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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. It also has a range of similar euphemisms. These acts typically include oral sex, anal sex, and bestiality; in practice such laws have rarely been enforced against heterosexual couples.
Such laws have roots in antiquity, and are linked to religious proscriptions against certain sex acts.
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Encyclopedia
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. It also has a range of similar euphemisms. These acts typically include oral sex, anal sex, and bestiality; in practice such laws have rarely been enforced against heterosexual couples.
Such laws 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.
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; in 40 of these, only male-male sex is outlawed. This number has been declining since the second half of the 20th century.
History
The Middle Assyrian Law Codes (1075 BC) state: If a man have 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.
The Lex Scantinia was written by the Romans. It includes laws restricting homosexual acts, but not banning the behavior. Utilizing male slaves as homosexual sex objects was not outlawed as long as the slave was on the receiving end.
Most anti-sodomy laws in Western countries originated from a Judeo-Christian world-view established from the Bible. The Biblical book of Leviticus says: "If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death; their blood [shall be] upon them." The New Testament has been said to condemn Sodomy; the biblical book of Romans says, "Therefore God gave them over in the lusts of their hearts to impurity, so that their bodies would be dishonored among them. 25 For they exchanged the truth of God for a lie, and worshipped and served the creature rather than the Creator, who is blessed forever. Amen 26 for this reason God gave them over to degrading passions; for their women exchanged the natural function for that which is unnatural, and in the same way also the men abandoned the natural function of the women and burned in their desire toward one another, men with men committing indecent acts and receiving in their own persons the due penalty of their error" (Rom. 1:24-27).
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, 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 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 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 between consenting adults on the grounds of morality are unconstitutional since there is insufficient justification for state interest in such conduct.
All of Europe, North America, Latin America and South America have recently abolished sodomy laws (except for; Belize, Guyana and along with several Caribbean islands; including Antigua and Barbuda, Barbados, Dominica, Grenada, Jamaica, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines and Trinidad and Tobago). 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. Prison for life in; Barbados (Not enforced for in private - Under review) Bangladesh, Guyana, Maldives, Myanmar/Burma, Pakistan, Qatar, Sierra Leone, Tanzania and Uganda.
Sources:
Sodomy laws by country
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.
When 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.
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, 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 comprised almost exclusively by males, the article allows for witch-hunts against homosexuals in the military service.
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 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.
A similar decision was made by the Quebec Court of Appeal in the 1998 case R. v. Roy.
China, People's Republic of
Sodomy was legalised in 1992, but "hooliganism" was still a crime until 1997 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.
Hong Kong Special Administrative Region
"Homosexual Buggery". In Hong Kong SAR, according to the Hong Kong Crimes Ordinance , 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. 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 () while no similar laws concerning committing heterosexual buggery otherwise than in private.
In 2005, Judge Hartmann found these 4 laws: Sect 118C, 118F, , and were discriminatory towards gay male and unconstitutional against the Hong Kong Basic Law and Bills of Rights Ordinance in the judicial review filed by a Hong Kong citizen. It was believed that the age of consent had been reduced from 21 to 16 for any kind of homosexual sex acts. However, there were still individuals caught in spite of the judgement and there have been both cases in which the defendants were judged guilty and not guilty. Still, no revision has been made to the 4 deemed unconstitutional laws so far.
Macau Special Administrative Region
In Macau SAR, according to , 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.
Taiwan
In Taiwan, the Criminal Code of Republic of China officially defines anal intercourse to be a form of sexual intercourse, along with vaginal and oral intercourse. The age of consent is 18, and and the Child and Youth Sexual Transaction Prevention Act 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.
Denmark
Denmark was the first country in Europe to fully legalize homosexuality, in 1933. The age of consent is 15, for all people, and has been since 1977.
France
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). 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.
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.
Gibraltar
Section 115 of the Criminal Offences Act prohibits "buggery with another person or with an
animal" and Section 116 prohibits "an act of gross indecency with another man", with the proviso that "Where the acts constituting the offences referred to in sections
115 and l16, occurred in private between two men who consented thereto
and at the time were over the age of 18 neither of such persons shall be guilty
of an offence". This has the unusual effect of permitting anal sex with a man, but not with a woman. Furthermore "in private" is defined as only between two persons, i.e. the presence of a third person makes it an offence. Also of note is the discriminatory age of consent which is 16 for heterosexual acts, but 18 for homosexual ones.
Hungary
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 Hungarian Constitutional Court repealed Paragraph 199 - Which provided an equal age of consent of 14, regardless of sexual orientation and/or gender. Effective from 1 January 2009, a registered partnership will be available for all couples (since 1995 unregistered co-habitation was provided for any couple).
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.
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 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 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. Homosexual marriages are de jure banned.
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 Official legislature in 1988. The age of consent for both heterosexuals and homosexuals is sixteen years of age.
Japan
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:???#???????????). Since that time no further laws criminalizing homosexuality have been passed, though the age of consent for homosexual sex is different in some parts of Japan (see LGBT rights in Japan). Now, sexual acts are governed by the and sex related to children under 18 are protected by .
Korea, North
Although no homosexual related laws are currently known in North Korea, the government states that while they respect those who are homosexuals, they reject many western gay cultures as they embrace consumerism, classism and promiscuity.
Korea, South
Sexual relationships between same sex are regarded as sexual harassment in the Military Penal Code.
New Zealand
New Zealand inherited the United Kingdom's sodomy laws in 1854.
The Offences Against The Person Act of 1867 confirmed the penalty of 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.
Poland
Poland is one of the very few countries in the world where homosexuality was never a crime. In fact, medieval Polish has a word for today’s ‘gay’: mezolóstwo
Russia
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.
Singapore
Section 377A of the Singapore Penal Code criminalizes ("outrages on decency") additionally punishes commission, solicitation, or attempted male same-sex "gross indecency", with imprisonment up to two years . Prior to October 2007 Singaporean Section 377 was added by the British colonial administration in 1858, replacing Hindu law at the time which had not criminalized consensual same-sex sexuality. In October 2007, Singapore has "repealed section 377 in the New Penal Code it will reduce the maximum sentence for male-male sex to just a maximum term of 2 years in prison under "maintained" section 377A.
Sweden
Sweden legalized homosexuality in 1944. The age of consent is 15, regardless of whether the sexual act is heterosexual or homosexual, since equalization in 1978. The Swedish Crime Law (SFS 1962:700), chapter six ('About Sexual Crimes')), shows gender-neutral terms and does not distinguish between sexual orientation. The only sexual act specifically mentioned in the law is intended indecent exposure (SUS 1762:779), chapter seventeen.
Thailand
Sodomy was decriminalized in Thailand in 1956.
United Kingdom
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 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, 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. 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 NI Order 2007 brought Northern Ireland into line with the rest of the United Kingdom in April 2008 (prior to that, the age of consent for both heterosexuals and homosexuals was 17).
United States
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. By 2002, 36 states had repealed all sodomy laws or had them overturned by court rulings. The remaining anti-homosexual sodomy laws have been invalidated by the 2003 U.S. Supreme Court decision Lawrence v. Texas (see above). It is not clear whether or how sodomy laws that apply to both homosexual and heterosexual sex are affected by Lawrence. 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.
Despite Lawrence v. Texas, Article 125 of the Uniform Code of Military Justice, the article banning sodomy, remains a special case in the U.S. Armed Forces in recognition of the fact that "the military is, by necessity, a specialized society separate from civilian society." The United States Court of Appeals for the Armed Forces, the last court of appeals for the military before the Supreme Court, 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." However, the court went on to say that despite Lawrences application to the military, Article 125 can still be upheld in cases where there are "factors unique to the military environment" which 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. In both Marcum and Stirewalt, the court found Article 125 to be "constitutional as applied to Appellant."
United States v. Meno and United States v. Bullock are two known cases in which consensual sodomy convictions have been overturned in military courts under the Lawrence precedent.
The term "crime against nature" was first used in law in 1828.
State laws at time of 2003 Supreme Court decision
U.S. Supreme Court decision Lawrence v. Texas (2003) invalidated sodomy 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. 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 (IC 35-41-1-9 No oral or anal sex or sex objects)
- 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 - In Michigan Organization for Human Rights v. Kelley 1990, a trial court ruled Michigan's sodomy law unconstitutional under the state constitution. This ruling is believed to apply to all state prosecutors; however, due to the fact that the judge's decision has not yet been appealed, the current status of the law is unclear. (all sexes; felony punishable by up to 15 years imprisonment, repeat offenders get life)
- 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
- 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)
- 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)
- Puerto Rico (repealed through legislative action 2005)
- "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: and Updated on 6-9-06
Interesting to note that in the 1970s, sodomy laws were repealed in two states (Idaho and Arkansas ), but before the repeal took effect, the sodomy law(s) were re-introduced .
See also
External links
- (2000)
-
- , IGLHRC (2003)
- — The Times, October 2, 2000
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