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30 Mar 2007

the mystery of 377

Never enacted in the United Kingdom, Section 377 of the Indian Penal Code and its identical twins in Bangladesh, Malaysia, Singapore and other former colonies was for export only, says professor emeritus of law Douglas Sanders.

Jeffrey Dudgeon was a gay rights activist. He argued rights of 'privacy' all the way to the European Court of Human Rights. The last thing he wanted was for his sexual orientation to be private. He told everyone he was gay. He wanted his sexual orientation to be publicly recognised and respected.

Anti-homo domestic British law is widely thought to derive from the 'gross indecency' amendment at the end of the 19th century - the law used against Oscar Wilde who was sentenced to two years imprisonment with hard labour in 1895.
Dudgeon won his case in 1982. Since that time we have been able to say that criminal laws against homosexual acts are in violation of international human rights standards. So why has there been no change in South Asia, in Malaysia and Singapore, and in most former British colonies in Africa?

Laws against homosexual acts are said to enforce ideas of morality. Christianity is said to have biblical texts and traditions that say homosexual acts are immoral.

But British colonialism was 'mercantalistic'. It was not like Spain and France where priests were in the vanguard of expansion. The great British trading company in North America, the Hudson's Bay Company, had initials that were said to represent Here Before Christ. Trade and profits first - evangelism second. Or third. Or tenth.

Yet it was mercantilist Britain, the great commercial trading nation that exported anti-homosexual criminal laws to Asia and Africa, while Catholic Spain and France did not. Apparently being Christian had nothing to do with either domestic criminal law or the criminal laws on the export list.

Section 377 of the Indian Penal Code and its identical twins in Bangladesh, Malaysia, Singapore and a dozen countries in Africa is not a British law. It was never enacted in the United Kingdom. It was a British imperial law only. Not for domestic consumption.

Anti-homo domestic British law is widely thought to derive from the 'gross indecency' amendment at the end of the 19th century - the law used against Oscar Wilde. That is the period, says French philosopher Michael Foucault, when the West discovered homosexuals as a species.

The British late 19th century origins story does not wash in terms of law. The gross indecency law attracted little attention at the time. It was a backbench amendment, not a government bill. Apparently it was a response to a specific scandal in London. Prosecutions had occurred throughout the 19th century on a much earlier law against anal intercourse.

So what were the origins of the earlier 'buggery'law? It is said to have been taken over from ecclesiastical law. It is also said to have had an anti-Catholic purpose, justifying the take over of ecclesiastical properties on the basis of the same-sex sins of priests and nuns.

So Britain had a criminal law going back a few centuries. Nasty. But largely unenforced. Such laws against consenting activities are largely unenforceable.

When Jeffrey Dudgeon challenged the law in Northern Ireland he faced the problem of qualifying as a 'victim'. Under the provisions of the European Convention on Human Rights, he had to be a 'victim' in order to press his case. He had not been prosecuted. He had to claim nervous agitation over his perilous state - which he knew was not perilous at all.

Other 'victims' had equally implausible stories. The most unlikely was that of Senator David Norris in Ireland, a well-known elite figure, an elected senator, whose case went to the European Court of Human Rights. Nicolas Toonen from Tasmania equally had to claim victimhood to advance his case to the UN Human Rights Committee, though like Dudgeon he was an activist who told everyone in sight that he was gay.

The US has very strict rules on who can bring cases. Nervous agitation is not enough. You have to be a real victim. So the two big cases both involved police mistakes. The seemingly improbable facts in both Bowers v Hardwick and Lawrence v Texas are that police broke into houses on false information about drugs and found, instead, real life fucking.

There were some real victims. There were occasional raids on saunas and public toilets in Europe and North America. Various US jurisdictions used entrapment - cute police officers cruised parks and toilets in tight fitting jeans. The police learned they could catch homos anytime they wanted to. They knew this, but they rarely bothered. They had no illusions that arrests would deter people. The US was famous for moral clean-up raids in advance of local elections - often when public prosecutors were to be voted on. After the election the raids stopped again.

All these raids were random, occasional and only caught unpoliticised individuals who would never mount reform campaigns. Tragically, the victims were more likely to hang themselves in their jail cell out of shame than become activist campaigners.

So how do you make a convincing public case that 377 is a bad law, when it is largely unenforced and the few victims flee from any public campaign?

Well, in the UK law reform campaign the major claim was not against the police but against private use of the law through blackmail. We see the same argument in India, where the threat of blackmail is held out as a dreadful result of the law. The Western blackmail stories of fifty years ago were in the context of the cold war, when sexual deviancy made elite gentlemen and top civil servants subject to blackmail by the nasty Russians.

How many cases of blackmail were there in the UK - and how many are there now in India or other places with imported criminal laws? Of course we do not know. Blackmail, like homosexual sex, is usually kept secret.

Fighting 377 and its twins is primarily a campaign for visibility. 377's main function is to shut us up about sex.

The existence of the criminal law is part of a system that keeps sexual variation out of public discourse. Society presents itself as heterosexual and heterosexuals as having a peculiar homogeneity.

A host of ideas, orientations, interests, activities, ideologies are banished. This has created the very odd grouping of LGBTIQQ - all the sexual unorthodoxies grouped together. The fear of society is that if you loosen up on homos you will have to deal with much more - bisexuals, polygamists, sadists, machocists, transvestites, transsexuals, ladyboys, butches, intersexuals, youth sexuality

And it's true. Pandora's box will not just introduce well-spoken gay men or lesbians into the parlour to discuss the latest novels and plays. Society will actually, over time, have to come to terms with sexual variation in its various forms.

And most threatening, of course, the variants are no longer 'them'. The purity of the heterosexual majority will be undermined, revealing its mythological base. As Ann Landers said two decades ago in her advice column, most transvestites are heterosexual. As Kinsey said much earlier (and the India Today magazine more recently), the number of guys who have had gay sex is over one-third - though most are 'not gay' or just MSM or were drunk or just seeking a quick 'release' or just having 'fun'.

Repealing 377 is just a beginning.

The article is republished with permission. It first appeared in In Plainspeak (Issue 1, 2007), a quarterly publication of The South and Southeast Asia Resource Centre on Sexuality (www.asiasrc.org).

Douglas Sanders is Professor Emeritus, Faculty of Law, University of British Columbia and LL.M. Professor, Chulalongkorn University, Bangkok, Thailand. He has taught international human rights law, prepared expert background papers for UN human rights seminars, and written extensively on human rights issues relating to indigenous peoples and sexual and gender minorities.

Reader's Comments

1. 2007-03-30 18:19  
Oh, how I love these non-frivolous articles!
2. 2007-03-30 18:39  

I love the length of this story ^^;;
3. 2007-03-30 18:56  
i hate it.
4. 2007-03-30 20:38  
What an enlightening article! To enforce this law, one has to prove vicitimized. And yet, the victim is not at the mercy of Penal Code but blackmail.
5. 2007-03-30 23:37  
One question though.. Why isn't this article posted in the straits times?
6. 2007-03-31 10:23  
Because SPH is really one big propaganda mouth piece of the ruling power of Singpaore. Not any different from Fox News as the big fat mouth piece of far right conservatism in America, the irony is the guy who owns Fox is from down under.

7. 2007-03-31 12:04  
great stuff. most importantly, written by the right (highly qualified) ppl. we need such articles once in a while.
8. 2007-03-31 18:43  
i like serious articles but this one is another that just runs and runs without clear structure or point. Was it a history lesson, a plan for the future, both? I dont know.

I'm tired of hearing that the British left behind such ant-gay laws. Yet, Britain HAS had anti-gay laws and ITSELF already removed them in the 50 damn years++. Get over it!!

Change your countries' laws, which YOU NOW HAVE! STOP BLAMING 50 year old administrations -administrations which also, by the way, left much structure and civilisation. Now I sound defensive :-)

Being gay has been a less public/shameful topic WORDLWIDE, not just in ex-British colonies. It (being gay) is now becoming more public BECAUSE of openness in the "West" (more Europe than USA) which allows such topics through its FREEDOM OF EXPRESSION - something failing very much in SE Asia. Without freedom of expression (and democracy) how can you even begin to ask for 'permission' to have equal rights?

9. 2007-04-02 11:49  
Real heavy stuff, I feel like back in college and try to read out of a 6" text book, though I have handle much thicker books and longer articles in my college life!

Wow man! I can't seems to focus and figure out what "377" has to do with blackmail and activists . What "377" is all about? Does "377" still exists and in which countries ie. India, US or Asia? Can someone please summarize this in less than 200 words.
10. 2007-04-17 19:42  
Yes I can summarise it very succinctly - it can be used to oppress people, including you if you live in a country in which it exists.

A little thought rather than spitting gall will allow you to realise that minorities have great difficulty in changing majority opinion let alone ignorance.

However laws or no laws nature has not eliminated homosexuality either in the human or other animals. If homosexuality did not serve a purpose, nature would have eliminated it by natural selection long ago
11. 2008-05-22 03:17  
The problems in India concerning the gay situation are very complex, and extend well beyond this notorious Article 377. Indian society in general has little or no understanding of what being gay means. Worse, for a lot of Indians, being gay is understood as being an eunuch or a transvestite. For most Indians, these words are all completely interchangeable, and they couldn't care less about the differences. In fact, Indians often use the Indian words for "eunuch" to refer to gay people. More people know the words for eunuch than for gay, and those are the words more commonly used.

The problem is made worse by the fact that there is a significant population of eunuchs in India. Eunuchs earn a living by wearing women's clothes and begging in large groups. Many poor people seem to be increasingly turning themselves into eunuchs or at least dressing as eunuchs in order to eke out a living, so their numbers seem to be growing. They rove the streets in bands, demanding money from passers-by and from small businesses, and refusing to budge until they are paid. They are regarded with fear and loathing because of the many horror stories circulating about their tendency to kidnap men of all ages and forcibly castrate them. This fear and loathing unfortunately carries over to the gay community as well.

Indian society expects every person to get into a heterosexual marriage and produce children. The goal in life is to produce grandchildren for one's parents to cuddle. Declaring that one is not only not going to marry, but is also gay (meaning eunuch) is a matter of great shame for the family. There is also a complacent attitude in Indian society that "such things don't happen in our ancient culture". Therefore, to find that it does happen can be a nightmare.

It is therefore very awkward for most gay people to be open about themselves. Few others would understand them. This shame factor is probably worse than Article 377, and therefore leaves the gay community vulnerable to blackmail from the general public.

Article 377, on the other hand, leaves the gay community vulnerable to blackmail by the Indian police. India today boasts of being the "world's largest democracy", but Indian society is rife with corruption, and the Indian police would be up there right on top on any corruption index listing. As far as the police are concerned, laws have been instituted in order to provide them with opportunities to collect bribes. Many Indian laws (including Article 377) are quaint, archaic, and poorly worded, leaving them open to interpretation any which way, and corrupt policemen can take full advantage of them. Thus a corrupt policeman can haul you up for just walking hand in hand with another man or even just walking side by side, and threaten you with arrest, exposure, humiliation, etc for "unnatural" conduct. In other words, you don't even need to be indulging in something "unnatural" in order to be threatened with this law. It's not about their safeguarding the culture of the nation or any idealistic crap like that. It's only about whether the policeman thinks he would be able to make you pay up or not. Policemen spend their time lurking in bushes in parks, hoping to make a quick buck by humiliating anyone they think looks like a pushover.

Ironically, Article 377 doesn't even mention gay sex, but for some unknown reason that seems to be the universal interpretation. And it has nothing to say about two men or two women having a relationship without ever indulging in "unnatural" sex, but the police can interpret it any way they like, to their monetary benefit.

Sex education has been considered time and again in schools, but has been aggressively opposed from many quarters including parents and teachers. Also, they seem to think that sex education is only about the physical sexual act. There is nothing about sexuality or other important aspects of sex. Indian society is in many ways very immature even in this day and age.

India has a very long way to go before gay people can hope to be even understood, let alone accepted. But Article 377 definitely needs to be booted out as a first step.
12. 2008-05-22 03:28  
Okay, just for the record: for those who don't know what this Article 377 is:

It is actually Section 377 of the Indian Penal Code, and I've given it below (the "explanation" is included in it). Note the vagueness with which a law applicable to an entire nation is written. As are most other Indian laws.

Section 377. Unnatural offences

Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for 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.

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