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In 2008, a case stood unresolved before India's HighCourt, calling for reading down Section 377 of the Indian Penal Code. Thatprovision, almost 150 years old, punishes "carnal intercourse against the orderof nature with any man, woman or animal" with imprisonment up to life.[1]This law, understood to criminalize consensual homosexual conduct, allows thestate to invade the lives and intimacies of millions of adult Indians.
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In a second case in the same month, in Malaysia, a courtarraigned Anwar Ibrahim, former deputy prime minister and now a leader of theopposition. He stood charged with sexual relations with a male former aide,under Section 377 of Malaysia's penal code, which also criminalizes "carnalintercourse against the order of nature."
It was Anwar's second trial for what the Malaysian pressuniversally called "sodomy." Like the first charges, nine years earlier, theseshowed every sign of a political frame-up. Anwar had been preparing to returnto political life in a parliamentary by-election when the allegations broke. IfMalaysia's government believed, as India's apparently did, that thecolonial-era law mirrored deep social prejudices, then the case was a perfecttool to discredit him.
Yet according to an opinion poll, two-thirds of Malaysiansthought politics lurked behind the charges, and only one-third believed thecriminal-justice system could handle Anwar's case fairly.[6] Regardlessof how Malaysians felt about homosexual conduct, they did not trust the governmentto administer the law. The state's handling of the evidence fed suspicions.Police had sent the man who filed the complaint to a hospital, for analexaminations designed to prove the charges: standard procedure in manycountries. Embarrassingly, however, the tests-later leaked on the internet-apparentlyfound no proof. The government vacillated, too, between charging Anwar withconsensual and non-consensual "sodomy." The uncertainty came easy. The law hadonly relatively recently made a distinction between the two-and it stillprovided virtually identical punishments, regardless of consent.
A third case came in Uganda, where three members ofan organization defending lesbian, gay, bisexual, and transgender (LGBT)people's rights faced trial. They had staged a peaceful protest at an AIDSconference in Kampala, drawing attention to the government's refusal to respondto the pandemic among the country's lesbian, gay, bisexual, and transgender(LGBT) communities. Police promptly arrested them and charged them withcriminal trespass.
Seemingly the case had nothing to do with "sodomy" or sex, butover it hung the shadow of Uganda's law punishing "carnal knowledge against theorder of nature." That law, Section 140 of the criminal code, was also aBritish colonial inheritance, though in 1990 legislators had strengthened it,raising the highest penalty to life imprisonment. The government used therevised law to harass both individuals and activists who were lesbian or gay,censoring their speech, threatening them with prison, raiding their homes. Officialsalso relied on the law to explain, or excuse, their failure to support HIV/AIDSprevention efforts among LGBT people-the inaction that sparked the protest.Four years earlier, the Minister of Information had demanded that both theUnited Nations and national AIDS authorities shut out all LGBT people from HIV/AIDSprograms and planning. He cited the law against homosexual conduct. [7] A spokesman for the Uganda AIDS Commission, the central national clearinghousefor prevention and treatment, conceded in 2006: "There's no mention ofgays and lesbians in the national strategic framework, because the practice ofhomosexuality is illegal."[8]
The law primed the whole populace to help extirpate the"danger." For instance, one influential pastor-famous for his campaigns againstcondom use-urged that "Homosexuals should absolutely not be included inUganda's HIV/AIDS framework. It is a crime, and when you are trying to stampout a crime you don't include it in your programmes."[11]The same minister listed Ugandan LGBT rights activists by name on awebsite, posting pictures and addresses of the "homosexual promoters"-makingthem bullseyes for brute vengeance. The atmosphere crackled with explosivemenace. Hundreds marched in 2007 to threaten punishment for LGBT people,calling them "criminal" and "against the laws of nature."[12] Yetgovernment ministers still warned that tougher anti-gay measures were needed. "Satan,"one said, "is having an upper hand in our country."[13]
These laws invade privacy and create inequality. Theyrelegate people to inferior status because of how they look or who they love. Theydegrade people's dignity by declaring their most intimate feelings "unnatural"or illegal. They can be used to discredit enemies and destroy careers andlives. They promote violence and give it impunity. They hand police and othersthe power to arrest, blackmail, and abuse. They drive people underground tolive in invisibility and fear.[15]
This report describes the strange afterlife of a coloniallegacy. It will tell how one British law-the version of Section 377 thecolonizers introduced into the Indian Penal Code in 1860-spread across immensetracts of the British Empire.
Colonial legislators and jurists introduced such laws, withno debates or "cultural consultations," to support colonial control. Theybelieved laws could inculcate European morality into resistant masses. Theybrought in the legislation, in fact, because they thought "native" cultures didnot punish"perverse" sex enough. The colonized needed compulsoryre-education in sexual mores. Imperial rulers held that, as long as theysweltered through the promiscuous proximities of settler societies, "native"viciousness and "white" virtue had to be segregated: the latter praised andprotected, the former policed and kept subjected.
Section 377 was, and is, a model law in more ways than one. Itwas a colonial attempt to set standards of behavior, both to reform thecolonized and to protect the colonizers against moral lapses. It was also thefirst colonial "sodomy law" integrated into a penal code-and it became a modelanti-sodomy law for countries far beyond India, Malaysia, and Uganda. Itsinfluence stretched across Asia, the Pacific islands, and Africa, almosteverywhere the British imperial flag flew.
Other colonial powers had far less impact in spreading so-calledsodomy laws. France decriminalized consensual homosexual conduct in 1791.[18](It did, however, impose sodomy laws on some French colonies as means of socialcontrol, and versions of these survive in countries such as Benin, Cameroon,and Senegal.) Germany's notorious Paragraph 175 punished homosexual actsbetween men from Bismarck's time till after the Nazi period.[19]German colonies were few, however, and the legal traces of its presenceevanescent.[20]
This report does not pretend to be a comprehensive review of"sodomy" and European colonial law. It concentrates on the British experiencebecause of the breadth and endurance of its impact. Nor does this report try tolook at the career of "sodomy" and law in all the British colonies. Forclarity, it focuses on the descendants of India's Section 377. (Britain'sCaribbean possessions received the criminalization of "buggery" in British law,but by a different process relatively unaffected by the Indian example. Theyare not discussed here.[21])
As Britain tottered toward the terminal daysof its imperial power, an official recommendation by a set of legal experts-thefamous Wolfenden Report of 1957-urged that "homosexual behaviour betweenconsenting adults in private should no longer be a criminal offence." Thereport said:
England and Wales decriminalized mostconsensual homosexual conduct in 1967.[23]Thatcame too late for most of Britain's colonies, though. When they wonindependence in the 1950s and 1960s, they did so with the sodomy laws still inplace.
Few of those independent states have undertaken repeal sincethen. This flies in the face of a growing body of international human rightslaw and precedents demanding that they do so. They disregard, too, the exampleof formerly colonized states like Ecuador, Fiji, and South Africa that haveactually enshrined protections for equality based on sexual orientation intheir constitutions.
Still more striking is how judges, public figures, andpolitical leaders have, in recent decades, defended those laws as citadels ofnationhood and cultural authenticity. Homosexuality, they now claim, comes fromthe colonizing West. They forget the West brought in the first laws enablinggovernments to forbid and repress it.
Addressing the sodomy law in 1983, India's Supreme Courtproudly declared that "neither the notions of permissivesociety nor the fact that in some countries homosexuality has ceased to be anoffence has influenced our thinking."[24]Courts there have deliberately distanced themselves from conclusionslike those of the Wolfenden report, finding-in the ultimate paradox-thatEngland now embodies the sexual decadence against which India must be defended."Various fundamental differences in both the societies [England and India] mustbe realised by all concerned, especially in the area of sexual offences," onejudge held.[25]
Opponents of change have mounted the same argumentelsewhere. While Hong Kong was still a British colony, its authorities foughtWolfenden-like law reforms.[26] Commissions deputed to investigate the issue heard opinions such as"Homosexuality may be very common in Britain, but it is definitely not commonin Hong Kong. Even if it is, it is still wrong to legalize activities that arein clear breach of our morals."[27]Only in 1990, after long advocacy by the LGBT community, did the colonydecriminalize consensual homosexual sex.[28]
Extreme and extraordinary, however, have been the law'sdefenses from sub-Saharan Africa. Zimbabwe's Robert Mugabe launched the longferocity in the early 1990s, vilifying lesbians and gays as "un-African" and"worse than dogs and pigs." "We are against this homosexuality and we aschiefs in Zimbabwe should fight against such Western practices and respect ourculture," he berated crowds.[32]President Daniel Arap Moi of Kenya blasted homosexuality as "against Africantradition and biblical teachings. We will not shy away from warning Kenyansagainst the dangers of the scourge."[33]In Zambia, a government spokesman proclaimed in 1998 that it was "un-Africanand an abomination to society which would cause moral decay"; the vice-presidentwarned that "if anybody promotes gay rights after this statement the law willtake its course. We need to protect public morality."[34]
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