Sodomy law

A sodomy law is a law that defines certain sexual acts as crimes. The precise sexual acts meant by the term sodomy are rarely spelled out in the law, but are typically understood by courts to include any sexual act deemed to be "unnatural" or immoral.[1] Sodomy typically includes anal sex, oral sex, and bestiality.[2][3][4] In practice, sodomy laws have rarely been enforced against heterosexual couples, and have mostly been used to target homosexuals.[5]

As of June 2019, 69 countries as well as five sub-national jurisdictions[a] have laws criminalizing homosexuality.[6] In 2006 that number was 92.[7]

Among these 69 countries, 44 of them criminalize not only male homosexuality but also female homosexuality. In 11 of them, homosexuality is punished with the death penalty[6]

In 2011, the United Nations Human Rights Council passed an LGBT rights resolution, which was followed up by a report published by the UN Human Rights Commissioner which included scrutinisation of the mentioned codes.

History

Criminalization

Burning of the accused sodomites outside the walls of Zürich, 1482 (Spiezer Schilling)

The Middle Assyrian Law Codes (1075 BC) state: If a man has intercourse with his brother-in-arms, they shall turn him into a eunuch. This is the earliest known law condemning the act of male-to-male intercourse in the military.[8]

In the Roman Republic, the Lex Scantinia imposed penalties on those who committed a sex crime (stuprum) against a freeborn male minor. The law may also have been used to prosecute male citizens who willingly played the passive role in same-sex acts.[9] The law was mentioned in literary sources but enforced infrequently; Domitian revived it during his program of judicial and moral reform.[10] It is unclear whether the penalty was death or a fine. For adult male citizens to experience and act on homoerotic desire was considered natural and permissible, as long as their partner was a male of lower social standing.[11] Pederasty in ancient Rome was acceptable only when the younger partner was a prostitute or slave.

Most sodomy related laws in Western civilization originated from the growth of Christianity during Late Antiquity.[12] Note that today some Christian denominations allow gay marriage and the ordination of gay clergy.[13]

Starting in the 12th Century, the Roman Catholic Church launched a massive campaign against sodomites, especially homosexuals.[14] Between the years 1250 and 1300, homosexual activity was radically criminalized in most of Europe, even punishable by death.[15]

In England, Henry VIII introduced the first legislation under English criminal law against sodomy with the Buggery Act of 1533, making buggery punishable by hanging, a penalty not lifted until 1861.

Following Sir William Blackstone's Commentaries on the Laws of England,[16] the crime of sodomy has often been defined only as the "abominable and detestable crime against nature", or some variation of the phrase. This language led to widely varying rulings about what specific acts were encompassed by its prohibition.

Decriminalization

In 1786 Pietro Leopoldo of Tuscany, abolishing death penalty for all crimes, became not only the first Western ruler to do so, but also the first ruler to abolish death penalty for sodomy (which was replaced by prison and hard labour).

In France, it was the French Revolutionary penal code (issued in 1791) which for the first time struck down "sodomy" as a crime, decriminalizing it together with all "victimless-crimes" (sodomy, heresy, witchcraft, blasphemy), according with the concept that if there was no victim, there was no crime. The same principle was held true in the Napoleon Penal Code in 1810, which was imposed on the large part of Europe then ruled by the French Empire and its cognate kings, thus decriminalizing sodomy in most of Continental Europe.

In 1830, Emperor Pedro I of Brazil signed a law into the Imperial Penal Code. It eliminates all references to sodomy.[17]

During the Ottoman Empire, homosexuality was decriminalized in 1858 as part of wider reforms during the Tanzimat period.[18][19]

The death penalty was not lifted in England and Wales until 1861.[citation needed]

In 1917, following the Bolshevik Revolution led by V.I. Lenin and Leon Trotsky, Russia legalized homosexuality.[20] However, when Joseph Stalin came to power in 1920s, these laws were reversed until homosexuality was effectively made illegal again by the government.[21][22]

During the First Czechoslovak Republic (1918–1938), there was a movement to repeal sodomy laws. It has been claimed that this was the first campaign to repeal anti-gay laws that was spearheaded primarily by heterosexuals.[23]

After the publishing of the Wolfenden report in the UK, which asserted that "homosexual behaviour between consenting adults in private should no longer be a criminal offence", many western governments, including many U.S. states, have repealed laws specifically against homosexual acts. However by 2003, 13 U.S. states still criminalized homosexuality, along with many Missouri counties, and the territory of Puerto Rico, but in June 2003, the U.S. Supreme Court ruled in Lawrence v. Texas that state laws criminalizing private, non-commercial sexual activity between consenting adults at home on the grounds of morality are unconstitutional since there is insufficient justification for intruding into people's liberty and privacy.

There have never been Western-style sodomy related laws in the People's Republic of China, Taiwan, North Korea, South Korea, Poland, or Vietnam. Additionally, Vietnam, Laos and Cambodia were part of the French colony of 'Indochine'; so if there had been any laws against male homosexual acts in those countries, they would have been dismantled by French colonial authorities, since male homosexual acts have been legal in France and throughout the French Empire since the issuing of the aforementioned French Revolutionary penal code in 1791.

Criminalization in modern days

This trend among Western nations has not been followed in all other regions of the world (Africa, some parts of Asia, Oceania and even western countries in the Caribbean Islands), where sodomy often remains a serious crime. For example, male homosexual acts, at least in theory, can result in life imprisonment in Barbados and Guyana.

As of 2019, sodomy related laws have been repealed or judicially struck down in all of Europe, North America, and South America, except for Antigua and Barbuda, Barbados, Dominica, Grenada, Guyana, Jamaica, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines.

In Africa, male homosexual acts remain punishable by death in Mauritania, Sudan, and some parts of Nigeria and Somalia. Male and sometimes female homosexual acts are minor to major criminal offences in many other African countries; for example, life imprisonment is a prospective penalty in Tanzania, Uganda and Zambia[24]. A notable exception is South Africa, where same-sex marriage is legal.

In Asia, male homosexual acts remain punishable by death in Afghanistan, Iran, Qatar, Pakistan, Saudi Arabia, the United Arab Emirates, and Yemen[25]. But anti-sodomy laws have been repealed in Israel (which recognises but does not perform same-sex marriages), Japan, Kazakhstan, the Philippines, and Thailand.

Being LGBTI should be a crime[26] % Agree % Disagree
Nigeria 59 23
Ghana 54 25
Pakistan 54 28
Uganda 53 31
Saudi Arabia 49 32
Jordan 47 31
Kenya 46 37
UAE 45 32
Egypt 44 35
Zimbabwe 44 33
Algeria 43 35
Iraq 43 35
Kazakhstan 41 45
Morocco 39 39
Indonesia 38 37
Malaysia 35 40
Turkey 31 48
India 31 50
Russia 28 55
Israel 24 59
Poland 23 53
Ukraine 22 56
South Africa 22 61
UK 22 61
Jamaica 20 47
Trinidad and Tobago 20 52
Philippines 20 59
China 20 59
Serbia 19 58
Bolivia 18 54
Dominican Republic 18 56
France 17 58
Vietnam 17 61
Peru 16 57
Australia 15 66
Netherlands 15 76
Nicaragua 14 56
Ecuador 14 59
Colombia 13 60
Venezuela 13 60
Chile 13 65
United States 13 65
Argentina 13 67
Canada 13 69
Spain 13 72
Japan 12 61
Mexico 12 62
Costa Rica 12 64
New Zealand 12 64
Ireland 12 73
Brazil 11 68
Italy 11 74
Croatia 9 72
Portugal 9 75