December 17, 2008

III. Colonial Power on the Street and over the Body

Why was criminalizing consensual homosexual conduct important to the colonial, and post-colonial, state?

No single explanation can describe what happened-what is still happening-in places as distant and different as Zambia and Singapore. One hint, though, lies in the other laws and practices colonizers imported along with anti-sodomy provisions.  Those provisions were part of a package, one that extended the "civilizing," reforming mission-and the power and the knowledge-of the still-tenuous colonial apparatus over both broader and more intimate areas of life. The state rigidly policed the public sphere and people's bodies. Many of its mechanisms are still working.

From "Vagrant" to "Eunuch"

Vagrancy laws target people whom officials see as wandering or loitering with no purpose. Beyond that, though, they help to rid the public sphere of people not wanted there: to "alleviate a condition defined by the lawmakers as undesirable," as one commentator observes.[73] They do not require a "proscribed action or inaction," another writes, but depend on a "certain personal condition or being a person of a specified character."[74] They make people criminals for what they are, not what they do. And not every "wanderer" qualifies as a target. Enforcement usually aims selectively at despised groups such as migrant laborers, the poor, the homeless, beggars, travelers, or street children.[75]

In Europe for centuries, legal and administrative measures controlling "vagrancy" criminalized poverty, to keep it and the effects of economic dislocation out of sight.[76] Brutal laws in England had been a fixture at least since the Tudor period, when enclosures and privatizing common land had caused vast increases in the numbers of homeless, drifting poor.  A 1572 act required "Rogues, Vagabonds, or sturdy Beggars" to "be grievously whipped, and burnt through the gristle of the right Ear with a hot Iron."[77] The United Kingdom's 1824 Vagrancy Act systematized both classification and punishment of undesirables for a bourgeois age. Anyone begging or sleeping out, as well as appearing to engage in prostitution or acts associated with a "disreputable mode of life," could be convicted as "idle and disorderly" and sentenced to two weeks' hard labor.  Multiple convictions, or conspicuous poverty, led one to be classed as a "rogue and vagabond" or, worse, an "incorrigible rogue," in a descending ladder of permanent legal stigma.[78] This breadth and sweep of preemptive classification remained a feature of vagrancy laws into the twenty-firstcentury.  (In California, for instance, a 1950s legal change revised the former common-law definition of a vagrant as "a wanderer from the place where he worked," to one where any "idle, or lewd or dissolute person" could be classed as vagrant.[79])

The 1824 law was a model for equally broad criminalization of "vagrancy" throughout British colonies.  The Bengal Vagrancy Act and the Bombay Beggary Prevention Act are classic examples.  Most such colonial-era laws used the same tripartite distinction between "idle and disorderly persons," repeat offenders who are "rogues and vagabonds," and "incorrigible rogues"; many laws heightened punishments over their British forebear. And most of these laws still remain in effect.  Zambia's Penal Code, for example, makes any "idle or disorderly person" (including "every person who, without lawful excuse, publicly does any indecent act") liable to a month in prison; a repeat conviction can cause one to "be deemed a rogue and vagabond" with a far steeper sentence.  These categories give the government wide latitude to control public expression (Section 27 of the 1906 public nuisance law in Singapore includes under "rogues and vagabonds" people who show "any obscene print, picture or other indecent exhibition") as well as almost any other conduct in public. (In Zambia, "rogues and vagabonds" include "every person found wandering … in any public place at such time and under such circumstances as lead to the conclusion that such person is there for an illegal or disorderly purpose."[80])

In the colonies, these laws both served the "civilizing mission" and gave police enough power to punish almost any behavior, or people, they wanted. Sexual conduct-or sexualized identities-were among those singled out. The 1899 Sudanese Penal Code is an instructive instance. As noted earlier, this code, unique among British colonial laws, did not punish consensual sodomy.  It compensated, however, by creating a new identity within the "habitual vagabond": the "catamite."   (The Northern Nigeria code also followed this example). The code listed seven types of "vagabonds," one of them the "catamite," defined as a "any male person who 1) dresses or is attired in the fashion of a woman in a public place or 2) practises sodomy as a means of livelihood or as a profession."[81]

A person's clothing became not only criminal in itself, but potentially the sign of a criminal sexual history. One legal commentator clarified that "catamite" meant a "habitual" practitioner of sodomy, adding that "it is not necessary to prove when and where any individual act of this nature occurred."[82] Beyond the person's appearance, no evidence was needed for his (or her) arrest and jailing.

In Europe, vagrancy laws targeted the poor, but rarely had an explicitly racial side.[83]   In the colonies, everything was racial.  These laws regulated the movements, and controlled the conduct, of the non-white population.  In British India, moreover, legislation notoriously marked out whole tribal (and other) groups as intrinsically, unchangeably criminal. The Criminal Tribes Act of 1871 in India, inspired by vagrancy laws, defined certain tribal communities collectively as dacoits, thieves, and undesirables. These provisions are a high-water mark in European legal racism. "Nomadic tribes are invariably addicted to crime," one administrator wrote.[84]   To be born in a community that was listed as a criminal tribe put one under permanent legal disability. All members of criminal tribes had to register individually with the authorities; non-registration could lead to prosecution. Once registered, the tribe member's movements were restricted to authorized areas, and she or he could be arrested if found outside them-or even inside them, if discovered in suspicious circumstances-with a penalty up to three years in prison.[85]

British authorities associated nomadism not only with crime but with sexual immorality. The criminal tribes "implied absolute licentiousness" to the colonizers, one historian notes.[86]  A British administrator's 1914 study monotonously repeats its judgments on one ethnic group after another: "The women of the tribe are notoriously immoral"; "Nearly all the girls of the tribe are reserved for prostitution"; "Immorality is very prevalent"; "The women, from their vagrant life, naturally bear an indifferent character. … Girls have considerable liberty before marriage, and lapses from virtue on their part are not seriously dealt with"; "Their women are all prostitutes." [87]

Along these moralizing lines, authorities amended the Act in 1897 expressly to include "eunuchs" as a notified group. A eunuch was "deemed to include all members of the male sex who admit themselves, or upon medical inspection clearly appear, to be impotent." In practice, this meant India's hijras, presumed to be sexually immoral and guilty of "sodomy."[88]

Hijras-possibly derived from the Urdu word ezra meaning a nomad or wanderer-form a large community of people in India who, born male, live their lives as female or third-gender. In many traditional Indian cultures they had a defined and permitted social niche.[89] Under the statute, though, any "eunuch" who appeared"dressed or ornamented like a woman in a public street … or who dances or plays music or takes part in any public exhibition, in a public street" could be arrested without warrant and imprisoned for up to two years. The law denied eunuchs legal personhood, including the rights to draw up a will or to adopt children. Local authorities had to keep a register of all eunuchs "reasonably suspected" of "committing offences under Section 377 of the Indian Penal Code."[90]

The British considered hijra communities in India a "distasteful nuisance."[91]  Colonial authorities obstructed their traditional rights, including rights to land and money they owned, in villages across India.[92] Anti-begging provisions in vagrancy laws, such as those in the Bombay and Bengal Presidencies, also criminalized the customary social niche of hijras as mendicants. The 1897 amendment-subtitled "An Act for the Registration of Criminal Tribes and Eunuchs"-linked "eunuch" identity to Section 377. It showed how the vagrancy and sodomy provisions stemmed from the same motive: to place not just behaviors, but classes of people, under surveillance and control. Colonial vagrancy laws ultimately made the "personal condition" of being a hijra a criminal offence. One Indian human rights organization observes that

The sexual non-conformity of the eunuch thus earned severe strictures and penalties from the colonial administration.  Being a eunuch was itself a criminal enterprise, with surveillance being the everyday reality.… The role of the police in inflicting violence through and outside the law governed their lives as much as it governed the lives of the former criminal tribes.  However … it is important to note that because of the stigmatized nature of their sexualities, the eunuchs never found a voice in nationalist or subaltern histories.[93]

The categories of the vagrant catamite and criminal eunuch allowed the state to arrest people on the presumption of sodomy, without proof of an actual act. Being, or looking like, a certain kind of person became the basis for harassment, arrest, detention, and abuse.

Forensic Mythologies

"Infundibuliform" means "funnel-shaped." An unusual word, it has been used to describe two things in particular-the shapes of certain flowers, and the anuses of "habitual sodomites." Colonial law, predictably, was more interested in the latter.

Its concern can be seen in one of the first reported cases under Section 377 of the Indian Penal Code to be appealed.  In Queen-Empress v. Khairati[94] in 1884, the sessions judge convicted the anonymous hijra defendant (called only Khairati or beggar)under 377, on the charge "that he, within four months previously to the 15th of June (1883), the exact time it being impossible to state, did in the district of Moradabad abet the offence of sodomy, by allowing some unknown person to commit the offence of sodomy on his person."  Khairati was called a "eunuch," as he "was found singing dressed as a woman among the women of a certain family."

The trial court stated that"he is shown to have the characteristic mark of a habitual catamite - the distortion of the orifice of the anus into the shape of a trumpet … which distinctly points to unnatural intercourse within the last few months." [95]Thus Khairati was not tried for any particular incident of sodomy: the only clue was clothing-substantiated by later medical examination. The lower court stated that "the three facts proved against the accused-his appearance as a woman, the misshapement [of the anus], the venereal disease-irresistibly lead to the conclusion that he has recently subjected himself to unnatural lust." The appeals court set aside the conviction because there was no specificity about the act: time, place, and identity of the "accomplice" were unknown. However, the judge called official attempts at "checking these disgusting practices … laudable."[96]

In Khairati, the first court took the forensic evidence as proof that sodomy definitely had happened at a prior time. Despite the appeals judge's demand for specificity, the authorities' "laudable" medical endeavors would continue-and would gain general acceptance as evidence.

The full impact of sodomy laws cannot be understood by looking at the legal offence alone. Evidentiary requirements to prove the offence of sodomy have helped to establish the state's authority over the suspect body, as well as to create the criminal identity of the homosexual.

All sexual offences give the state unusual power to undertake interventions directly into people's bodies: to determine the occurrence of the offence, to separate truth from false accusation, and often to establish the exact extent to which sexual interaction took place. Thus, for example, forensic medical experts must examine a rape victim-especially in common-law countries-to search for physical injuries or other signs of assault. Forensic doctors also helped establish regimes for the control of sex workers. The various nineteenth-century Contagious Diseases Acts enacted in Britain and throughout its colonies created the category of the "common" or habitual prostitute. Under those acts, women's bodies were subjected to brutal medical exams.  A diagnosis of venereal disease was the equivalent of criminal conviction, and led to jailing.[97]

Forensic medicine in the Victorian era also invented elaborate, imaginary sets of signs to find the "habitual sodomite." As Michel Foucault wrote: "The nineteenth-century homosexual became a personage, a past, a case history, and a childhood … with an indiscreet anatomy and possibly a mysterious physiology."[98]

The French forensic doctor Auguste Ambroise Tardieu published his hugely influential treatise on identifying the prostitute and the "pederast" in 1857. Six infallible signs, he believed, marked out the latter: "the excessive development of the buttocks; the funnel-shaped deformation of the anus; the relaxation of the sphincter; the effacement of the folds, the crests, and the wattles at the circumference of the anus; the extreme dilation of the anal orifice; and ulcerations, hemorrhoids, fistules."[99] In Britain, Glaster's Medical Jurisprudence and Toxicology followed Tardieu: in editions stretching into the twentieth century it proclaimed "an infundibuliform shape of the anus" as a confirmed sign of the passive sodomite.[100]

Human Rights Watch has documented examinations to detect such imaginary deformations, in countries from Egypt to Zimbabwe. They invade bodily privacy.  Conducted without consent in carceral conditions, they are torture. The theories underlying them are medically worthless. Dr. Lorna Martin, professor of forensic pathology at the University of Cape Town, South Africa, told Human Rights Watch that Tardieu's theories are "bizarre and antiquated … rubbish." She added, "It is impossible to detect chronic anal penetration; the only time the [forensic anal] examination could be of any use is for acute non-consensual anal penetration, when certain injuries may be seen."[101] Nonetheless, the fact that they still take place suggests they are important not only for the medical mythology behind them, but because their component elements-the subject's humiliation, and the assertion of the government's power over his body-support, in a drastic and torturous way, the state's policing of sexuality.

Various Indian forensic-medical experts followed the writings of Tardieu and Glaster, adding new parameters based on their own understanding of the "difference" in sodomites's bodies. They claimed the "catamite" or "sodomite" as a scientifically separate manner of person, physically distinct. Ejaz Ahmed, for example, points to the "patulous state of the anus, and the destruction of the folded or puckered state of the skin in this part."[102] Narayan Reddy takes the notion of dilation further and provides a rough sphincterometer, requiring as proof an opening of "4 to 5 cm. in diameter through which rectum can be seen."[103] Another forensic expert moves beyond just the physical signs of penetration to the way the sodomite prepares his appearance. He lists "the shaving of the anal hair but not necessarily the pubic hair" as evidence to impugn a habitual, passive sodomite.[104]

These conjectures by forensic writers are not attempts to document single sexual acts, but to infer life histories and an identity.[105] In the colonial Indian case of D. P Minwalla v. Emperor the defendantused the un-infundibuliform, unmarked character of his anus to maintain he had an un-criminal past. Minwalla was caught in the act of anal sex with another man. To exonerate himself, he submitted to a medical examination to convince the court his anal orifice was not shaped like a funnel. The appeals court confirmed Minwalla's conviction but with a reduced sentence, mindful that the physical examination suggested this had been a momentary lapse rather than a habitual identity.[106]

Much as women's sexual histories can be manipulated to deny them protection in rape cases, the status of a "habitual sodomite" means, in effect, losing the right to refuse consent.[107]  A 1981 case from independent Pakistan is illustrative. Pakistan inherited the Indian Penal Code and retains Section 377; in the 1970s, however, the government's program of Islamizing national law also introduced the offence of zina, which among other things punishes sex between men when coupled with abduction.[108] In Muhammad Din two men were charged with zina for raping another young man at a railway station in Lahore. The medical examination of the accuser, though, found his anus "moderately funnel shaped and he appeared to be a habitual passive agent." Based on this, the court threw out the victim's claim. The view that he willingly participated in sex "received support from the medical evidence that he appeared to be a habitual passive agent." The court thus refused to believe "that the complainant had been kidnapped or abducted for the purpose of subjecting him to unnatural lust." It dropped the charge of zina.[109]

[73] William J. Chambliss, "A Sociological Analysis of the Law of Vagrancy," in John Galliher, ed., Deviant Behavior and Human Rights, (New Jersey: Prentice Hall, 1964), p. 116.

[74] Forrest W. Lacey, "Vagrancy and other Crimes of Personal Condition," Harvard Law Review, Vol. 66, No. 7 (May 1953), p. 1203.

[75] Ibid. See also Arthur H. Sherry, "Vagrants, Rogues and Vagabonds: Old Concepts in Need of Revision," California Law Review, Vol. 48, No. 4 (1960), pp. 557-580.

[76] Robert Jutte, Poverty and Deviance in Early Modern Europe (Cambridge: Cambridge University, 1994); Robert Forster and Orest Ranum, eds., Deviants and the Abandoned in French Society: Selections from the Annales, Economies, Societes, Civilisations, Vol. 4, trans. Elborg Forster and Patricia M. Ranum (Baltimore: Johns Hopkins, 1978); Thomas McStay Adams, Bureaucrats and Beggars: French Social Policy in the Age of the Enlightenment (Oxford: Oxford University, 1990).

[77] Angus Fraser, The Gypsies (London: Blackwell, 1995), p. 134.

[78] "Vagrancy," Encyclopedia Britannica, Eleventh Edition, 1911; Lionel Rose, "Rogues and Vagabonds": The Vagrant Underworld in Britain, 1815-1985 (London: Routledge, 1988).

[79] Karl M Bowman and Berenice Engle, "A Psychiatric Evaluation of Laws of Homosexuality," The American Journal of Psychiatry, Vol. 112 (February, 1956), p. 577-583.

[80] Long 2003, p. 277.

[81] Sec 448 (2) (e), Sudanese Penal Code.

[82] Gledhill, p. 749.

[83] The signal exception was their use against Roma and Sinti populations, or Gypsies.

[84] S.T. Hollins, The Criminal Tribes in India (1914),  [JS: what's "rpt"?] (Delhi: Nidhi Book Centre, 2005), p. 56.

[85] Arvind Narrain, Queer: Despised Sexuality, Law, and Social Change (Bangalore: Books for Change, 2004), pp. 58-59.

[86] Meena Radhakrishna, Dishonoured by History:"Criminal Tribes" and British Colonial Policy (New Delhi: Orient Longman, 2001), p. 15.

[87] Hollins, pp. 30, 23, 40, 49, and 64.

[88] Cited in Human Rights Violations against the Transgender Community: A Study of Kothi and Hijra Sex Workers in Bangalore, India, a report by People's Union for Civil Liberties, Karnataka (PUCL-K), September 2003, pp. 44-45, and Gayatri Reddy, With Respect to Sex: Negotiating Hijra Identity in South India (Chicago: University of Chicago, 2005). "Eunuch" in European culture and law meant a castrated male; some though hardly all Indian hijras  had removed their male genitals in whole or in part.  The general category of "impotence" in these laws, however, seemed meant to embrace any biological men who abjured "active" male sexual functioning.

[89]Human Rights Violations against the Transgender Community, pp. 44-45.

[90]  Ibid.

[91]  Laurence W Preston, "A Right to Exist: Eunuchs and the State in Nineteenth Century India," Modern Asian Studies, Vol. 21, No.2 (1987), pp. 371-87.

[92] Ibid.

[93]Human Rights Violations Against the Transgender Community, pp. 45-46.

[94]Queen-Empress v. Khairati , 1884 Indian Law Report, Vol. 6, Allahabad High Court 204, p.  602.

[95]Khairati, p. 602, emphasis added.

[96] Ibid.

[97]  See Judith R. Walkowitz, Prostitution and Victorian Society: Women, Class, and the State (Cambridge: Cambridge University, 1980).

[98]Michel Foucault, The History of Sexuality, Vol. 1 (London: Penguin, 1976), p. 42.

[99] Auguste Ambroise Tardieu, Etude Medico-Legale sur les Attentats aux Moeurs (Forensic Study of Assaults against Decency) 3rd Edition, (Paris: J. B. Bailliere, 1859), pp. 142-3; translation for Human Rights Watch by Scott Long.

[100] J. Glaster, Medical Jurisprudence and Toxicology, Eleventh Edition (Edinburgh: Livingston, 1950) p. 259.

[101] E-mail communication to Scott Long, Human Rights Watch, from Dr. Lorna Martin, July 23, 2003. Dr. Robert Nye, a historian of sexology, told Human Rights Watch that "The famous six 'signs' of passive sodomy were questioned and disregarded by the very next generation of forensic doctors and sexologists." He called Tardieu "utterly discredited," and the examinations "horrific in the extreme." E-mail communication to Scott Long, Human Rights Watch, from Professor Robert Nye, Department of History, Oregon State University, July 18, 2003. Both are quoted in In A Time of Torture: The Assault on Justice in Egypt's Crackdown on Homosexual Conduct, a Human Rights Watch report, 2004. For a survey of the medical and legal implications of the exams, see Scott Long, "When Doctors Torture: The Anus and the State in Egypt and Beyond," Health and Human Rights: An International Journal,Vol. 7, No. 2 (2004), pp. 114-40.

[102]Ejaz Ahmed, Sexual Offences, second edition (Hyderabad: Ashok Law House, 1980), p. 736. See also Modi's Medical Jurisprudence and Toxicology, 22nd edition, ed. B.V. Subramanyam (New Delhi: Butterworths India, 1999), pp. 521-533, and S.N. Gour, Lyon's Medical Jurisprudence for India, 10th edition, (Allahabad: Law Publishers India Pvt. Ltd., 1988), pp. 482-488.

[103] K. S. Narayan Reddy, Essentials of Forensic Medicine and Toxicology  (Hyderabad: K. Suguna Devi, 2003), p. 212.

[104] R.L. Gupta, Medico-Legal Aspects of Sexual Offences (Lucknow: Eastern Book Company, 1991), p. 414.

[105] Moran 1995, p. 34.

[106]D. P Minwalla v. Emperor , 1935 All India Report,  High Court of Sind, p. 78.

[107] The permanent legal minority that British colonial law imposed on hijras or "eunuchs," denied even the capacity to make a will, is perhaps a parallel.

[108] The Offence of Zina (Enforcement Of Hudood) Ordinance, 1979, Sec  12: "Kidnapping or abducting in order to subject person to unnatural lust: Whoever kidnaps or abducts any person in order that such person may be subjected, or may, be so disposed of as to be put in danger of being subjected, to the unnatural lust of any person, or knowing it to be likely that such person will be so subjected or disposed of, shall be punished with death or rigorous imprisonment for a term which may extend to twenty-five years."

[109]Muhammad Din v. The State,  1981 All Pakistan Law Decisions,  Federal Supreme Court, p. 191. The case was then tried under Pakistan's version of Sec 377.