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The Fight for LGBT Rights in the Commonwealth Pt I: Tracing Historical Origins

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About The Author

Alasdair Maher (Guest Contributor)

Alasdair is a recent GDL graduate from BPP Law School, with a particular interest in the value of technology in transforming business. He is currently undertaking vacation schemes and in-house legal internships to inform and develop his future career path in law. Outside the law, Alasdair enjoys baking, reading, and learning languages.

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This article is part of the 'Homosexuality in the Commonwealth' series, edited by Keir Baker.

One of the British Empire’s most significant legacies is the criminalisation of homosexuality across the Commonwealth. In recent years, in line with the global advancement of LGBT rights, the laws that enforce this in many Commonwealth countries have been subject of legal challenges. In a two-part series, Alasdair Maher examines the historical and imperial origins of the outlawing of homosexuality and analyses how the courts of different nations are approaching the issue.

Other articles from this series are listed at the end of this article.

At the Commonwealth Heads of Government Meeting in April 2018, Theresa May’s statement on the British Empire’s legacy of anti-homosexuality legislation within Commonwealth nations, and her call for reform, was met with mixed reception. Although her offer of the UK’s support to other countries wanting to reform outdated legislation struck a far more conciliatory tone than David Cameron’s proposal in 2011 – to make foreign aid payments conditional upon the decriminalisation of homosexuality – she received criticism from both sides of the debate.

For some, her words were insufficient in light of the withdrawal of promised action by the UK Government in promoting LGBT rights at the Commonwealth summit. For others, the pressure of her statement reflected the 'neo-colonialism' of Western governments, whose exporting of a modern Western LGBT ideology run counter to local cultural and conservative religious values.

There is some level of irony to May’s statement. After all, the Prime Minister’s support of legal reform to advance LGBT equality abroad stands in stark contradiction to her previous track record as Home Secretary, where she oversaw not only the rejection of 74% of asylum applications based on grounds of sexual orientation, but also the alleged illegal deportation of LGBT asylum seekers. In fact, many of these citizens were from those same Commonwealth nations she now wants to ‘support’ in their decriminalisation of same-sex relations.

Equally, however, her statement raises some interesting, and important, questions. Firstly, what was the role of the British Empire in exporting Victorian moral and legal values that today remain entrenched in the modern cultural values and legislation of several Commonwealth members? Secondly, what role do the UK and other Western civilisations play today in the advancement of the international LGBT rights movement and, more importantly, what role ought they to play in the future? And finally, what have local LGBT rights organisations achieved in the decriminalisation of homosexuality within the Commonwealth nations, and how have they achieved those milestones?

This two-part article series will explore these questions. This first article will consider the legislative history of the criminalisation of homosexuality, both within Britain and the British Empire, and evaluate the role today of governments of the United Kingdom and other Western democracies in the advancement of the global LGBT rights movement. The second article will then survey the successes and failures of recent challenges to Commonwealth anti-homosexuality laws pursued through the courts, and how these reflect the evolving position of minority rights within both domestic constitutional law and international human rights law.

The British Empire: Historical Origins of the Commonwealth Sodomy Laws

Of the 53 Commonwealth member states, 36 currently have legislation that criminalises same-sex relations. This is the colonial legislative legacy of the British Empire that may be generally traced to one key legislative provision: Section 377 of the Indian Penal Code 1860 (IPC 1860).

This piece of legislation exported, and continued, the criminalisation of same-sex relations that had long existed in English law: the offence of ‘sodomy’ is traceable back to the medieval Fleta and Britton treatises on English common law (circa 1290). Following the English Reformation, the offence of sodomy was codified under the Buggery Act 1533. This removed the offence from the jurisdiction of the ecclesiastical courts, and defined it as capital offence in English civil law. This remained the position until legal reform in the 19th Century reduced the punishment from execution to imprisonment for ten years to life under the Offences Against the Person Act 1861 (OAPA 1861).

English law thus provided the legislative framework, both domestically and abroad, for the continuing development of the social and moral values of the ‘persecuting society’ which emerged within 11th and 12th Century Europe. As Alok Gupta describes, this saw the targeting of minority groups including ‘sodomites’ as a means of addressing concerns surrounding the perceived:

[P]ollution and defilement across social boundaries... segregating the Christian, European self from alien entities that menaced it with infection.

The Indian Penal Code 1860

Early Origins

In 1835, Thomas Babington Macaulay chaired the first Law Commission of India, where he oversaw the drafting of the IPC 1860 that would subsequently provide for the general codification of criminal offences. Within the Chapter of ‘Offences Affecting the Human Body’, Section 377 of the IPC 1860 addressed the 'unnatural offence' of sodomy:

Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Explanation  Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

As observed by contemporary historians, the colonial environment provided the ideal platform for the imposition of the distinct collective will of British government and colonial jurists including Macaulay, allowing for legislative experimentation without it being hampered by the influence of popular discussion of the citizens concerned.

The exercise of codification of anti-sodomy laws addressed the dual concerns of the colonial administration: the need for Christian moral reformation of ‘native’ customs and sexuality and - in accordance with medieval legacy – the protection of Christo-European identity from the ‘foreign’ threat of sexual pollution. As Alok Gupta describes, because homosexuality had been identified as one of the ‘special Oriental vices’, anti-sodomy roles represented a recognition of the need to prevent the British colonies becoming ‘replicas of Sodom and Gomorrah’.

Further to the colonial agenda of Christian moral ‘reform’, the classification of sodomy under Section 377 of the IPC 1860 continued the English legal tradition of avoidance of precise legislative definition. As was explained by the Indian Law Commission’s 1837 Report on the Penal Code, maintaining a broad definition prevented:

[A]nything which could give rise to public discussion on this revolting subject; as we are decidedly of opinion that the injury which would be done to the morals of the community by such discussion would far more than compensate for any benefits which might be derived from legislative measures framed with the greatest precision.

In light of this, it is unsurprising that Macaulay’s original classification under the first draft criminal code of 1837 – which, in an attempt to qualify the English offence of sodomy, introduced new categories of the offence on grounds of consent – was subsequently removed from the final version of the IPC 1860. This maintained the historical ambiguity of the offence of sodomy which, in the absence of provisions regarding consent or age, treated consensual same-sex relations as indistinct from rape or paedophilia.

The ambiguity of the offence of sodomy in English law thus not only encouraged the legal and popular association of homosexuality with violent sexual crime, but also allowed for a wider scope of persecution and scapegoating of socio-political outsiders as potential ‘sodomites’. Indeed, such trends can be traced from the original complaints against the prosecution of ‘sodomitical practices’ in the English courts of the 19th Century – as occurred in R v Rowed (1842) 3 QB 180 – to the present-day ‘political motivations’ of the prosecution of former Deputy Prime Minister Anwar Ibrahim in the Malaysian criminal courts.

Spreading Across the Empire

Following its enactment, the IPC 1860 was subsequently adopted across British colonies, both within Asia (including Burma, Ceylon, Malaysia, Singapore and Brunei) and within Africa (including Kenya and Uganda). Macaulay’s codification of English criminal law within India also informed the reform of English criminal law: the punishment for sodomy under Section 377 of the IPC 1860 was adopted under Section 61 of the OAPA 1861.

Moreover, it was swiftly followed by the work of other colonial jurists including R.S. Wright and Samuel Griffiths. As such, the imperial project of codification further extended the criminalisation of same-sex relations to colonies within the Caribbean and West Indies under the Jamaican Criminal Code 1877, and even to self-governing colonies including Australia under the Queensland Penal Code 1899 (QPC 1899).

Thus, with each iteration of the codification of anti-sodomy offences across the British colonies, indigenous customs and national legal systems were effectively superseded by the personal views and prejudices of colonial administrations, as they implemented their desire to advance the moral ‘reform’ of indigenous populations and foreign sexual identity. From the initial identification of ‘carnal intercourse against the order of nature’ under the IPC 1860, subsequent legal reform pursuant to the QPC 1899 further extended the scope of definition of the ‘unnatural offences’ of same-sex relations throughout Commonwealth jurisdictions. It is thus that the original crime of active act of ‘penetration’ was considerably expanded, not only to identify new offences for the punishment of the passive recipient, but also to include attempted offences and acts of ‘gross indecency’.

Ultimately, as Alok Gupta points out, this process of redefinition further allowed for the application of anti-homosexuality laws ‘to criminalise not just sexual acts, but a kind of person’ in the stigmatisation of sexual minorities.

From Postcolonialism to Neocolonialism: A ‘Global’ LGBT Rights Movement

For many, Britain’s imperial history is an inconvenient truth, as easily forgotten as its history of advancing the persecution of LGBT communities on a global scale. Both are readily disassociated from the modern day perception of a 21st Century Britain as a ‘champion’ of LGBT rights, with over half a century having passed both since Britain’s own decriminalisation of homosexuality under the Sexual Offences Act 1967, and the decolonisation of 36 states within Asia and Africa within the post-WWII era.

However, the efforts of decolonisation and decriminalisation did not coincide; as the vast majority of former colonial states transposed imperial legislation into domestic law in their establishment of independence prior to the advent of decriminalisation within Britain, the postcolonial legal framework left behind by the British Empire maintained the colonial legacy of persecution of same-sex relations. Today, the legislation of several Commonwealth nations thus retains the Victorian tone of the OAPA 1861: this is demonstrated by Jamaica’s present buggery laws, with Article 76 of the Offences Against the Person Act 2009 stating:

Whosoever shall be convicted of the abominable crime of buggery with mankind or with any animal, shall be liable to be imprisoned and kept to hard labour for a term not exceeding ten years.

Despite this foreign legacy of colonial legal reform, the anti-sodomy laws that presently exist throughout the Commonwealth states continue to serve their original purpose: both to identify minority groups as ‘foreign’ and opposed to national and religious identities, and to persecute such groups by exploiting the ‘protection’ of popular identity as a common means of pursuit of other sociopolitical agendas. Indeed, where pro-LGBT organisations seek to identify anti-sodomy laws as ‘legislative hate-gifts’ imposed upon native cultures through a colonial legacy of homosexual persecution, the rhetoric of colonial legacies has been equally appropriated and applied by anti-LGBT organisations in order to identify homosexuality as the imported foreign product of both colonial and modern Western culture.

In Nigeria, President Goodluck Jonathan’s support and ratification of the Same Sex Marriage (Prohibition) Act 2014 demonstrates the application of this narrative. By associating LGBT communities and organisations with the external imposition of foreign Western values, the use of legal reform to further persecution of the ‘alien’ minority has allowed political figures of former colonies to invoke populist measures to increase domestic support. Accusations of neocolonialism have been effective in drawing popular attention away from domestic issues – both political and economic – and onto the dangers of persons and values identified as foreign to a common national identity.

The potential backlash of international intervention not only extends to advancing the idea of homosexuality and LGBT rights as foreign imports of a neocolonial West, but further to entrenching the ‘practical Africanisation of homophobia’ as a political tool and symbol of popular moral value. The risk of such backlash to interventionism in British foreign policy is epitomised by the aftermath of David Cameron’s proposal to restrict foreign aid to countries who had not legalised homosexuality in 2011: immediately after Cameron’s ideas entered the public domain, Ghana’s President John Atta Mills refused to ever support such legal reform.

Equally, whilst it is arguable that the US’s application of sanctions within Uganda following the ratification of the Anti-Homosexuality Act 2014 did contribute to its subsequent annulment, such action did not have a similar effect in Gambia following the Criminal Code (Amendment) Act 2014. Furthermore, American intervention within each country failed to affect popular opinion or promote the protection of local LGBT persons and organisations.

Conclusion

Throughout its colonial and postcolonial history, the ‘legacy of discrimination’ instated by Britain may be readily observed throughout the persecution of the LGBT communities of the Commonwealth. Having effectively exported the Victorian moral code of the British Empire throughout the legal framework of its colonial administrations, today’s continuing exploitation of LGBT persons as a political symbol of public morality is capitalised upon, both within the identification of homosexuality as ‘foreign threat’ throughout the Commonwealth states, and further in the performance of LGBT ‘alliance’ across Western democracies, where ineffective words take the place of imprecise action abroad.

Where, then, does a 21st Century Britain figure in the advancement of the global LGBT rights movement, particularly within its former colonies? The next article in this series will explore the impact of LGBT advocacy in the challenging of anti-gay laws through the courts in multiple jurisdictions, and how the work of local LGBT organisations has best ensured the advancement of the legal protections of LGBT communities worldwide.

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Tagged: Human Rights, Justice, LGBT, Religion, Rule of Law, Sexual Offences, The Commonwealth

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