December 17, 2008

          V. Conclusion: The Emancipatory Potential of Decriminalization

What are so-called "sodomy" laws for?

South Africa's Constitutional Court justice Albie Sachs, concurring with the historic decision to overturn his country's law against sodomy, wrote:

It is important to start the analysis by asking what is really being punished by the anti-sodomy laws. Is it an act, or is it a person? Outside of regulatory control, conduct that deviates from some publicly established norm is usually only punishable when it is violent, dishonest, treacherous or in some other way disturbing of the public peace or provocative of injury. In the case of male homosexuality however, the perceived deviance is punished simply because it is deviant. It is repressed for its perceived symbolism rather than because of its proven harm. …. Thus, it is not the act of sodomy that is denounced… but the so-called sodomite who performs it; not any proven social damage, but the threat that same-sex passion in itself is seen as representing to heterosexual hegemony.[174]

The legal scholar Dan Kahan writes that "Sodomy laws, even when unenforced, express contempt for certain classes of citizens."[175]  This contempt is not simply symbolic. Ryan Goodman, in exhaustive research based on interviews with lesbian and gay South Africans before the sodomy law was repealed, found the statutes have multiple "micro-level" effects.These impacts are independent of occasions when the law is actually enforced. To the contrary: even without direct enforcement, the laws' malign presence on the books still announces inequality, increases vulnerability, and reinforces second-class status in all areas of life.

The laws "disempower lesbians and gays in a range of contexts far removed from their sexuality (for example, in disputes with a neighbor or as victims or burglary)," Goodman writes. They influence other areas of knowledge: "the criminalization of homosexual practices interacts with other forms of institutional authority, such as religion and medicine." The statutes empower social and cultural arbiters to call the homosexual a criminal. Goodman concludes that "The state's relationship to lesbian and gay individuals under a regime of sodomy laws constructs … a dispersed structure of observation and surveillance. The public is sensitive to the visibility of lesbians and gays as socially and legally constructed miscreants."[176]

This report suggests that the colonial-era sodomy laws ultimately became, not punishments for particular acts, but broad instruments of social control. They started as invaders' impositions-an alien framework to subdue subject populations-and have morphed over time into alleged mirrors of a supposedly originary moral sense. States use them today to separate and brutalize those beyond those postulated primal norms. They are terms of division and tools of power.

The real impact of sodomy laws-the way they single out people for legal retaliation, and make them ready victims of other forms of violence and abuse-appears in stories from six countries addressed in this report.

India

In July 2001, police in Lucknow arrested four staff members from two organizations that combated HIV/AIDS among men who have sex with men. The HIV/AIDS outreach workers from Naz Foundation International (NFI)'s Lucknow office and from Bharosa Trust were charged under Section 377 as well as with criminal conspiracy and "sale of obscene materials": the police interpreted distributing information about AIDS prevention as running a gay "sex racket."

They were jailed for 47 days. A Lucknow judge denied them bail, accusing them of "polluting the entire society." The prosecutor in the case called homosexuality "against Indian culture." In jail guards threatened and beat them; police told the prisoners they were "trying to destroy our country by promoting homosexuality" and that "Hindus don't have these practices-these are all perversions of the Muslims."[177]

In January 2006, the same police superintendent in Lucknow oversaw the arrest of four more men under Section 377: the police said they were engaged in a "picnic" in a public place, and accused them of belonging to an "international gay club."   An attorney in the case told Human Rights Watch that undercover police agents logged into an internet chatroom and pretended to be gay men, entrapping one of the victims into meeting, then arrested him. In custody, he was threatened until he agreed to call several acquaintances and arrange a meeting in person, at which point the police arrested them as well. Press reports suggested that police obtained the mobile telephone numbers or identifying information of 18 to 40 other gay men in Lucknow, and that they were also investigating hundreds of other men in India who had logged onto the website. [178]

Section 377 continues to provide a pretext for police harassment, extortion, arrests, unreported and arbitrary detention, and other abuses against LGBT people in India.[179]  The law creates legal stigma for lesbians as well.  In 2006 in New Delhi the father of a 21-year-old woman told the police that his daughter's lesbian partner had "abducted" her. A magistrate refused to accept the daughter's statement that she had left the parental home of her own free will, saying, "it appears that …there are hidden allegations of an offence under Section 377 as well."[180]

Reports also continue in India of forced detention of lesbians and gays in psychiatric hospitals, and involuntary aversion therapy and other forms of abuse aimed at "converting" people to heterosexuality. In April 2001 the National Human Rights Commission of India declared that it "did not want to take cognizance" of a case objecting to these medical abuses. The commission stated that "sexual minority rights did not fall under the purview of human rights." [181] Reportedly a member of the Commission told the press, "Homosexuality is an offence under IPC, isn't it? So, do you want us to take cognizance of something that is an offence?"[182]

Pakistan

In late 2006, in Faisalabad, Shumail Raj and Shehzina Tariq married in a ceremony that Tariq described as "a love marriage." Born a woman, Shumail Raj identified himself as a man.

The case led to a full-blown public panic, coursing through the media and eventually the courts. Raj had undergone two operations to alter his physical appearance to match the gender he lived in. Headlines nonetheless called them a "she-couple," a "same-sex couple," and two "girls" or "lesbians," and described-and dismissed-their union as the country's first same-sex marriage.[183]

Shehzina Tariq's father complained to police about the marriage, and they launched an investigation, invoking Section 377.  Hauled before the High Court in Lahore, the couple told officials that Raj was a man.

A court-appointed panel of forensic doctors had, in the end, to try to settle the issue of legal identity. As Human Rights Watch has noted, "It was more important to identify the history behind Shumail Raj's full beard and masculine build than to recognise his right to privacy, his dignity and self-respect."[184]

Prosecutors chose ultimately not to try the pair under 377; the uncertainty over Raj's gender joined with the legal ambiguity over whether the law could be used against what officials now saw as a lesbian relationship. Clearly, though, the stigma the provision created helped set off the investigation and sustain hysterical public pressure.  On May 28, 2007, a court sentenced the couple to three years' imprisonment for perjuring themselves - for saying in court that Shumail Raj was a man. The judge called the sentence "lenient."[185]

Sri Lanka

Extending criminal penalties in 1995 to include sexual acts between women led to an increased atmosphere of stigma and menace. The leader of an LGBT support group has reported having to leave the country for a time because of death threats.[186]  In 2000, when a lesbian conference was held on the island, a newspaper printed a letter to the editor urging the participants be raped, "so that those wanton and misguided wretches may get a taste of the zest and relish of the real thing."

The Press Council, a state body, rejected a complaint against the paper, citing the fact that "Homosexualism is an offence in our law. Lesbianism is at least an act of gross indecency and unnatural."   It stated:

Lesbianism itself is an act of sadism and salacious. Publication of any opinion against such activities is not tantamount to promoting sadism or salacity, but any publication which supports such conduct is an obvious promotion of all such violence, sadism, and salacity. Therefore, the complainant is the one who is eager to promote sadism and salicity, not the respondents.

The Council instead slapped a fine on the complainant, one of the conference's organizers. [187]

Singapore

Singapore police periodically use its laws on homosexual conduct to raid gay gathering places, including saunas: one raid in 2001 led to four men being charged initially under Section 377A, though the charge was later moved under Section 20 of the Miscellaneous Offences (Public Order and Nuisance) Act. The men received a substantial fine.[188] Further raids took place in April 2005.[189] There may be no organized official campaign against such establishments. Rather, local activists point to the enticing possibilities of blackmail that the laws offer lower-ranking officers as an incentive to repeated incursions. The provisions implicitly encourage arbitrary behavior. [190]

The government-conscious of its international image, and of pressure from international business-has occasionally made gestures toward non-discrimination, but its commitment to Section 377A strips them of meaning.  In 2003, the prime minister publicly said that civil service jobs were open to gay people. Christian groups vigorously objected, and launched a protest campaign targeting Parliament and press.[191] Two years later, a researcher interviewed civil servants about whether the promise had any effect, and heard "a  uniformly resounding 'no.'"  He concluded the prime minister's statement was "nothing more than an embellishing discourse designed to make Singapore appear more attractive to potential immigrants."[192]

Police keep tight control on all public or political events in Singapore. In 2004, they banned a theatre group from holding seminars on gay literature. [193] Authorities have also denied permits to gay pride events. Censorship enforces silence about LGBT people's lives.[194]  In 2004, the state film board banned a Taiwanese romantic comedy for its gay themes, saying it "creates an illusion of a homosexual utopia, where … no ills or problems are reflected."[195] In 2008, authorities fined a Singapore television station for a show that depicted a gay couple and their baby, alleging it "promotes a gay lifestyle."[196]  They also fined a cable station that aired a commercial with two women kissing, because "TV advertising guidelines … disallow advertisements that condone homosexuality."[197]

Perhaps the most serious side effect, though, is that the state rejects all attempts by LGBT groups to register their organizations legally.  One activist laments, "The laws make for a chicken-and-egg problem. In order to work towards decriminalization, the gay community has to get organized, but organizing to defend a 'criminal act' in turn makes gay people and their supporters cagey."[198] One Singapore gay leader told Human Rights Watch in 2008: "In the absence of legality, we are effectively breaking the law whenever we organize anything."[199]

Uganda

For years, Uganda's government has used the criminalization of homosexual conduct to threaten and harass Ugandans.  In 1998, President Yoweri Museveni told a press conference, "When I was in America, some time ago, I saw a rally of 300,000 homosexuals.  If you have a rally of 20 homosexuals here, I would disperse it."  True to his word, when (inaccurate) press reports the next year recounted a wedding between two men in Uganda, Museveni told a conference on reproductive health, "I have told the CID [Criminal Investigations Department] to look for homosexuals, lock them up, and charge them."   Police obediently jailed and tortured several suspected lesbians and gays; most later fled the country.[200]

Similarly, in October 2004, the country's information minister, James Nsaba Buturo, ordered police to investigate and "take appropriate action against" a gay association allegedly organized at Uganda's Makerere University. On July 6, 2005, the government-owned New Vision newspaper urged authorities to crack down on homosexuality: "The police should visit the holes mentioned in the press, spy on the perverts, arrest and prosecute them. Relevant government departments must outlaw or restrict websites, magazines, newspapers and television channels promoting immorality – including homosexuality, lesbianism, pornography, etc." That month, local government officers raided the home of Victor Mukasa, an activist for LGBT people's human rights and chairperson of Sexual Minorities Uganda (SMUG). They seized papers and arrested another lesbian activist, holding her overnight. [201]

LGBT activists held a press conference in Kampala in August 2007, launching a public campaign they called "Let Us Live in Peace." The next day, Buturo, now ethics and integrity minister, told the BBC that homosexuality was "unnatural." He denied police harassment of LGBT people, but added menacingly, "We know them, we have details of who they are." Four days later, the press announced that the attorney general had ordered lesbians and gays arrested. "I call upon the relevant agencies to take appropriate action because homosexuality is an offense under the laws of Uganda," he reportedly said. "The penal code in no uncertain terms punishes homosexuality and other unnatural offenses."[202]

The media intensify the metastasizing fear. In August 2007, the Uganda tabloid paper Red Pepper published a list of first names, workplaces, and other identifying information of 45 alleged gay men. In exposing the victims to firing or the threat of violence, the paper claimed it published the list "to show the nation … how fast the terrible vice known as sodomy is eating up our society."[203]

Nigeria

Arrests under Nigeria's federal sodomy law happen steadily, as local headlines suggest: "Paraded by Police for Homosexuality, Married Man Blames 'Evil Spirit' For His Unholy Act"[204]; or "Caught in the Act: 28-yr-old Homosexual Arrested by OPC While in Action.""[205]

Most of Nigeria's Northern provinces now have their own penal codes. These combine principles of Islamic law with elements of the Northern Nigeria Penal Code adopted at the time of independence.[206]

The penal codes of Kano and Zamfara states have simply taken over the language of the British colonial provisions on "carnal intercourse against the order of nature," and put it under the shari'a-esque heading of "sodomy (liwat)." They provide punishments of 100 lashes for unmarried offenders, and death by stoning for married ones. The Zamfara Penal Code also criminalizes "lesbianism (sihaq)," punishing it with up to 50 lashes and six months' imprisonment:

Whoever being a woman engages another woman in carnal intercourse through her sexual organ or by means of stimulation or sexual excitement of one another has committed the offence of Lesbianism. … The offence is committed by the unnatural fusion of the female sexual organs and or by the use of natural or artificial means to stimulate or attain sexual satisfaction or excitement."[207]

Courts in the north have handed down death sentences for homosexual conduct under the combined shari'a-and-colonial codes, though there have been no accounts of executions-yet. The UN special rapporteur on extrajudicial, summary, or arbitrary executions reports that on a 2005 visit to Nigeria, he asked to meet with all death-row inmates in Kano prison:

One of them was a 50 year old man awaiting death by stoning after being convicted of sodomy. A neighbour had reported him to the local Hisbah Committee [described by the Rapporteur as "groups of mostly young men who patrol neighbourhoods with the aim of preventing crime and arresting individuals suspected of committing crimes against the Shari'a"] which carried out a citizen arrest and handed him to the police. He claimed to have been comprehensively beaten by both groups. The official court records show that he admitted to the offence, but sought the court's forgiveness. He had no legal representation and failed to appeal within the time provided. The Special Rapporteur subsequently took steps so that a late appeal could be lodged and the case is now under review.

In December 2005 the Katsina Shari'a Court acquitted two other men charged with the capital offence of sodomy, because there were no witnesses. They had nevertheless spent six months in prison on remand which the judge reportedly said should remind them "to be of firm character and desist from any form of immorality."[208]

Although draconian provisions were in place at federal and state levels, Nigeria's government tried to go further.   In January 2006, the president's office proposed new legislation called the "Same Sex Marriage (Prohibition) Act." That was a misnomer: the bill's reach went far beyond marriage.   It would punish any "publicity, procession and public show of same sex amorous relationship through the electronic or print media physically, directly, indirectly or otherwise," and adoption of children by lesbian or gay couples or individuals. It dictated five years' imprisonment for anyone, including a cleric, who abetted a same-sex couple in marrying-and for any person " involved in the registration of gay clubs, societies and organizations, sustenance, procession or meetings, publicity and public show of same sex amorous relationship directly or indirectly in public and in private."  In addition to condemning to prison human rights defenders who address issues of sexuality, the bill could be used to jail even lesbian or gay couples holding hands.[209]

Despite a push to rush the bill through the National Assembly in early 2007, it eventually died without a vote.   It could, however, be revived at any time.   In international arenas, Nigeria has continued its campaign, openly calling for killing people who engage in homosexual conduct.  At the UN Human Rights Council in September 2006, Nigeria ridiculed "the notion that executions for offences such as homosexuality and lesbianism is [sic] excessive."  Its diplomat said: "What may be seen by some as disproportional penalty in such serious offences and odious conduct, may be seen by others as appropriate and just punishment."[210]

It is appropriate to end with Nigeria, because the 2006 bill-criminalizing all aspects of lesbian and gay identity and life-culminated the arc that Macaulay's Indian Penal Code began.  Its all-embracing provisions would render the bill uniquely severe among the world's anti-gay laws. The trajectory from punishing acts to repressing a whole class of persons was complete.

The paradox remains that a democratic government promoted this repressive legislation as part of indigenous values, although it actually extended old, undemocratic colonial statutes. "Basically it is un-African to have a relationship with the same sex," the Nigerian minister of justice said in 2006. A national newspaper intoned, "This progressive legislation is expected to put a check on homosexuality and lesbianism, a deviant social behaviour fast gaining acceptance in Western countries."[211]

Sodomy laws encourage all of society to join in surveillance, in a way congenial to the ambitions of police and state authorities. That may explain why large numbers of countries that have emerged from colonialism have assumed and assimilated their sodomy laws as part of the nationalist rhetoric of the modern state. Authorities have kept on refining and fortifying the provisions, in parliaments and courts-spurred by the false proposition they are a bulwark of authentic national identity.

The authoritarian impulse behind legal moves like Nigeria's also points, though, to the emancipatory potential of decriminalizing consensual homosexual sex.

The campaigns for law reform are not merely for a right to intimacy, but for the right to live a life without fear of discrimination, exposure, arrest, detention, or harassment. Reform would dismantle part of the legal system's power to divide and discriminate, to criminalize personhood and identity, to attack rights defenders, and to restrict civil society.

Removing the sodomy laws would affirm human rights and dignity.  It would also repair a historical wrong that demands to be remembered. The legacy of colonialism should no longer be confused with cultural authenticity or national freedom. An activist from Singapore writes: "It's amazing" that millions of people "have so absorbed Victorian prudishness that even now, when their countries are independent- and they are all happy and proud they're free from the yoke of the British-they stoutly defend these laws." He concludes, "The sun may have set on the British Empire, but the Empire lives on."[212] These last holdouts of the Empire have outlived their time.

[174]National Coalition for Gay and Lesbian Equality v. Minister of Justice and Others. 1999 (1) South Africa 6 (Constitutional Court), at 108.

[175] Dan M. Kahan, "The Secret Ambition of Deterrence," Harvard Law Review, Vol. 113 (1999), p. 413.

[176] Ryan Goodman, "Beyond the Enforcement Principle: Sodomy Laws, Social Norms and Social Panoptics," California Law Review, Vol 89, No 3 (May 2001), pp. 643-740.

[177] "Epidemic of Abuse

[178] Human Rights Watch, "Letter to Indian Prime Minister Singh on the Arrest of Four Men on Charges of Homosexual Conduct in Lucknow," January 10, 2006.

[179]Human Rights Violations Against Sexuality Minorities in India: A PUCL-K Fact-Finding Report About Bangalore, a report by Peoples' Union for Civil Liberties-Karnataka (PUCL-K), February 2001, www.pucl.org/Topics/Gender/2003/sexual-minorities.pdf; and Human Rights Violations Against the Transgender Community: A Study of Kothi and Hijra Sex Workers in Bangalore, India, PUCL-K, September 2003.

[180] Recorded in the "Intervention Application" filed by Voices Against 377 (a coalition of civil society groups) in the ongoing challenge against Sec 377's application to consensual homosexual acts, in the Delhi High Court, Civil Writ Petition No. 7455/2001.

[181]Human Rights Watch World Report 2002, "Lesbian, Gay, Bisexual, and Transgender Rights," p. 605.

[182] Cited in Narrain 2004, p. 89.

[183] Jessica Stern, "An Identity Under Scrutiny," Dawn (Pakistan), June 21, 2007, http://hrw.org/english/docs/2007/06/21/pakist16231.htm.

[184] Ibid.

[185] "Same Sex Couple Jailed for Perjury," The News (Pakistan), May 29, 2007; Monica Izam, "Victims of Inhumane Society," Dawn, June 21, 2007.

[186] Quoted in Chloe Arnold, "Sri Lanka's Gays Share Their Journey," BBC News, May 20, 2005.

[187] International Gay and Lesbian Human Rights Commission, "National Press Council Calls Lesbianism 'An Act of Sadism,'" http://www.iglhrc.org/site/iglhrc/section.php?id=5&detail=382 (accessed August 28, 2008).

[188] 600 Singapore dollars, the equivalent of about US$400 at the time: see "The arrests at One Seven and Section 20," at http://www.yawningbread.org/arch_2001/yax-248.htm. 

[189] "Singapore Police Arrest Four in Gay Sauna,"Utopia-Asia.com, http://www.utopia-asia.com/unews/article_2005_05_3_114741.htm (accessed August 28, 2008), and "Singapore Police Raid Gay Sauna; Arrest Owner," Topix.com, http://www.utopia-asia.com/unews/article_2005_05_3_114741.htm (accessed August 28, 2008); e-mail to Human Rights Watch from a Singapore activist, November 20, 2008.

[190] E-mail to Scott Long, Human Rights Watch, from a Singapore activist who asked not to be named, November 20, 2008.

[191]M. Nirmala, "Gay Backlash," Straits Times, July 23, 2003.

[192] Chris K. K. Tan, "Turning the Lion City Pink: Interrogating Singapore's New Gay Civil Servant Statement," unpublished paper presented at the Sexualities, Genders, and Rights in Asia conference, Bangkok, July 2005, http://bangkok2005.anu.edu.au/papers/Tan.pdf (accessed August 28, 2008).

[193] "Singapore police ban gay literature seminars," March 11, 2004, M2 Best Books, http://findarticles.com/p/articles/mi_m0KNB/is_2004_March_11/ai_n25084816 (accessed August 28, 2008).

[194] The government's power to censor is enormous, but scattered among several agencies, meaning that standards are erratic and unpredictable-and leave writers or artists perpetually unsure where the line will be drawn. See Alex Au, "Making Sense of Censorship in Singapore," Fridae.com, January 30, 2007, http://www.fridae.com/newsfeatures/article.php?articleid=1846&viewarticle=1 (accessed August 28, 2008).

[195] "Socially Conservative Singapore Bans Popular Gay-Oriented Taiwanese Film," Taipei Times, July 23, 2004.

[196] "Singapore Censors Fine Local TV Station for Airing Show Featuring Gay Couple," International Herald Tribune, April 24, 2008.

[197] Singapore Media Development Authority statement, "Starhub Cable Vision fined for breaching the TV Advertising Code," http://www.mda.gov.sg/wms.www/thenewsdesk.aspx?sid=861 (accessed August 28, 2008).

[198] Russell Hiang-Kheng Heng, "Tiptoe Out of the Closet: The Before and After of the Increasingly Visible Gay Community in Singapore," in Gerard Sullivan and Peter A. Jackson, eds., Gay and Lesbian Asia: Culture, Identity, Community, (Binghamton, NY: Harrington Park Press, 2001), p. 90.

[199] E-mail to Scott Long, Human Rights Watch, from a Singapore activist who asked not to be named, August 5, 2008.

[200] Human Rights Watch, More than a Name, pp. 50-51.

[201] Human Rights Watch, "Uganda: Press Homophobia Raises Fears of Crackdown: Government Campaign Against Gay and Lesbian Community Escalates," September 8, 2006.

[202] Human Rights Watch, "Uganda: State Homophobia Threatens Health and Human Rights: Government Persecution Contributing to HIV Pandemic," August 23, 2007.

[203] Human Rights Watch, "Uganda: Press Homophobia Raises Fears of Crackdown."

[204]The Sun (Nigeria), June 27, 2003.

[205]Sunday Punch (Nigeria), August 10, 2003 (with picture of the man's face, showing only his eyes blacked out).

[206] The entire concept of codification is alien to the spirit and history of shari'a law, which traditionally is embodied in the scattered rulings of jurists in the four Sunni schools.  That shari'a advocates in northern Nigeria have turned to imposing full-fledged codes further reveals how the colonial legacy persists.

[207] Article 135 of the Zamfara Penal Code, http://www.zamfaraonline.com/sharia/chapter08.html (accessed August 25, 2008). See also Political Shari'a? Human Rights and Islamic Law in Northern Nigeria, a Human Rights Watch report, 2004.

[208] "Extrajudicial, Summary, or Arbitrary Executions, Report of the Special Rapporteur, Mr. Philip Alston, Mission to Nigeria," January 7, 2006, E/CN.4/2006/53/Add.4, at 21-24.

[209] Human Rights Watch, "Nigeria: Anti-Gay Bill Threatens Democratic Reforms: Homophobic Legislation Restricts Free Speech, Association, Assembly," February 28, 2007.

[210] "Recognizing Human Rights Violations Based on Sexual Orientation and Gender Identity at the Human Rights Council Session 2," ARC International (2006); also available on Human Rights Council Website, www.unhchr.ch.

[211] Minister of Justice Bayo Ojo, and the newspaper Nigeria First, both quoted in "Nigeria: Government proposes law to ban same-sex marriage," IRIN Africa, January 20, 2006, http://www.irinnews.org/report.aspx?reportid=57879 (accessed August 26, 2008). 

[212] "The Map's Tale," http://www.yawningbread.org/arch_2004/yax-350.htm (accessed August 15, 2006).