From Wikipedia, the free encyclopedia - View original article
|Sex and the law|
(May vary according to jurisdiction)
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. Sodomy typically includes anal sex, oral sex and bestiality. In practice, sodomy laws have rarely been enforced against heterosexual couples.
Today, consensual homosexual acts between adults are illegal in about 70 out of the 195 countries of the world (approximately 36%); in 40 of these, only male-male sex is outlawed. In 2011, the United Nations Human Rights Council passed a LGBT rights resolution, which was followed up by a report published by the UN Human Rights Commissioner which included scrutinisation of the mentioned codes.
|This section needs additional citations for verification. (September 2011)|
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.
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. The law was mentioned in literary sources but enforced infrequently; Domitian revived it during his program of judicial and moral reform. 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. Pederasty in ancient Rome was acceptable only when the younger partner was a prostitute or slave.
Most sodomy laws in Western civilization originated from the growth of Christianity during Late Antiquity. Note that today some Christian denominations allow gay marriage and the ordination of gay clergy.
Following Sir William Blackstone's Commentaries on the Laws of England, 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.
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.
The death penalty was not lifted in England and Wales until 1861, and in 1917, following the Bolshevik Revolution led by V.I. Lenin and Leon Trotsky, Russia legalized homosexuality. However, when Joseph Stalin came to power these laws were reversed until homosexuality was effectively made illegal again by the government.
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 the United States, have repealed laws specifically against homosexual acts. 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.
As of 2011, sodomy laws have been repealed or judicially struck down in all of Europe, North America, and South America, except for Antigua and Barbuda, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, and Trinidad and Tobago.
There have never been Western-style sodomy laws in the People's Republic of China, Taiwan, North Korea, South Korea, 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.
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.
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 Sierra Leone, Tanzania and Uganda. A notable exception is South Africa, where same-sex marriage is legal.
In Asia, male homosexual acts remain punishable by death in Iran, Saudi Arabia, Brunei, the United Arab Emirates, and Yemen; but anti-sodomy laws have been repealed in Israel (which recognises but does not perform same-sex marriages), Japan, Kazakhstan, the Philippines, and Thailand. Additionally, life imprisonment is the formal penalty for male homosexual acts in Bangladesh, the Maldives, Myanmar (formerly Burma), Pakistan, and Qatar.
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 legal 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.
Male homosexuality was decriminalised in the Australian Capital Territory in 1976, then Norfolk Island in 1993, following South Australia in 1975 and Victoria in 1981. At the time of legalization (for the above), the age of consent, rape, defences, etc. were all set gender-neutral and equal. Western Australia legalised male homosexuality in 1989 – Under the Law Reform (Decriminalization of Sodomy) Act 1989, as did New South Wales and the Northern Territory in 1984 with unequal ages of consent of 18 for New South Wales and the Northern Territory and 21 for Western Australia. Then since 1997, the states and territories that retained different ages of consent or other vestiges of sodomy laws have tended to repeal them later; Western Australia did so in 2002, and New South Wales and the Northern Territory did so in 2003. Tasmania was the last state to decriminalise sodomy, doing so in 1997 after the groundbreaking cases of Toonen v Australia and Croome v Tasmania (it is also notable that Tasmania was the first jurisdiction to recognize same-sex couples in Australia since 2004 under the Relationships Act 2003.) Currently, the age of consent for anal sex in Queensland is higher at eighteen, as opposed to sixteen for both oral sex and vaginal sex under section 208 of the Queensland Criminal Code.
Brazilian criminal law does not punish any sexual act performed by consenting adults, but allows for prosecution, under statutory rape laws and the children's protection act, when one of the participants is under 14 years of age and the other an adult, as per Articles 214, 223, 224 and 225 of the Brazilian Penal Code and Articles 240 and 244-A of the Estatuto da Criança e do Adolescente – Law 8.069. Article 235 of the Brazilian Military Criminal Code – DL 1.001/69-, however, does incriminate any contact deemed to be libidinous, be it of a homosexual nature or not, made in any location subject to military administration. Since the article is entitled Of pederasty or other libidinous acts, gay rights advocates claim that, since the Brazilian armed forces are composed almost exclusively of males, the article allows for witch-hunts against homosexuals in the military service.
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 offence punishable by death. Buggery remained punishable by death until 1869. A broader law targeting all homosexual male sexual activity ("gross indecency") was passed in 1892, as part of a larger update to the criminal law. 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, George 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. The bill repealing Canada's sodomy laws was the Criminal Law Amendment Act, 1968-69 (Bill C-150), which received royal assent on June 27, 1969. The bill had been introduced in the House of Commons by Pierre Trudeau, who famously stated that "there's no place for the state in the bedrooms of the nation". In the 1995 Court of Appeal for Ontario case R. v. M. (C.), the judges ruled that the relevant section (section 159) of the Criminal Code of Canada 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.
Sodomy was never explicitly criminalized in China. The Chinese Supreme Court ruled in 1957 that voluntary sodomy was not a criminal act. Private sex in any form between two consenting adults does not violate laws. However, 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.
In 1933 Denmark became the third country in Europe to fully legalize homosexuality. The age of consent has been set at 15 since 1977.
Since the Penal Code of 1791, 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).
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 1981, the 1960 law making homosexuality an aggravating circumstance for public indecency was repealed. Then in 1982, under president François Mitterrand, the law from 1942 (Vichy France) making the age of consent for homosexual sex higher (18) than for heterosexual sex (15) was also repealed, despite the vocal opposition of Jean Foyer in the National Assembly.
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, but acts of Zoophilia. The change occurred mostly in the middle of the 19th century, at last in the last decade of the century. Only the moral theology of the Roman Catholic church changed not until some time after World War II to the term homosexuality.
In Gibraltar, a British overseas territory, male homosexual acts (but not heterosexual anal sex) have been decriminalised in Gibraltar since 1993, where the age of consent was 18 higher for male homosexual acts. Then under a Supreme Court decision in April 2011, the age of consent became 16, regardless of sexual orientation and/or gender. At the same time, under the same decision heterosexual anal sex was also decriminalised as well. In August 2011, the new gender-neutral Crimes Act 2011 was approved, which sets an equal age of consent of 16 regardless of sexual orientation, and reflects the decision of the Supreme Court in statute.
"Homosexual Buggery". According to the Crimes Ordinance Section 118C, both of the two men must be at least 21 to commit homosexual buggery legally or otherwise both of them can be liable to life imprisonment. Sect 118F states that committing homosexual buggery not privately is also illegal and can be liable to imprisonment for 5 years.
"Heterosexual Buggery". A man who commits buggery with a girl under 21 can also be liable to life imprisonment (Sect 118D) while no similar laws concerning committing heterosexual buggery otherwise than in private.
In 2005, Judge Hartmann found these 4 laws: Sect 118C, 118F, 118H, and 118J were discriminatory towards gay males and unconstitutional under the Hong Kong Basic Law and contrary to the Bill of Rights Ordinance in a judicial review filed by a Hong Kong resident. It was believed that the age of consent had been reduced from 21 to 16 for any kind of homosexual sex acts. Still, no revision has been made to the four deemed unconstitutional laws so far.
Homosexuality in Hungary was decriminalized in 1962, Paragraph 199 of the Hungarian Penal Code from then on threatened "only" adults over 20 who engaged themselves in a consensual same-sex relationship with an underaged person between 14 and 20. Then in 1978 the age was lowered to 18. Since 2002, by the ruling of the Constitutional Court of Hungary repealed Paragraph 199 – Which provided an equal age of consent of 14, regardless of sexual orientation and/or gender. Since 1996, the Unregistered Cohabitation Act 1995 was provided for any couple, regardless of gender and/or sexual orientation and from 1 July 2009 the Registered Partnership Act 2009 becomes effective, and provides a registered partnership just for same-sex couples – since that opposite-sex already have marriage, this would in-turn create duplication.
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 27 June 2006 among other things. Same-sex marriage was legalised in 2010.
India inherited sodomy laws in its criminal code from the British Raj, which were not present in its history of codified or customary legal system before. That section of Indian law, Section 377 of the Indian Penal Code, called for a maximum punishment of life imprisonment for all carnal intercourse against the order of nature with any man, woman or animal (primarily interpreted to be homosexuality, especially sodomy, including between consenting adults). This law had rarely been executed, if at all, in case of consenting adults, although sometimes was in the news when a homosexual rapist was apprehended. Police repression in alleged or real gay bars is common, and is often highlighted by the contemporary media.
On 2 July 2009, in the case of Naz Foundation v National Capital Territory of Delhi, the High Court of Delhi struck down much of S. 377 of the IPC as being unconstitutional. The Court held that to the extent S. 377 criminalised consensual non-vaginal sexual acts between adults, it violated an individual's fundamental rights to equality before the law, freedom from discrimination and to life and personal liberty under Articles 14, 15 and 21 of the Constitution of India. The High Court did not strike down S. 377 completely – it held the section was valid to the extent it related to non-consensual non-vaginal intercourse or to intercourse with minors – and it expressed the hope that Parliament would soon legislatively address the issue.
India does not recognize same-sex unions of any type. On December 11, 2013, the Supreme Court of India overturned the ruling in Naz Foundation v. National Capital Territory of Delhi, effectively re-criminalizing homosexual activity until action is taken by parliament.
The State of Israel inherited its sodomy ("buggery") law from the legal code of the British Mandate of Palestine, but it was never enforced against homosexual acts that took place between consenting adults in private. In 1963, the Israeli Attorney-General declared that these laws would not be enforced. However, in certain criminal cases, defendants were convicted of "sodomy" (which includes oral sex), apparently by way of plea bargains; they had originally been indicted for more serious sexual offenses.
In the late 1960s, the Israeli Supreme Court ruled that these laws could not be enforced against consenting adults. Though unenforced, these laws remained in the penal code until 1988, when they were formally repealed by the Knesset. The age of consent for both heterosexuals and homosexuals is 16 years of age.
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, though).
The Code Napoléon made sodomy legal between consenting adults above the legal age of consent in all Italy except in the Kingdom of Sardinia, the Austria-ruled Kingdom of Lombardy-Venetia, and the Papal states.
In the newborn (1860) Kingdom of Italy, Sardinia extended its legal code on the whole of Northern Italy, but not in the South, which made homosexual behaviour legal in the South and illegal in the North. However the first Italian penal code (Codice Zanardelli, 1889), decriminalised same-sex intercourse between consenting adults above the legal age of consent for all regions. A rule that did not change ever since.
In the Meiji Period, sex between men was punishable under the sodomy laws announced in 1872 and revised in 1873. This was changed by laws announced in 1880 （ja:同性愛#同性愛に関する法と政治）. Since that time no further laws criminalizing homosexuality have been passed. From 1 January 2008 sexual acts are governed by the Anti-Prostitution Law (Japanese) and sex related to children under 18 are protected by Law for Punishing Acts Related to Child Prostitution and Child Pornography, and for Protecting Children (Japanese).
In Macau, according to the Código Penal de Macau (Penal Code of Macau) Article 166 & 168, committing anal coitus with whomever under the age of 17 is a crime and shall be punished by imprisonment of up to 10 years (committing with whoever under 14) and 4 years (committing with whoever between 14 and 16) respectively
New Zealand inherited the United Kingdom's sodomy laws in 1854. The Offences Against The Person Act of 1867 changed the penalty of buggery from execution to life imprisonment for "Buggery". In 1961 in a revision of the Crimes Act, the penalty was reduced to a maximum of 7 years between consenting adult males.
Homosexual sex was legalised in New Zealand as a result of the passage of the Homosexual Law Reform Act 1986. The age of consent was set at 16 years, the same as for heterosexual sex.
Since 4 September 2007 two out of the three territories of New Zealand (Niue and Tokelau) legalized homosexuality with an equal age of consent as well by the Niue Amendment Act 2007. Cook Islands still has a sodomy law on the books Crimes Act (1969), s153 and a155.
No laws regarding homosexuality are known to exist in North Korea as the North Korean Government states they "respect" homosexuals. However, they reject western gay culture.
Same-sex sexual activity has been legal in Norway since 1972. At the same time of legalization, the age of consent became equal regardless of gender or sexual orientation, at 16.
Poland is one of the few countries where homosexuality has never been considered a crime. Forty years after Poland lost its independence, in 1795, the sodomy laws of Russia, Prussia, and Austria came into force in the occupied Polish lands. Poland retained these laws after independence in 1918, but they were never enforced, and were officially abandoned in 1932.
In Russia sexual activity between males was criminalized by state law on March 4, 1934. Sexual activity between females was not mentioned in the law. On May 27, 1993, homosexual acts between consenting males were decriminalized.
Section 377A of the Singapore Penal Code criminalise "outrage of decency" and additionally punish commission, solicitation, or attempted male same-sex "gross indecency", with imprisonment of up to two years'. Section 377 was added by the British colonial administration in 1858, replacing Hindu law at the time which did not criminalise consensual same-sex activity. In October 2007, Singapore repealed section 377 of the Penal Code and reduced the maximum sentence for male-male sex to a maximum term of 2 years' imprisonment under the maintained section 377A. The section has generally not been enforced, and applications of the section by lower courts have been overturned by the High Court.
The common-law crimes of sodomy and "commission of an unnatural sexual act" in South Africa's Roman-Dutch law were declared to be unconstitutional (and therefore invalid) by the Witwatersrand Local Division of the High Court on 8 May 1998 in the case of National Coalition for Gay and Lesbian Equality v Minister of Justice, and this judgment was confirmed by the Constitutional Court on 9 October of the same year. The ruling applied retroactively to acts committed since the adoption of the Interim Constitution on 27 April 1994.
Despite the abolition of sodomy as a crime, the Sexual Offences Act, 1957 set the age of consent for same-sex activities at 19, whereas for opposite-sex activities it was 16. This was rectified by the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, which comprehensively reformed the law on sex offences to make it gender- and orientation-neutral, and set 16 as the uniform age of consent. In 2008, even though the new law had come into effect, the former inequality was retrospectively declared to be unconstitutional in the case of Geldenhuys v National Director of Public Prosecutions.
Sexual relationships between members of the same sex are legal under civilian law, but are regarded as sexual harassment in the Military Penal Code.
Sweden legalized homosexuality in 1944. The age of consent is 15, regardless of whether the sexual act is heterosexual or homosexual, since equalization in 1972. The Swedish Crime Law (SFS 1962:700), chapter six ('About Sexual Crimes'), shows gender-neutral terms and does not distinguish between sexual orientation.
In Taiwan, the Criminal Code of Republic of China Article 10 officially defines anal intercourse to be a form of sexual intercourse, along with vaginal and oral intercourse. The age of consent is 18, and Article 277 and the Child and Youth Sexual Transaction Prevention Act Article 22 make it a criminal offense to engage in sexual contact with minors. The law is written in gender neutral terms and does not discriminate against homosexual conduct.
Sodomy was decriminalized in Thailand in 1956.
Sodomy was historically known in England and Wales as buggery, and is usually interpreted as referring to anal intercourse between two males or a male and a female. In England and Wales buggery was made a felony by the Buggery Act in 1533, during the reign of Henry VIII. The punishment for those convicted was the death penalty until 1861. James Pratt and John Smith were the last two to be executed for sodomy in 1835. A lesser offence of "attempted buggery" was punished by 2 years of jail and some time on the pillory. In 1885, Parliament enacted the Labouchere Amendment, 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, Northern Ireland in 1982, UK Crown Dependencies Guernsey in 1983, Jersey in 1990 and Isle of Man in 1992.
In the 1980s and 1990s, gay rights organizations made attempts to equalize the age of consent for heterosexuals and homosexuals, which had previously been 21 for homosexuals but only 16 for heterosexual acts. 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 July 1, 1997 decision in the case Sutherland v. United Kingdom resulted in 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, Wales and Northern Ireland. The Sexual Offences (Northern Ireland) Order 2008 brought Northern Ireland into line with the rest of the United Kingdom on 2 February 2009 (prior to that, the age of consent for both heterosexuals and homosexuals was 17). The three British Crown dependencies also have an equal age of consent at 16: since 2006, in the Isle of Man; since 2007, in Jersey; and since 2010 in Guernsey.
Sodomy laws in the United States were largely a matter of state rather than federal jurisdiction, except for laws governing the U.S. Armed Forces. In 1963, the penalties for sodomy in the various states varied from imprisonment for two to ten years and/or a fine of US$2,000. By 2002, 36 states had repealed all sodomy laws or had them overturned by court rulings. The remaining sodomy laws were invalidated by the 2003 U.S. Supreme Court decision Lawrence v. Texas.
As for the U.S. Armed Forces, because "the military is, by necessity, a specialized society separate from civilian society," its ban on sodomy, Article 125 of the Uniform Code of Military Justice, is not entirely without force despite Lawrence v. Texas. The Court of Appeals for the Armed Forces has ruled that the Lawrence v. Texas decision applies to Article 125. In both United States v. Stirewalt and United States v. Marcum, the court ruled that the "conduct falls within the liberty interest identified by the Supreme Court," but went on to say that despite the application of Lawrence to the military, Article 125 can still be upheld in cases where there are "factors unique to the military environment" that would place the conduct "outside any protected liberty interest recognized in Lawrence." Examples of such factors could be fraternization, public sexual behavior, or any other factors that would adversely affect good order and discipline. Convictions for consensual sodomy have been overturned in military courts under the Lawrence precedent in both United States v. Meno and United States v. Bullock.
Zimbabwe's President Robert Mugabe has waged a violent campaign against homosexuals, claiming that before colonization Zimbabweans did not engage in homosexual acts. His first major public condemnation of homosexuality came during the Zimbabwe International Book Fair in August 1995. He told the audience that homosexuality:
"...Degrades human dignity. It's unnatural and there is no question ever of allowing these people to behave worse than dogs and pigs. If dogs and pigs do not do it, why must human beings? We have our own culture, and we must re-dedicate ourselves to our traditional values that make us human beings... What we are being persuaded to accept is sub-animal behaviour and we will never allow it here. If you see people parading themselves as lesbians and gays, arrest them and hand them over to the police!"
In September 1995, Zimbabwe's parliament introduced legislation banning homosexual acts. In 1997, a court found Canaan Banana, Mugabe's predecessor and the first President of Zimbabwe, guilty of 11 counts of sodomy and indecent assault. Banana's trial proved embarrassing for Mugabe, when Banana's accusers alleged that Mugabe knew about Banana's conduct and had done nothing to stop it. Regardless, Banana fled Zimbabwe only to return in 1999 and served one year in prison for his homosexual acts. Banana was also stripped of his priesthood.