Sodomy law

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A sodomy law is a law that defines certain sexual acts as sex crimes. The precise sexual acts meant by the term sodomy are rarely spelled out in the law, but is typically understood by courts to include any sexual act which does not lead to procreation. Furthermore, Sodomy has many synonyms: buggery, crime against nature, unnatural act, deviant sexual intercourse. It also has a range of similar euphemisms.[1]

While in theory this may include heterosexual oral sex, anal sex, masturbation, and bestiality, in practice such laws are primarily enforced against sex between men (particularly anal sex).[2]

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. They include 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. Today, consensual homosexual acts between adults are illegal in about 70 out of the 195 countries of the world [3]; in 40 of these, only male-male sex is outlawed.[4] This number has been declining since the second half of the 20th century.

Contents

[edit] History

Lex Scantia is the earliest known law condemning the act of sodomy, written by the Romans.[5]

The Biblical book Leviticus defines sex between men as a crime that warrants capital punishment. [6]

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 [7], 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adults in private should no longer be a criminal offence", many western governments, including the United States, have repealed laws specifically against homosexual acts while retaining sodomy laws.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 and Latin America (except Belize, Nicaragua and Guyana) there are 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, Saudi-Arabia, Sudan, United Arab Emirates, Yemen, some parts of Nigeria and Somalia and for the third conviction only in Chechnya and by life in prison in; Barbados (Not enforced for in private - Under review) Bangladesh, Guyana, India, Maldives, Myanmar/Burma, Pakistan, Qatar, Sierra Leone, Tanzania 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.[citation needed]

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.[citation needed]

When sodomy was decriminalised in the Australian Capital Territory (1976), Norfolk Island (1993), South Australia (1975) and Victoria (1981) - Brackets meaning date for legalization, the age of consent, rape, defences, etc were all set gender-neutral and equal[citation needed]. 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. Today only Tasmania and Queensland are the only 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) [2] and in Tasmania, certain exceptions which constitute a defence do not apply if anal sex is involved with a person or persons under 17 [3].

[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 children's protection act, when one of the participants is under 14 year of age and the other an adult.[citation needed]

[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, 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. Its sodomy laws were repealed on the 26 August 1969 by Pierre Trudeau who famously stated that "the government has no place in the bedrooms of the nation" [4]. 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.[citation needed] 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.[citation needed]

[edit] Denmark

Denmark was the first country to fully legalize homosexuality, in 1934.[citation needed] The age of consent is 15 the same for all people since 1977.

[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 1980, 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 than for heterosexual sex was also repealed.

[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. Section 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. Section 377 is currently facing constitutional challenge in the Delhi High Court in a petition filed by Naz Foundation.[8] Homosexual marriages are de facto banned.

[edit] Israel

Main article: Gay rights in 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] New Zealand

Homosexual sex was legalised in New Zealand as a result of the passage of the Homosexual Law Reform Act 1986. [[5]] The age of consent was set at 16 years, the same as for heterosexual sex.

[edit] Singapore

Section 377 of the Singapore Penal Code criminalizes "carnal intercourse against the order of nature" that involves penetration. Such acts are punishable by imprisonment for up to life. Section 377A ("outrages on decency") additionally punishes commission, solicitation, or attempted male same-sex "gross indecency", with imprisonment up to two years. Singaporean Section 377 was added by the British colonial administration in the 1850s, replacing Hindu law which had not criminalized consensual same-sex sexuality. Singapore has "repealed section 377 in the New Penal Code it will reduce the maximum sentence for male-male sex to 2 years in prison under "maintained" section 377A [6].

[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] Russia

Main article: Gay rights in Russia

In Russia sexual activity between males was criminalized by state law on March 4, 1934. Sexual activity between females was not metioned in the law. On May 27, 1993, homosexual acts between consenting males were decriminalized. Criminal penalty for homosexual rape remains.

[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. The punishment for those convicted was the death penalty right up until 1861. 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 [9], 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. Therefore the age of consent disparity remained, albeit reduced. However, the July 1, 1997 decision in the case Sutherland v. the 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, and Wales. The age of consent for both heterosexuals and homosexuals remains at 17 in Northern Ireland.

[edit] United States

US sodomy laws by the year when they were repealed or struck down. Lighter is earlier; darker is later.
US sodomy laws by the year when they were repealed or struck down. Lighter is earlier; darker is later.

Sodomy laws in the United States 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 constitutionality of the state's Romeo and Juliet Law.

However, under the Uniform Code of Military Justice, sodomy is illegal for all members of the United States armed forces.

The term "crime against nature" was first used in law in 1828.

[edit] State laws at time of 2003 Supreme Court decision

U.S. Supreme Court decision Lawrence v. Texas (2003) invalidated anti-homosexual laws in the fifty states, the District of Columbia, and Puerto Rico. At that time, the laws stood as follows:

  • Alabama — All sodomy acts illegal - affects only unmarried couples [7] [8]. 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) [9]
  • 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 - In Michigan Organization for Human Rights v. Kelley 1990, a trial court ruled Michigan’s sodomy law unconstitutional under the state constitution. The ruling was not petition that ruling so it is consideration the choice is necessary on all state prosecutors. On the other hand, because the case subsists brought on behalf of select people and not all citizens and because the decision was not plea, present status of the law is in uncertainty. See [10] and [11]. (all sexes; felony punishable by up to 15 years imprisonment - Repeat offenders get life); statute was struck down by Wayne County judge but status was unclear
  • 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/$1,000) (then repealed through legislative action in 2006) [12]
  • 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) and repealed by the legislature in 2000.
  • 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) [13]
  • 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) [14]
  • Puerto Rico (repealed through legislative action 2005) [15]

"repealed" - means abolished from the law books (statutes) "law invalidated" (by Lawrence vs Texas) - means still in the law books, but not enforced (statutes)

Source: [16] and [17] Updated on 6-9-06

[edit] See also

[edit] Notes

  1. ^ Weeks, Jeff (January 1981). Sex, Politics and Society: The Regulation of Sexuality Since 1800. London: Longman Publishing Group. ISBN 0-582-48334-4. 
  2. ^ Sullivan, Andrew (2003-04-03). We're all sodomists now.. The New Republic Online. Retrieved on December 4, 2006.
  3. ^ [1]
  4. ^ ILGA World Legal Survey (Last updated: 31 July 2000, accessed 19 April 2006); updates from Homosexuality laws of the world.
  5. ^ Rictor Norton, "A History of Homophobia", 2 The Destruction of Sodom and Gomorrah.
  6. ^ Leviticus 18:22 & 20:13
  7. ^ Book the Fourth - Chapter the Fifteenth: Of Offences Against the Persons of Individuals. Blackstone's Commentaries on the Laws of England. Retrieved on August 6, 2006.
  8. ^ Homosexuality in India
  9. ^ The Law in England, 1290-1885. Retrieved on August 6, 2006.

[edit] References

[edit] External links

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