert Aldrich, Colonialism and Homosexuality (London: Routledge, 2003), p. 31. Or, as Lord Byron theorized about a similar but heterosexual "vice": "What men call gallantry, and Gods adultery / Is much more common where the climate's sultry." Don Juan, Canto I, stanza 63.

[52] Quoted in Ronald Hyam, Empire and Sexuality: The British Experience (London: Manchester University, 1990), p. 116; see also Hyam, "Empire and Sexual Opportunity," Journal of Imperial and Commonwealth History, Vol. 14, No. 2 (1986), pp. 34-89.

[53]Report of the Indian Law Commission on the Penal Code, October 14, 1837, pp. 3990-91.

[54] Moran 1995, p. 33.

[55] Meanwhile, a man who had sexual relations with a girl under 10 was guilty of statutory rape; the age was raised to 12 in 1891, 14 in 1925 and 16 in 1940. "Experts for Raising Statutory Rape Age to 16," One India, February 6, 2008, http://news.oneindia.in/2008/02/06/experts-for-raising-statutory-rape-age-to-16-1202306730.html (accessed August 8, 2008).

[56]Offences against the Person Act, 1861, 24 and 25 Victoriae, C.100, "Unnatural Offences," Sec 61.

[57] H. Montgomery Hyde, The Trials of Oscar Wilde (New York: Dover, 1962), pp. 12-13.

[58] Sec 377A was introduced into the Singapore Penal Code by Sec 7 of the Penal Code (Amendment) Ordinance 1938 (No 12 of 1938). The reason, as stated in the Proceedings of the Legislative Council of the Straits Settlements in 1938 was to "[make] punishable acts of gross indecency between male persons which do not amount to an unnatural offence within the meaning of s 377 of the Code": p. C81, April 25, 1938. See microfiche no 672, Straits Settlements Legislative Council, Proceedings (SE 102), Vol. 1938 (Central Library Reprographic Dept, National University of Singapore).

[59] H. F .Morris, "A History of the Adoption of Codes of Criminal Law and Procedure in British Colonial Africa, 1876-1935," Journal of African Law, Vol. 18, No. 1 (Spring, 1974), pp. 6-23.

[60] Dominic Chan, "Oral Sex - A Case of Criminality or Morality?" Singapore Law Gazette, September 2004, http://www.lawgazette.com.sg/2004-9/ (accessed August 8, 2008).

[61] James S. Read, "Criminal Law in Africa of Today and Tomorrow," Journal of African Law, Vol. 17, No. 1 (Spring 1963), pp. 5-17.

[62] Morris, p. 13.

[63] Alan Gledhill, The Penal Codes of Northern Nigeria and the Sudan (London: Sweet & Maxwell, 1963), p. 443.

[64] Ibid., p.444, Sec 319: "Whoever commits an act of gross indecency upon the person of another without his consent or by the use of force or threats compels a person to join with him in the commission of such act, shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine; provided that a consent given by a person below the age of sixteen years to such an act when done by his teacher, guardian or any person entrusted with his care or education shall not be deemed to be a consent within the meaning of this section."

[65] The Sudanese Penal Code of 1991, Sec 148, "Sodomy: (1) Any man who inserts his penis or its equivalent into a woman's or a man's anus or permitted another man to insert his penis or its equivalent in his anus is said to have committed Sodomy; (2) (a) Whoever commits Sodomy shall be punished with flogging one hundred lashes and he shall also be liable to five years imprisonment; (b) If the offender is convicted for the second time he shall be punished with flogging one hundred lashes and imprisonment for a term which may not exceed five years. (c) If the offender is convicted for the third time he shall be punished with death or life imprisonment." As chapter V discusses below, in a number of countries-Pakistan and Nigeria among them-the modern resurgence of supposedly shari'a-influenced or -derived laws has not so much revived "indigenous" legal values as further entrenched colonial ones.  This toxic mix is an important topic in its own right, but beyond the scope of this report.

[66] Friedland, p. 1177. It was based on an earlier proposal from 1878.

[67] Unnatural offenses themselves continued to be defined by penetration, as in Sec 6: "Carnal Knowledge: When the term 'carnal knowledge' or the term 'carnal connection' is used in defining an offence, it is implied that the offence,so far as regards that element of it, is complete upon penetration." However, Sec 2-9 of the QPC reads that "Any person who attempts to commit any of the crimes defined in the last preceding section is guilty of a crime, and is liable to imprisonment with hard labor for seven years."

[68] Broader issues than "unnatural offences" divided supporters of the two codes. The QPC was heavily inflected by European civil law, particularly the Italian Penal Code, and omitted the common-law requirement of mens rea, or criminal intent.

[69] H. F. Morris, "How Nigeria Got Its Criminal Code," Journal of African Law. Vol. 12, No. 3 (Autumn, 1970), pp. 137-154; see also Omoniyi Adewoye, The Judicial System in Southern  Nigeria, 1854-1954: Law and Justice in a Dependency (New Jersey: Humanities Press, 1977).

[70] Morris 1974, p. 6.

[71] Sec 6: "'Unlawful carnal knowledge' means carnal connection which takes place otherwise than between husband and wife."

[72] Later, in 1960, during the waning days of colonial rule, the territory of Northern Nigeria chose to have a separate Penal Code, independent of the new country's Federal Criminal Code. It took as a basis the Sudanese Penal Code of 1899, ironically based on the IPC, which Northern Nigeria had earlier rejected(Morris 1970, p. 153).  However, the fact that the Sudanese code had decriminalized consensual sodomy did not go unnoticed-or unchanged. The Northern Nigeria Penal Code reverted back to the old consent-neutral definition from the Indian Penal Code. To multiply confusion, though, the drafters neglected to make the same change to the "gross indecency" provision, which remained applicable only to non-consensual activities (Gledhill, p. 444).