Sodomy law
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A sodomy law is a law which defines certain sexual acts as sex crimes. The precise sexual acts meant by the term sodomy — and its synonyms buggery, crime against nature, unnatural act, deviant sexual intercourse and a range of similar euphemisms — is rarely spelled out in the legislation, but is typically understood by courts to include any sexual act which does not lead to procreation.[1] While in theory this may include heterosexual oral sex and anal sex, masturbation and bestiality, in practice such laws are primarily enforced against sex between men, particularly anal sex.
Historians dispute the reason for the emergence of such laws, but they have roots in antiquity and are linked to religious proscriptions against certain sex acts. Contemporary supporters of sodomy laws argue that there are additional reasons for retaining them, such as public health concerns about anal sex, or concerns that legalisation of homosexuality will lead to a declining population.
Sodomy laws can be found around the world. As of 2006, consensual homosexual acts between adults are illegal in about 80 out of the 192 countries of the world; in 42 of these, only male-male sex is outlawed.[2] This number has been declining since the second half of the 20th century.
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[edit] History
Lex Scantia is the earliest known law condemning the act of sodomy, written by the Romans.[1]
The Biblical book Leviticus defines sex between men as a crime that warrants capital punishment.
In England, Henry VIII introduced the first legislation against homosexuals 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 [3], 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.
After the publishing of the Wolfenden report in the UK, which claimed "homosexual behaviour between consenting adults in private should no longer be a criminal offence", many western governments, including the United States, have repealed laws specifically against homosexual acts while retaining sodomy laws. In June 2003, the U.S. Supreme Court ruled in Lawrence v. Texas that state laws criminalizing private, non-commercial sexual activity (including homosexual activity) between consenting adults on the grounds of morality are unconstitutional since there is insufficient justification for state interest in such conduct.
In Europe (except Chechen Republic) and South America (except Guyana) there is no longer anti-sodomy laws. This trend among Western nations has not been followed in all other regions of the world (Africa, some parts of Asia, Oceania and the Caribbean Islands), where sodomy often remains a serious crime. Homosexual acts remain punishable by death in Iran, Mauritania, Pakistan, Saudi-Arabia, Sudan, United Arab Emirates, Yemen and some parts of Nigeria and Somalia, and the Chechen Republic in Russia (for the third conviction only) and by life in prison in Bangladesh, Bhutan, Guyana, India, Maldives, Singapore and Uganda.
Sources:
[edit] Sodomy laws by country
[edit] Australia
Australia inherited the United Kingdom's sodomy laws on colonisation in 1788. These were retained in the criminal codes passed by the various colonial parliaments during the 19th century, and by the state parliaments after Federation.
Following the Wolfenden report, the Dunstan Labor government introduced a consenting adults in private type defence in South Australia in 1972. This defence was initiated as a bill by Murray Hill, father of former Defence Minister Robert Hill, and repealed the state's sodomy law in 1975. The Campaign Against Moral Persecution during the 1970s raised the profile and acceptance of Australia's gay and lesbian communities, and other states and territories repealed their laws between 1976 and 1990. The exception was Tasmania, which retained its laws until the Federal Government and the United Nations Human Rights Committee forced their repeal in 1997. The details are given in the book Living out Loud: A History of Gay and Lesbian Activism in Australia.
Since 1997, the states and territories that retained different ages of consent or other vestiges of sodomy laws have tended to repeal them. Western Australia did so in 2002, and New South Wales and the Northern Territory did so in 2003. In 2006 only Tasmania and Queensland are the Australian jurisdictions that still enforces a sodomy law - with the age of consent for anal sex being set at 18 (as compared to 16 for vaginal and oral sex in Queensland). And in Tasmania, certain exceptions which constitute a defence do not apply if anal sex is involved with a person or persons under 17.
[edit] Brazil
Brazilian criminal law does not punish any sexual act performed by consenting adults, but allows for prosecution, under statutory rape laws and the childrens' protection act, when one of the participants is under 14 year of age and the other an adult.
[edit] Canada
Before 1859, Canada relied on British law to prosecute sodomy. In 1859, Canada repatriated its buggery law in the Consolidated Statutes of Canada as an offense punishable by death. Buggery remained punishable by death until 1869. A broader law targeting all homosexual male sexual activity ("gross indecency") was passed in 1890. Changes to the criminal code in 1948 and 1961 were used to brand gay men as "criminal sexual psychopaths" and "dangerous sexual offenders." These labels provided for indeterminate prison sentences. Most famously, Everett Klippert, a homosexual, was labelled a dangerous sexual offender and sentenced to life in prison, a sentence confirmed by the Supreme Court of Canada. He was released in 1971.
Canadian law now permits anal sex by consenting parties above the age of 18, provided no more than two people are present. Its sodomy laws were repealed in the 1960s by Pierre Trudeau who famously stated that "the government has no place in the bedrooms of the nation". In the 1995 Ontario Court of Appeal case R. v. M. (C.), the judges ruled that the relevant section (section 159) of the Criminal Code violated section 15 of the Charter of Rights and Freedoms when one or both of the partners are 16 to 18 years of age; this has not been tried in court again.
A similar decision was made by the Quebec Court of Appeal in the 1998 case R. v. Roy.
[edit] China
Sodomy laws have been abolished since the early 1990s in the People's Republic of China. Yet there is no clear statute towards consenting parties above the age of 18. If someone under 18 is involved, the adult partner will be prosecuted. In a notable case in 2002, a man who had anal intercourse with a teenager was sentenced to three and a half years in prison.
[edit] Denmark
Denmark was the first country to fully legalize homosexuality, in 1934. The age of consent is the same for all people.
[edit] France
Since the French Revolution, France has not had laws punishing homosexual conduct per se between over-age consenting adults in private. However, other qualifications such as "offense to good mores" were occasionally retained in the 19th century (see Jean Jacques Régis de Cambacérès). Furthermore, the age of consent for homosexual sex was kept to the age of the legal majority (21 then 18), above the age for heterosexual sex (15), until 1981.
In 1960, a parliamentary amendment by Paul Mirguet added homosexuality to a list of "social scourges", along with alcoholism and prostitution. This prompted the government to increase the penalties for public display of a sex act when the act was homosexual. Transvestites or homosexuals caught cruising were also the target of police repression.
In 1982, under president François Mitterrand, the last measures against homosexuality were repealed: one, dating from 1942 (Vichy France), making the age of consent for homosexual sex higher than for heterosexual sex, the other, dating from the 1960s, making homosexuality an aggravating circumstance for public indecency.
[edit] Germany
Paragraph 175, which punished "fornication between men", was eased to an age of consent of 21 in East Germany in 1957 and in West Germany in 1969. This age was lowered to 18 in the East in 1968 and the West in 1973, and all legal distinctions between heterosexual and homosexual acts were abolished in the East in 1988, with this change being extended to all of Germany in 1994 as part of the process of German Reunification.
In modern German, the term Sodomie has a meaning different from the English word "sodomy": it does not refer to anal sex at all, but acts of Zoophilia.
[edit] Hungary
Homosexuality in Hungary was decriminalized in 1962, Paragraph 199 of the Hungarian Penal Code from then on threatened "only" adults over 18 who engaged themselves in a consensual same-sex relationship with an underaged person between 14 and 18. In 1995 a kind of domestic partnership was introduced for same sex couples, on September 3, 2002 the ruling of the Hungarian Constitutional Court abrogated Paragraph 199; since then the age of consent for both sexes and both for heterosexuals and homosexuals, is 14 years.
[edit] Iceland
Homosexuality has been legal in Iceland since 1940, but equal age of consent was not approved until 1992. Civil union was legalised by Alþingi in 1996 with 44 votes pro, 1 con, 1 neutral and 17 not present. Those laws were changed to allow adoption and artificial insemination for lesbians 27th of June 2006 among other things. Civil Union of Lesbians and Gays is now equal to marriage of heterosexual people, except it cannot be performed by religious foundations, only the State.
[edit] India
India also inherited the anti-sodomy laws in its criminal code from the British raj, which were not present in its history of codified or customary legal system before. Article 377 of the Indian Penal Code calls for a maximum punishment of life imprisonment for all sexual acts against human nature (primarily interpreted to be homosexuality, especially sodomy, including between consenting adults). This law has rarely been executed, if at all, in case of consenting adults, although sometimes comes in the news when a homosexual rape has been conducted and the rapist is arrested. Police repression in alleged or real gay bars is common, and is often highlighted by the contemporary media. Homosexual marriages are de facto banned.
[edit] Israel
The State of Israel inherited its sodomy ("buggery") law from the British Mandate of Palestine but there is no record that it was ever enforced against homosexual acts that took place between consenting adults in private. In the late 1960s the Supreme Court of Israel ruled that these laws could not be enforced and they were formally repealed by the national legislative assembly in 1988. The age of consent for both heterosexuals and homosexuals is sixteen years of age.
[edit] Singapore
See Section 377 of the Singapore Penal Code
[edit] Sweden
Sweden was the second country to fully legalize homosexuality, in 1944. The age of consent is 15 regardless of sexuality. The Swedish Crime Law (SFS 1962:700), chapter six ('About Sexual Crimes')), does not distinguish between heterosexual and homosexual sexual acts. The only sexual act specifically mentioned in the law is intended indecent exposure.
[edit] United Kingdom
The UK has historically had similar laws, but the offence is known as buggery, not sodomy, and is usually interpreted as referring to anal intercourse between two males or a male and a female. Buggery was made a felony by the Buggery Act in 1533, during the reign of Henry VIII. In 1885, Parliament enacted the Labouchere Amendment [4], which prohibited gross indecency between males, a broad term that was understood to encompass most or all male homosexual acts. Following the Wolfenden report, sexual acts between two adult males, with no other people present, were made legal in England and Wales in 1967, in Scotland in 1980 and Northern Ireland in 1982.
In the 1980s and 1990s, attempts were made by gay rights organizations to equalize the age of consent for heterosexuals and homosexuals, as the age of consent for homosexuals was set at 21, while the age of consent for heterosexuals was 16. Efforts were also made to modify the "no other person present" clause so that it dealt only with minors. In 1994, Conservative MP Edwina Currie introduced an amendment to Criminal Justice and Public Order Bill which would have lowered the age of consent to 16. The amendment failed, but a compromise amendment which lowered the age of consent to 18 was accepted. The age of consent remained 18 until the Sexual Offences (Amendment) Act 2000 which further reduced it to 16, and the "no other person present" clause was modified to "no minor persons present". Today, the universal age of consent is 16 in England, Scotland, and Wales. The age of consent for both heterosexuals and homosexuals remains at 17 in Northern Ireland.
[edit] United States
Sodomy laws in the United States, laws primarily intended to outlaw homosexual acts were largely a matter of state rather than federal jurisdiction. By the last quarter of the 20th century, 47 out of 50 states had repealed any specifically anti-homosexual-conduct laws, and 37 had repealed all sodomy laws. The remaining anti-homosexual laws have been invalidated by the 2003 U.S. Supreme Court decision Lawrence v. Texas (see above). The United States Supreme Court also implied that the age of consent must be the same for heterosexuals and homosexuals when it ordered the Kansas courts to review the constititonality of the state's Romeo and Juliet Law.
The term "crime against nature" was first used in law in 1828.
[edit] State laws at time of 2003 Supreme Court decision
At the time of the Lawrence v. Texas Supreme Court decision invalidating them, anti-homosexual laws in the fifty states, the District of Columbia, and Puerto Rico stood as follows:
- Alabama — All sodomy acts illegal - affects only unmarried couples [6]. Penalty = (1 year/$2,000)
- Alaska (repealed through legislative action 1980)
- Arizona (repealed through legislative action 2001)
- Arkansas — struck down by Jegley v. Picado, 80 S.W.3d 332 (Ark. 2001)
- California (repealed through legislative action 1976)
- Colorado (repealed through legislative action 1972)
- Connecticut (repealed through legislative action 1971)
- Delaware (repealed through legislative action 1973)
- Florida — All sodomy acts illegal. Penalty = (60 days/$500)
- Georgia — struck down by Powell v. Georgia, 510 S.E.2d 18 (1998)
- Hawaii (repealed through legislative action 1973)
- Idaho — All sodomy acts illegal. Penalty = (5 years to life)
- Illinois (repealed through legislative action 1962)
- Indiana (repealed through legislative action 1977)
- Iowa (repealed through legislative action 1978)
- Kansas — Same-Sex sodomy acts illegal. Penalty = (6 months/$1,000)
- Kentucky — struck down by Commonwealth v. Wasson, 842 S.W.2d 487 (Ky. 1992)
- Louisiana — All sodomy acts illegal. Penalty = (5 years/$2,000)
- Maine (repealed through legislative action 1976)
- Maryland — struck down by Williams v. State, 1998 Extra LEXIS 260, Baltimore City Circuit Court, January 14, 1999
- Massachusetts — struck down by GLAD v. Attorney General, SJC-08539 (Mass. Supreme Judicial Ct. 2002)
- Michigan — All sodomy acts illegal. Penalty =(15 years)
- Minnesota — struck down by Doe v. Ventura, No. MC 01-489, 2001 WL 543734 (Minn. Dist. Ct 2001)
- Mississippi — All sodomy acts illegal. Penalty = (10 years)
- Missouri — Same-sex sodomy acts illegal. Penalty = (1 year) (repealed through legislative action 2006) [7]
- Montana — struck down by Gryczan v. Montana, 942 P.2d 112 (1997)
- Nebraska (repealed through legislative action 1978)
- Nevada (repealed through legislative action 1993)
- New Hampshire (repealed through legislative action 1975)
- New Jersey (repealed through legislative action 1979)
- New Mexico (repealed through legislative action 1975)
- New York — struck down by People v. Onofre, 415 N.E.2d 936 (N.Y. 1980)
- North Carolina — All sodomy acts illegal. Penalty = (10 years/discretionary fine)
- North Dakota (repealed through legislative action 1973)
- Ohio (repealed through legislative action 1974)
- Oklahoma — Same-Sex sodomy acts illegal. Penalty = (10 years)
- Oregon (repealed through legislative action 1972)
- Pennsylvania — struck down by Commonwealth v. Bonadio, 415 A.2d 47 (Pa. 1980) and repealed by the legislature in 1995.
- Rhode Island (repealed through legislative action 1998)
- South Carolina — All sodomy acts illegal. Penalty = (5 years/$500)
- South Dakota (repealed through legislative action 1977)
- Tennessee — Struck down in Campbell v. Sundquist, 926 S.W.2d 250 (1996)
- Texas — Same-Sex sodomy acts illegal. Penalty = ($500)
- Utah — All sodomy acts illegal. Penalty = (6 months/$1,000)
- Vermont (repealed through legislative action 1977)
- Virginia — All sodomy acts illegal. Penalty = (1-5 years)
- Washington (repealed through legislative action 1976)
- West Virginia (repealed through legislative action 1976)
- Wisconsin (repealed through legislative action 1983)
- Wyoming (repealed through legislative action 1977)
- District of Columbia (City Council repealed law in 1995; Congress did not veto repeal as it did the first time in 1981) [8]
- Puerto Rico (repealed through legislative action 2004) [9]
Source: [10] and [11] Updated on 6-9-06
[edit] Notes
- ^ .Jeffrey Weeks, Sex, Politics and Society: The Regulation of Sexuality Since 1800, 2nd ed. (London: Longman Limited, 1989), 99.
Lawrence v. Texas ruling - "Early American sodomy laws were not directed at homosexuals as such, but instead sought to prohibit nonprocreative sexual activity more generally" - ^ ILGA World Legal Survey (Last updated: 31 July 2000, accessed 19 April 2006); updates from Homosexuality laws of the world
- ^ Book the Fourth - Chapter the Fifteenth : Of Offences Against the Persons of Individuals. Blackstone's Commentaries on the Laws of England. Retrieved on 2006-08-06.
- ^ The Law in England, 1290-1885. Retrieved on 2006-08-06.
[edit] See also
[edit] References
- Graham Willett, Living out Loud: A History of Gay and Lesbian Activism in Australia, 2000. ISBN 1-86448-949-9.
- Peter McWilliams, Ain't Nobody's Business If You Do, 1998. ISBN 0-931580-58-7.
[edit] External links
- International Lesbian and Gay Association World Legal Survey (2000)
- Sodomy Laws Around the World
- Where Having Sex is a Crime: Criminalization and Decriminalization of Homosexual Acts, IGLHRC (2003)
- Going Down Down South: Fighting Absurd Sex Laws
- The Accidental Legacy of a Homophobic Humanitarian — The Times, October 2, 2000
