December 17, 2008

IV. Interpreting Sodomy Laws: The Scope Expands

Forensic medical exams display the particularity to which the state descends when it tries to parse out the specifics and the evidence of sexual acts. The story of how courts in the colonial period and beyond interpreted the various versions of Section 377 also shows state authorities stuck in morasses of sexual detail. Together, they exhibit the logical gymnastics states get into in defining the line between permissible and punishable sexual acts-and trying to keep a rationale for the distinction.

One distinction that never mattered much, in "unnatural offences," was the axis of consent. Most of the surviving jurisprudence under colonialism and since independence (what reached the law reports were largely cases on appeal, undoubtedly representing only a fraction of convictions) deals with charges of non-consensual sodomy.  Nearly universally-as one Zimbabwean legal expert writes-the fact that "an assault (possibly violent) has taken place is of secondary importance" to the court.[110]  The law's silence on consent translates into judges' indifference to the victim.  It also reaffirms that "the non-existence of a victim," where there was consent, is no hindrance to prosecution. [111]

This chapter will show:

  • First, investigating the details of sexual acts led to further expanding the scope of acts covered by Section 377. The law came to recognize broader categories of "sexual perversion," and while that extended into acts committed by heterosexual couples, the "sodomite" or "catamite" or "homosexual" was at the center of its meaning.
  • Second, Section 377's failure to distinguish consensual from non-consensual acts, or to offer separate protection to minors from abuse, led to identifying "homosexuality" with other violent sex crimes-intensifying the legal stigma.
  • Third, British law never punished sex between women-and hence British colonialism never imported criminal penalties for it. However, the breadth of the British "gross indecency" provision has given states an opening to penalize lesbians as well.

Jurisprudence: From "Crimes against Nature" to Communal Values

In 1930s India, police captured a young man called Ratansi while he and another man were trying to have sex. In court, Ratansi did not deny it. The furious judge called him a "despicable specimen of humanity," addicted to the "vice of a catamite" on his own admission.[112] It was not just the act in isolation that appalled the court: it was the contemptible class of person. Yet the judge could not punish the two accused: they were caught before they could finish the act.  A gap yawned between his repulsion at the arrested men, and the evidentiary limits his understanding of the statute demanded. Conviction required penetration, and physical or other proof.

Much of the later jurisprudence around Section 377, in the many places where it was enforced, would try to close that gap: to re-draw the sexual map of "immorality" and cram a sufficiently wide range of acts within the criminal compass, so that no "despicable specimen of humanity" would be acquitted. What counted as "unnatural" and, as one commentator observes, "what counted as penetration continued to be an ongoing, arbitrary, and unsystematic discussion" across courts and countries.[113]

"Carnal intercourse against the order of nature" had never been precisely defined.  One of the first Indian cases to reach the law reports on appeal, though, reflected what was probably the usual judicial understanding. The phrase meant anal sex, since "the act must be in that part where sodomy is usually committed."[114]

The 1925 Indian case of Khanu v. Emperor[115] took the first step toward redrawing the boundaries of Section 377. It became, for a long time, the guiding judgment on interpreting 377 through British colonies in South Asia, East Asia, and East Africa. The case involved forcible oral sex between an adult male and a minor. The non-consensual nature of the act played no role in the appeals decision. The only question that concerned the court was whether oral sex was an unnatural carnal offence under Section 377.

Khanu said yes.  377 was not limited to anal sex.[116]  It cited two lines of reasoning.

The first defined the order of nature in sex as "the possibility of conception of human beings": oral sex was legally like anal sex in that it was not reproductive. The colonial court's complete divorce from the Indian context-its reliance on purely European traditions of sexual propriety, which conflated nature with procreation-could not have been clearer. Nor did the court consider that other forms of penetrative sex (for instance, using birth control) also foreclosed the "possibility of conception." [117]

The second line of thinking redefined penetration.  The court defined "carnal intercourse" as

a temporary visitation to one organism by a member of the other organism, for certain clearly defined and limited objects. The primary object of the visiting organism is to obtain euphoria by means of a detente of the nerves consequent on the sexual crisis. But there is no intercourse unless the visiting member is enveloped at least partially by the visited organism, for intercourse connotes reciprocity.[118]

As long as there is an orifice (the mouth) to enclose the "visiting member," there can be carnal intercourse.  When it cannot lead to procreation, there is an "unnatural offence."[119]

Khanu opened the way to bringing other acts under the scope of Section 377. For example, a 1961 case from East Pakistan(present-day Bangladesh) found that the identical provision in the Pakistan Penal Code criminalized what it called "thigh sex."[120] The court followed the penetration-specific definition of Khanu and held that "the entry of the male organ of the accused into the artificial cavity between the thighs of [the other partner] would mean penetration and would amount to carnal intercourse."

The post-independence Indian case of Lohana Vasantlal also followed and modified the Khanu decision.[121] On the facts, much like Khanu, it involved three men who forced an underage boy to have anal and oral sex with them. However, the judgment neglects the injury caused to the boy who was forced to undergo the sexual act: there is no discussion of coercion. Instead the court concentrated on including oral sex under 377.  As with other appealed cases involving coerced sex, the court's reasoning would apply seamlessly to consensual acts.

Lohana Vasantlal agreed with Khanu in finding oral sex unnatural: the "orifice of the mouth is not according to nature meant for sexual or carnal intercourse."[122] The court applied two tests.  Its main source, tellingly, came from the UK: the eminent British sexologist Havelock Ellis. Following him, it argued that oral sex might be permissible if it was part of foreplay leading to "natural" (vaginal) sex: "If the stage of the aforesaid act was for stimulating the sex urge, it may be urged that it was only a prelude to carnal intercourse."[123] However, again citing Ellis, it found that when forms of sex play cease being "aids to tumescence" and "replace the desire of coitus," then "They became deviations … and thus liable to be termed 'perversions.'"[124]  The Lohana court also developed an "imitative test" for sex acts. For example, oral sex imitated anal sex in terms of penetration, orifice, enclosure, and sexual pleasure.  Therefore it could also be punished under Section 377.

K. Govindan, a 1969 Indian case, used the "imitative test" from Lohana to arrive at the same conclusion as the court in former East Pakistanon "thigh sex": if "the male organ is 'inserted' or 'thrust' between the thighs, there is 'penetration' to constitute unnatural offence."[125]

The judge in Khanu had said, "I doubt if mutual cheirourgia would be" a form of "carnal intercourse"-turning to Greek to dredge up a euphemism for masturbation.[126]   However, a court moved mutual masturbation under the ambit of Section 377 in the Indian case of Brother John Antony v. State[127]in 1992. In this case, again, allegations of coercion were of no interest to the court. The judgment instead delves into the "sexually perverse," analyzing and analogizing practices like "tribadism," "bestiality," "masochism," "fetichism," "exhibitionism," and "sadism."[128] Using the imitative test, it concluded that mutual masturbation falls within 377, as "the male organ of the petitioner is said to be held tight by the hands of the victims, creating an orifice-like thing for manipulation and movement of the penis by way of insertion and withdrawal."[129]

In Singapore, two cases from the 1990's-PP v. Tan Kuan Meng[130]and PP v. Kwan Kwong Weng[131] -followed the distinction (between "prelude to" and "substitute for" the act of "natural" sex) that Lohana had laid down. Each of these 377 trials involved a woman's allegation that a man had forced her to have oral sex. The court in Kwan Kwong Weng defined the crime as "fellatio between a man and woman, whether the woman consented or not, which was totally irrelevant."[132]

Kwan Kwong Weng weighed current mores among heterosexuals, taking note of "statistical evidence … of these forms of oral sex being practised in Singapore. We cannot shut our minds to it."[133]  The court granted "it is a fact of life that foreplay occurs before copulation." And it held that "when couples engaged in consensual sexual intercourse willingly indulge in fellatio and cunnilingus as a stimulant to their respective sexual urges, neither act can be considered to be against the order of nature. In every other instance the act ... will be ... punishable." [134]

Heterosexual oral sex was thus like a middling restaurant in the motorists' guide: worth a detour, but never, ever deserving a journey in itself. Heterosexuals, though, had a legal leeway for oral sex that was denied to homosexuals. They could claim that "natural," vaginal sex was somewhere off in distant view, the long-planned destination after a diversion to a different orifice.

However, both Lohana and Kwan Kwong Weng subtly undermined the foundations of the old Khanu ruling, by quietly discarding the "procreation" justification. The judge in Kwan Kwong Weng accepted implicitly (as the statistics before the Singapore court suggested) that people have sex for pleasure in and of itself–a major judicial concession.

This opened again the question: how confidently can the law distinguish between "natural" and "unnatural"? The lack of a self-evident standard in the Kwan Kwong Weng case ultimately led to a renewed push in Singapore for reforming the colonial-era provision.  That push was given force by more prosecutions of heterosexuals for oral sex.  In 2004, Singapore courts sentenced a former policeman to two years in prison for having oral sex with a teenage girl.[135] One judge spoke of "certain offences that are so repulsive in Asian culture … There are countries where you can go and suck away for all you are worth. People in high places do it for all they're worth. I'm not an expert, but you read about it in the papers. But this is Asia."[136]

"Asia" was not as conservative as the judge thought. Criminalizing homosexual acts was one thing; criminalizing heterosexual acts by now sparked outrage. Press and public opinion rebelled at the presumption that straight "sucking" was alien to Singapore. Under pressure, the government launched a review of the law. Officials said from the beginning it would aim to decriminalize consensual oral sex between men and women, but leave all oral sex between men banned.[137]

That was what happened. The review eventually turned into a revision of the entire Penal Code; but homosexual conduct was the only real dispute. The government willingly discarded the "carnal intercourse" provision of the law, which included heterosexual conduct. A battle line formed, though, at Section 377A-the old Labouchere Amendment text, criminalizing "gross indecency" between men.   Human rights activists launched a petition to eliminate the ban on consensual homosexual conduct, as well as liberating heterosexuals; it gained thousands of signatures. LGBT advocates courageously joined in public debate. Yet in 2007, the government at last determined to cling to Section 377A.

Prime Minister Lee Hsien Loong voiced personal sympathy for gay citizens: "We … do not want them to leave Singapore to go to more congenial places to live." But, he added, "homosexuals should not set the tone for Singapore society":

Singapore is basically a conservative society. The family is the basic building block of our society. It has been so and, by policy, we have reinforced this and we want to keep it so. And by "family" in Singapore, we mean one man one woman, marrying, having children and bringing up children within that framework of a stable family unit.[138]

Despite the reference to procreation, one thing was clear in the debate: the criterion of "nature" had basically been thrown out the window. If heterosexual oral sex could be legally seen as natural in itself-despite its lack of any connection to "having children"-there was no coherent basis for calling oral sex between two men "unnatural."[139] One commentator wrote,

I am especially suspicious of arguments that resort to "nature"; these have had an appalling history in justifying racism, sexism, xenophobia and homophobia, leading to the murder and torture of millions of people.  What is natural?  You might say that transplanting A's kidneys into B's body is unnatural. The fact that an act is or isn't natural is not a good reason to make it a criminal offence. [140]

Even the most virulent defenders of Section 377A argued not by appealing to the "natural," but by theorizing about community values.  One parliamentarian declaimed,

If we seek to copy the sexual libertine ethos of the wild wild West, then repealing s377A is progressive. But that is not our final destination. The onus is on those seeking repeal to prove this will not harm society. … We have no need of foreign or neo-colonial moral imperialism in matters of fundamental morality. Heterosexual sodomy unlike homosexual sodomy does not undermine the understanding of heterosexuality as the preferred social norm.[141]

Yet relying on a "preferred social norm" actually undermined the original foundations of the law,  based on belief that "sodomy" was "against the order of nature," not just the order of a particular society. And-most importantly-foreign "moral imperialism in matters of fundamental morality" was exactly what had brought the law to Singapore in the first place.

The Singapore story tears off the mask. It shows that Section 377's central focus, despite the heterosexual acts it had always punished, lay in eliminating homosexual conduct. It also shows, though, how tenuous the case for that purpose had become.   "Nature" was no longer a credible justification.  The mores of particular societies were all that was left. As a Malaysian court had declared in 1979 (addressing a wife's claim that her husband had sexual relations with other men): "Such despicable conduct though permitted among some Westerners should not be allowed to corrupt the community's way of life."[142]

Of course, the governments of Singapore and Malaysia, both politically repressive states, had only limited interest in listening to that "community," or actually testing its values.[143] Elsewhere too, though, invoking a vague set of "national" or "cultural" norms became the main defense of the colonial-era sodomy laws. To the colonizers, laws on sex were needed because the "native" was corrupt and an enticement to moral corruption. Now it was the West that threatened to corrupt indigenous standards.

A 1999 verdict from Zambia indicates how sour and weak the argument around "nature" had turned, and at the same time how unconvincing the appeal to popular beliefs could be. The judge in a local court, faced with charges that a man had oral sex with other men, approached them through a muddle of theology and anatomy:

Surely the mouth is not the same as a vagina.   God gave specific functions to each organ … The mouth is for eating etc., and the vagina is for both sex and urinating. … Accused couldn't change God's desire.   For behaving in the way he did, he implied God made a mistake [in] his distribution of functions.

Yet the conclusive factor for the judge, as he studied the accusation under a British law brought to Zambian territory by colonial invaders less than a hundred years before, was:  "Accused's behavior is alien to the African custom."[144]

Ignoring Rape, Intensifying Stigma

Consent in the British colonial anti-sodomy laws is irrelevant. In a 1982 sodomy case, the court stated it clearly: "This is one of the offences to which a victim cannot consent."[145]  Or, as an Indian court explained, "consent of the victim is immaterial" under Section 377, simply because "unnatural carnal intercourse is abhorred by civilized society."[146]

These laws, in their original form, are thus completely silent about male-male rape. One sinister effect has been to place the victims of such rape under the same legal stigma as people who engage in consensual homosexual acts-or as the rapists.   Sometimes, people who have suffered sexual abuse have confronted criminal punishment themselves.

In a 1973 Papua New Guinea case, a man filed a complaint against his employer for committing "sodomy" on him. He ended up convicted himself, as an accomplice. The court believed he had "allowed" himself to be sodomized, fearing he would lose his job if he protested.[147]

The court relied on a 1952 British decision that had determined "the offence of buggery whether with man or beast does not depend upon consent; it depends on the act and if an act of buggery is committed, the felony is committed."[148] Justice Prentice, writing a separate concurring judgment, stated that the word "permit" does not necessarily imply consent, but can simply mean "that once a person allowed, suffered or did not prevent … intercourse, having perceived what was about to take place-the character of the act-he would be committing an offence."[149] The Justice also made clear that protecting individuals was not the provision's purpose.  "Buggery," he wrote, "is one of the offences of sexual indecency which modern text writers see as not designed so much for private protection as for the enforcement of officially received opinions on particular aspects of sexual morality."

In practice, most courts probably do accept lack of consent as a defense. A Ugandan commentary clarifies, "all participants in unnatural offences are perpetrators, unless any of them is not a consenting party."[150] However exceptional, the Papua New Guinea ruling still shows the sheer travesties of justice the law's muteness around consent can generate.

Courts dealing with cases of non-consensual "sodomy" continue to show little or no interest in the plight of the victim-only the unnaturalness of the act.[151] And this legal lacuna leads to media and popular opinion regularly mixing "sodomy" up with rape.  In Zimbabwe-where the law is similar-one activist says "the angle of articles" in the press about consensual sodomy arrests "is always … as far as possible to suggest that abuse was involved."[152]

Malaysia, as recounted below, has tried to address these injustices by separating non-consensual "carnal knowledge against nature" from consensual acts in the Penal Code. (The punishment for the two, however, remains effectively the same.) In country after country, however, British-derived laws continue to restrict the definition of rape to forcible insertion of a man's penis in a woman's vagina.  India's courts (both before and after independence) in Khanu, Lohana, and K. Govindan have widely expanded the scope of "sodomy": but judges have refused to extend the meaning of rape to make it gender-neutral.[153]

In fact, as will be seen below, campaigns in Malaysia, Sri Lanka, and Botswana that meant to create a gender-neutral definition of rape ended with lawmakers re-defining "unnatural offences" to include sex between women. Meanwhile, legislators have repeatedly denied demands by women's rights activists to criminalize marital rape. Once again the heterosexual marital sphere has been placed beyond the law's reach-both for consensual "unnatural" acts and for rape itself.[154]

Equating consensual and coercive acts, and the lack of any separate punishment for same-sex acts with children, together deepen the stigma around homosexuality. The colonial court in Khanu hadconflated pedophilia with consensual homosexual conduct between adults. It claimed "the danger to young persons, lest they be indoctrinated into sexual matters prematurely," as an important justification for anti-sodomy laws.  The idea lives on.  India's Home Ministry has warned that "Removal of Section 377 will open floodgates of delinquent behaviour."[155] The Indian petition against 377 asks only that the High Court reinterpret the provision to decriminalize consensual sex between adults-and leave standing the protection of male children against abuse. Nonetheless, a senior Law Ministry official defended the whole law, saying the Section "acts as an effective deterrent against paedophiles and those with sick minds."[156]

Independent India's Supreme Court has held that an offence under 377 implies "sexual perversity."[157] This lends authority to linking homosexuality indiscriminately with almost any kind of "perversion." As far back as 1958, a judge in colonial Malaysia identified "sodomy" with sadomasochism, stating that "In view of the well-known psychological connection between the giving and the suffering of pain and sexual perversion, a sentence of whipping is not a suitable punishment for such offence."[158] An Indian court in 2001 alleged the "perversity" that leads to sexual offences may result either in "homosexuality or in the commission of rape."[159]

"Gross Indecency" and Criminalizing Lesbians

 "Gross indecency" in British-derived penal codes is highly elastic. A Singapore Court has stated its meaning depends "on what would be considered grossly indecent by any right-thinking member of the public."[160] Just slightly more specifically, a 1998 amendment to the Tanzanian Penal Code clarified that gross indecency included any act that "falls short of actual intercourse and may include masturbation and indecent behaviour without any physical contact."[161] Thus two men kissing, holding hands, sleeping together, or conceivably even looking at one another with sexual intent, could break the law.

On the one hand, "gross indecency," like its British ancestor the Labouchere Amendment, only targets acts between men-as opposed to "carnal knowledge," which could, at least as originally interpreted, also include heterosexual acts.   On the other, unlike "carnal knowledge," gross indecency does not entail penetration. In practice it was used to root out men who have sex with men who were caught in non-sexual circumstances, allowing arrests wherever they gathered or met-parks and railway stations, bathhouses and bars, and private homes and spaces.   And unlike "carnal knowledge," the absence of penetration meant a lower standard of proof.   No forensic tests or flower-shaped anuses were needed.

The usefulness of "gross indecency" in convicting men for homosexual conduct comes clear in the 1946 Singapore case of Captain Marr.[162]  A naval officer faced charges of committing gross indecency with an Indian man. There were no witnesses, but police found the Indian's shirt in the captain's room. Such circumstantial evidence persuaded the court to convict.

The authorities are free to infer "gross indecency" from any suspicious activity.  The term is insidious, a legal bridge between "unnatural" sexual acts and the associated identity of a certain kind of person: the "homosexual" as a criminal offender.  Homosexuality becomes a crime of the "personal condition." This broader understanding of "unnatural acts" permits state and police harassment on a wider scale. A homosexual need not be caught in the act: presumptions fed by prejudice, or stereotypes of attire, manner, or association, are enough.[163]

"Gross indecency" has been used to extend criminal penalties to sex between women. Lesbian sex had never been expressly punished in English law. The colonial court in Khanu excluded it from "carnal knowledge" because a woman lacked a penis.  A recent Ugandan commentary explains that "women who perform sexual acts on each other are not caught by the current law because they do not possess a sexual organ with which to penetrate each other."[164]  Non-penetrative sex is not "real" sex.[165]

Between men, however, it was seen as something sex-like enough to be "grossly indecent."  There was no reason the same logic could not extend to women. Some modern governments did want lesbian acts and identities moved under the criminal law. They found their chance through public debate about reforming rape laws.

In the late 1980s the Malaysian women's movement campaigned for a new, gender-neutral definition of rape, as well as for criminalizing marital rape.[166] Partially in response to their lobbying, the legislature in 1989 moved to amend the Penal Code.[167]

In the end, however, legislators ignored the calls to modernize law on rape, and instead turned their scrutiny to Section 377.  Their comprehensive re-write divided the Section into five different parts, while broadening its meaning and reach more than ever before. Their excuse? They could make rape effectively gender-neutral by adding a new crime of non-consensual "carnal intercourse against the order of nature."[168]  The new provision also offered limited protection for children against sexual abuse.[169] But the two most significant changes were:

oFor the first time in a British-derived legislative provision, "carnal intercourse" was expressly defined as both anal and oral sex.

oIn a vengeful and almost parodic response to the demands of women's rights activists, the offence of "gross indecency" was made gender-neutral.[170]  It could now be applied to heterosexual couples-and also to lesbian and bisexual women. [171]

A similar, regressive rape law change occurred in Sri Lanka.  Falling back on religious and communal values, the state rejected women's rights activists'demands to legalize abortion, criminalize marital rape, and make the crime of rape gender-neutral.  However, it did amend the "gross indecency" provision to make it gender-neutral and apply to sex between women.[172]

Meanwhile, in Botswana, legislators put gender-neutral language in both the "carnal knowledge" and "gross indecency" provisions of the British-derived Penal Code, in a general revision aiming at gender equity in 1998.[173]

[110] Oliver Phillips, Sexual Offences in Zimbabwe: Fetishisms of Procreation, Perversion and Individual Autonomy  (unpublished Ph.D. thesis, University of Cambridge, July 1999), p. 193. 

[111] Ibid. 

[112]Noshirwan v. Emperor , 1934 All India Report, High Court of Sind, p. 206

[113] Suparna Bhaskaran, "The Politics of Penetration: Section 377 of the Indian Penal Code," in Ruth Vanita, ed., Queering India: Same-Sex Love and Eroticism in Indian Culture and Society (London: Routledge, 2002), p. 20.

[114]Government v. Bapoji Bhatt , 1884 Mysore Law Report, Vol. 7, p.  280.  The appellant was charged under Sec 377 on allegations of oral sex with a minor.

[115]Khanu v. Emperor,  1925 High Court of Sind, p. 286.

[116] Ibid.

[117] At the same time the colonial court in Khanu defined "unnatural" sex as non-procreative sex, contraception was legal in Britain. Marie Stopes opened Britain's first family planning clinic in 1921, four years before Khanu. Birth control had never been criminalized in the home country, though distributing information on contraception risked obscenity charges through the 19th century: see Kristen Brandser,  "Law, Literature, and Libel: Victorian Censorship of 'Dirty Filthy' Books on Birth Control," paper presented at the meeting of the Law and Society Association, Chicago, Illinois, May 27, 2004. 

[118]Khanu, p. 286.

[119] Ibid. The Khanu court still found oral sex "less pernicious than the sin of Sodom." Its peculiar reasons were that "It cannot be practiced on persons who are unwilling. It is not common and can never be so"-and, most notably, "it cannot produce the physical changes which the other vice produces."

[120]Muhammad Ali v. The State, 1961 All Pakistan Law Decisions, High Court of Dacca, p. 447.

[121]Lohana Vasantlal Devchand  v. The State , 1968 All India Report, High Court of Gujarat, p.  252.

[122] Ibid.

[123] Ibid.

[124] Ibid.

[125]State of Kerala v. K. Govindan,  Criminal Law Journal  (1969),  818 p. 20.

[126] Khanu at 286. Cheirourgia, in Greek, means "work done by hands."

[127]Brother John Antony v. State,Criminal Law Journal (1992), 124 p. 1352.  The case involved charges of oral sex and mutual masturbation against a  boarding school teacher.

[128] Ibid., p. 1353.  

[129] Ibid.

[130]PP v. Tan Kuan Meng , 1996 Singapore High Court, p. 16.

[131]PP v. Kwan Kwong Weng,  1997 Singapore Law Report, Vol. 1, p. 697.

[132] Ibid. para 12.

[133] Ibid. para 30.

[134] Ibid. para 28.

[135] First press accounts suggested that she was 16, above the legal age of consent for (vaginal) sex, and had consented. Later reports, however, suggested she was 15. "Singapore Reviews Oral Sex Law," BBC News, January 6,  2004;

[136] Quoted in Mark Baker, "No Oral Sex Please, This Is Clean-Living Singapore," Sydney Morning Herald (Australia), February 18, 2004.

[137]Chan, "Oral Sex - A Case of Criminality or Morality?"

[138] "Lee Hsien Loong's Speech on Section 377A," www.yawningbread.org/apdx_2007/imp-360.htm(accessed August 25, 2008).

[139] Lee Kuan Yew, the powerful former prime minister, made the shift from nature-based to culture-based arguments explicit, telling supporters: "You take this business of homosexuality. It raises tempers all over the world, and even in America. If in fact it is true -- and I have asked doctors this -- that you are genetically born a homosexual because that's the nature of the genetic random transmission of genes, you can't help it. So why should we criminalise it? But," he went on, "there's such a strong inhibition in all societies …" Straits Times, April 23, 2007, quoted in "The Oracle from St. James," www.yawningbread.org/arch_2007/yax-734.htm (accessed November 15, 2008).

[140] Paul Tan Beng Hwee, "Oral sex law demeans the individual," Straits Times, November 10, 2003.

[141] "377A serves public morality : NMP Thio Li-Ann," The Online Citizen, October 23, 2007, http://theonlinecitizen.com/2007/10/377a-serves-public-morality-nmp-thio-li-ann/ (accessed August 15, 2008). She also warned ominously, "To those who say that 377A penalizes only gays not lesbians, note there have been calls to criminalize lesbianism too."

[142]Lim Hui Lian v. CM Huddlestan , 1979 Malayan Law Journal, Vol. 2, p. 134.

[143] The only statistical study regularly cited in the debate showed a high level of negative feeling among Singaporeans about homosexuality per se, but did not ask whether they wanted those opinions translated into criminal penalties: Benjamin H. Detenber, Mark Cenite, Moses K. Y. Ku, Carol P. L. Ong, Hazel Y. Tong, and Magdalene L. H. Yeow, "Singaporeans' Attitudes toward Lesbians and Gay Men and their Tolerance of Media Portrayals of Homosexuality," International Journal of Public Opinion Research , Vol. 19, No. 3 (July 2007), pp. 367-79.  See also Kenneth Chan, "Gay Sexuality in Singaporean Chinese Popular Culture: Where Have All the Boys Gone?" China Information, Vol. 22, No. 2 (July2008), pp. 305 -29.

[144] Quoted in More than a Name: State-Sponsored Homophobia and Its Consequences in Southern Africa, pp. 91-92.

[145]State v Bakobaro, 1982 Nigerian Criminal Report, Vol. 1, p. 110.

[146]Mihir v State of Orissa, 1992 Criminal Law Journal, p. 488.

[147]Regina v. MK, 1973 Papua New Guinea Law Report, p. 204.

[148]Sydney Joseph Bourne, 1952 Criminal Appeals Report, Vol. 36, p. 125 (United Kingdom).  The law of Papua New Guinea derived from the Queensland Penal Code, which expressly punished anyone who "permits a male person to have carnal knowledge of him … against the order of nature."

[149] Regina v. MK, Prentice J.

[150] D. D. N. Nsereko, "Uganda," International Encyclopaedia of Laws , "Criminal Laws," Vol. 4, Part 1, ch. 7 ("Particular Crimes"), para. 385 (Leyden: Kluwer Law International, 2006), emphasis added.

[151] See, for instance, Calvin Francis v. State of Orissa,  1992 Crimes Report, Vol. 2, p. 455 and State of Gujarat v. Bachmiya Musamiya , 1998 Gujarat Law Report, Vol. 2, p.  2456.

[152] Keith Goddard, director, Gays and Lesbians of Zimbabwe, quoted in Long 2003, p. 289.

[153]Sakshi v. Union of India,  2004 Supreme Court Cases, Vol. 5, p. 518.

[154] The very definition of "consent" is a point of deep political division in India.   Secs 375 and 376 of the IPC, which deal with rape, have accumulated jurisprudence around what "consent" means which, even after independence, reflects Victorian presumptions about women's purity.  In a famous 1970s case in Maharashtra, two policemen raped a 16-year-old tribal girl in their station.  A local court acquitted the policeman, holding that since the girl had already eloped with her boyfriend, she was "habituated" to intercourse, had implicitly consented-and could not be raped. A high court decision overturned this ruling, and tried to elaborate a distinction between consent on the one hand, or passive submission or helpless surrender due to threat on the other. The Supreme Court overruled the high court and set aside the conviction, holding in effect (similarly to the Papua New Guinea ruling, above) that passive submission was the equivalent of consent.  

     The case triggered a women's rights campaign to reduce the high standard requiring a rape victim to prove "beyond reasonable doubt" that she had not consented. Advocates demanded that a woman's retrospective claim that she had not consented be given evidentiary force.  Partial criminal law reforms in 1983 accepted this standard but only for rape in custodial settings such as jails.  During the debate in the Lok Sabha (Parliament), MPs revealed some of the society's underlying attitudes about women's sexuality and how to "protect" and control it.  At one extreme-suggesting some women merited no protection-one speaker said, "We're not dealing all the time with virtuous women.  We may also deal with some women who unfortunately do not conform to normal standards of womanhood."  At another extreme-of repression masquerading as protection-another MP suggested classing any sexual relationship between an unmarried woman and a man as rape, which he claimed would be consistent with "our own sexual morality." Quoted in Nivedita Menon, "Embodying the Self: Feminism, Sexual Violence, and the Law," in Partha Chatterjee and Pradeep Jeganathan, eds., Community, Gender, and Violence: Subaltern Studies XI (New York: Columbia University, 2000).   See also Flavia Agnes, Journey to Justice (Bombay: Majlis, 1990).

     Women's rights advocates maintain the Indian judiciary is still rife with the belief that some women-"lewd" or of "questionable character"-deserve no protection against sexual violence.  See Oishik Sircar, "Women Make Demands, but Only Ladies Get Protection," at http://infochangeindia.org/index2.php?option=com_content&do_pdf=1&id=5621, (accessed August 21, 2008).  The conflicting standards are conspicuous: no man can consent to "sodomy," but some women cannot deny consent to any sexual act.  

[155] Nagendar Sharma, "Gays Have No Legal Rights: Ministry," Hindustan Times, August 28, 2008.

[156] Ibid.

[157]Fazal Rab Choudhary v. State  of Bihar, 1983 All India Report (Supreme Court), p. 323 .

[158]  Ahmad Bin Hassan v Public Prosecutor , 1958 Malayan Law Journal, Vol. 1, p. 186 (Court of Appeal).

[159]Pooran Ram v. State of Rajasthan,  2001 Criminal Law Journal, p. 91at para. 31.

[160]NG Huat v. PP , 1995 Singapore Law Report, Vol. 2, p.  783:an X-ray technician was charged with "gross indecency" for allegedly touching the chest, nipples and buttocks of a patient.

[161] Sec 3 of the Sexual Offences Special Provisions Act (Act no. 4 of 1998), passed by the Parliament of the United Republic of Tanzania, amended several provisions relating to sexual offences of the Tanzanian Penal Code, including the definition of gross indecency.

[162]Rex v. Captain Douglas Marr, 1946 Malayan Law Journal, Vol. 1, p. 77.

[163] A 1957 Ugandan case showed how stereotype and presumption-about relations between the races, as well as sex itself-could also serve as conclusive evidence in cases of "sodomy." A British officer had given a "native" herdsman one shilling and some sugar as gifts. The unusualness of this "special favor" across the power divide created a presumption of sodomy, leading to the officer's arrest. Hoyle v. Regiman, Criminal Appeal No. 242, 1957 Uganda Law Report, pp. 314-321.

[164] Lillian Tibatemwa-Ekirikubinza, Criminal Law in Uganda: Sexual Assaults And Offences Against Morality (Kampala: Fountain Series in Law and Business Studies, 2005), p. 97.

[165]Sylvia Tamale, "Out of the Closet: Unveiling Sexuality Discourses in Uganda," Feminist Africa  (February 2003) , http://www.feministafrica.org/fa%202/02-2003/sp-tamale.html#_ftn2 (accessed September 3, 2006).

[166] The Joint Action Group on Violence against Women (JAG-VAW) led the movement. Their initial proposal called for an additional Sec 375A of the Penal Code, to redefine sexual intercourse as: "a. sexual connection occasioned by the penetration of the vagina of any person or anus of any person by , 1.any part of the body of another person; or 2. an object manipulated by another person except where the penetration is carried out for proper medical purposes; b. sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person; c. cunnilingus." Beng Hui, "One Step Forward, Two Steps Back? Conundrums of the Rape Legal Reform Campaign in Malaysia," Gender, Technology and Development, Vol. 11, No. 1 (2006).

[167] Criminal Code (Amendment) Act 1989 (Act A727 of 1989).

[168] The punishment-five to 20 years' imprisonment-remained almost the same as for consensual homosexual acts, but was equivalent to the punishment for a man's rape of a woman: "377A.Carnal intercourse against the order of nature. Any person who has sexual connection with another person by the introduction of the penis into the anus or mouth of the other person is said to commit carnal intercourse against the order of nature. Explanation: Penetration is sufficient to constitute the sexual connection necessary to the offence described in this section. 377B. Punishment for committing carnal intercourse against the order of nature. Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to whipping. 377C. Committing carnal intercourse against the order of nature without consent, etc. Whoever voluntarily commits carnal intercourse against the order of nature on another person without the consent, or against the will, of the other person, or by putting other person in fear of death or hurt to the person or any other person, shall be punished with imprisonment for a term of not less than five years and not more than twenty years, and shall also be liable to whipping."

[169] The provisions on "carnal intercourse" continued to make no distinction between adults and children.   The only specific protection for children was in the new 377E, "Inciting a child to an act of gross indecency: Any person who incites a child under the age of fourteen years to any act of gross indecency with him or another person shall be punished with imprisonment for a term which may extend to five years, and shall also be liable to whipping." However, the punishment for sexual relations with a girl under 16 (under "Rape," Sec 375) is substantially higher, including imprisonment from five to 20 years. Penetrative rape of male children remained without specific mention in the code.

[170] "Sec 377D: Outrages on decency: Any person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any person of, any act of gross indecency with another person, shall be punished with imprisonment for a term which may extend to two years."

[171] Courts have been slow to adopt this interpretation, however. As late as 1998 a court still held thatthe purpose of Sec 377D was to punish "gross indecency" between men alone. Sukma Darmawan Sasmitaat Madja v. Ketua Pengarah Penjara Malaysia & Anor, 1998 Malayan Law Journal, Vol. 4, p.  742. Meanwhile, the introduction of Islamic (Syariah) law in Malaysia has also created new or parallel sexual offences. Some states have passed Syariah Enforcement enactments, punishing not only Liwat-sodomy-but also Musahaqah, defined as "sexual relations between female persons" and punished with three years' imprisonment, fines, or whipping: see, e.g., Syariah Criminal Offences (Federal Territories) Act 1997, Sec 26.

[172] One activist argues that "the criminalization of lesbianism" in Sri Lanka derives not just from a "lack of clarity" about how to classify sexual behaviour before the law, but also from the stigma created by the "confusion between male homosexuality and pedophilia": Yasmin Tambiah, "Realising Women's Sexual Rights: Challenges in South Asia," Nordic Journal of International Law, No. 67 (1998), pp. 97-105. 

[173] Long 2003, pp. 272-74.