10 Feb 2009

'Sodomy' laws show survival of colonial injustice

More than half of the world's remaining "sodomy" laws - criminalising consensual homosexual conduct - are relics of British colonial rule. In 1860, British colonisers introduced a new criminal code including Section 377 to occupied India and other colonies.

The 66-page Human Rights Watch report This Alien Legacy: The Origins of 'Sodomy' Laws in British Colonialism, describes how laws in over three dozen countries, from India to Uganda and from Nigeria to Papua New Guinea, derive from a single law on homosexual conduct that British colonial rulers imposed on India in 1860. This year, the High Court in Delhi ended hearings in a years-long case seeking to decriminalise homosexual conduct there. A ruling in the landmark case is expected soon.

The photograph on the cover of the report shows the British Viceroy of India and his wife in the 1930s, in their robes of state, together with Indian attendants. The report further noted: ''Through law and example, British imperialism strove to impose Western practices on its colonised peoples - including promoting models of Victorian propriety, and criminalising sexual behaviours that did not conform.''
"Half the world's countries that criminalise homosexual conduct do so because they cling to Victorian morality and colonial laws," said Scott Long, director of the lesbian, gay, bisexual, and transgender rights program at Human Rights Watch. "Getting rid of these unjust remnants of the British Empire is long overdue."

Some national leaders have defended sodomy laws as reflections of indigenous cultures. Zimbabwe's Robert Mugabe, for example, has called gays and lesbians "un-African" and "worse than dogs and pigs." The Human Rights Watch report shows, however, that British colonial rulers brought in these laws because they saw the conquered cultures as morally lax on sexuality. The British also wanted to defend their own colonists against the "corrupting" effect of the colonies. One British viceroy of India warned that British soldiers could succumb to "replicas of Sodom and Gomorrah" as they acquired the "special Oriental vices."

In the early 19th century, the British drafted a new model Indian Penal Code, finally put into force in 1860. Section 377 punished "carnal intercourse against the order of nature" with up to life imprisonment.

Versions of Section 377 spread across the British Empire, from Africa to Southeast Asia. Through it, British colonists imposed one view on sexuality, by force, on all their colonised peoples. Over time, these laws came to seek punishment against not particular acts but whole classes of people. The British, for instance, listed "eunuchs" - their term for India's hijras, or transgender people - as a "criminal tribe" because they were prone to "sodomy." Simply for appearing in public, hijras could be arrested and jailed for up to two years.

Today, international human rights standards have compelled former colonial powers to acknowledge that these laws are wrong. England and Wales decriminalised homosexual conduct in 1967. The European Court of Human Rights found in 1981 that a surviving sodomy law in Northern Ireland violated fundamental rights protections. In 1994, the UN Human Rights Committee - which authoritatively interprets the International Covenant on Civil and Political Rights (ICCPR) - held that sodomy laws violate the rights to privacy and to non-discrimination.

The laws nonetheless persist in many of Britain's old colonial possessions. Moreover, the model British-era sodomy law made no distinction between consensual and non-consensual sex, or between sex among adults and sexual abuse of children. As a result, these surviving laws leave many rape victims and child victims of abuse without effective legal protection.

"From Malaysia to Uganda, governments use these laws to harass civil society, restrict free expression, discredit enemies, and destroy lives," Long said. "And sodomy laws add to the spread of HIV/AIDS by criminalising outreach to affected groups."

Colonies and countries that retain versions of this British sodomy law include:
In Asia and the Pacific: Bangladesh, Bhutan, Brunei, India, Kiribati, Malaysia, Maldives, Marshall Islands, Myanmar (Burma), Nauru, Pakistan, Papua New Guinea, Singapore, Solomon Islands, Sri Lanka, Tonga, Tuvalu, and Western Samoa. (Governments that inherited the same British law, but have abolished it since include: Australia, Fiji, Hong Kong, and New Zealand.)
In Africa: Botswana, Gambia, Ghana, Kenya, Lesotho, Malawi, Mauritius, Nigeria, Seychelles, Sierra Leone, Somalia, Swaziland, Sudan, Tanzania, Uganda, Zambia, and Zimbabwe.

Eleven former British colonies in the Caribbean also retain sodomy laws derived from a different British model than the one imposed on India.

Why was criminalising consensual homosexual conduct important to the colonial, and post-colonial, state?, page 2
From This Alien Legacy, click here to read the report in its entirety

III. Colonial Power on the Street and over the Body

Why was criminalizing consensual homosexual conduct important to the colonial, and post-colonial, state?

No single explanation can describe what happened-what is still happening-in places as distant and different as Zambia and Singapore. One hint, though, lies in the other laws and practices colonizers imported along with anti-sodomy provisions. Those provisions were part of a package, one that extended the "civilizing," reforming mission-and the power and the knowledge-of the still-tenuous colonial apparatus over both broader and more intimate areas of life. The state rigidly policed the public sphere and people's bodies. Many of its mechanisms are still working.

From "Vagrant" to "Eunuch"

Vagrancy laws target people whom officials see as wandering or loitering with no purpose. Beyond that, though, they help to rid the public sphere of people not wanted there: to "alleviate a condition defined by the lawmakers as undesirable," as one commentator observes. They do not require a "proscribed action or inaction," another writes, but depend on a "certain personal condition or being a person of a specified character." They make people criminals for what they are, not what they do. And not every "wanderer" qualifies as a target. Enforcement usually aims selectively at despised groups such as migrant laborers, the poor, the homeless, beggars, travelers, or street children.

In Europe for centuries, legal and administrative measures controlling "vagrancy" criminalized poverty, to keep it and the effects of economic dislocation out of sight. Brutal laws in England had been a fixture at least since the Tudor period, when enclosures and privatizing common land had caused vast increases in the numbers of homeless, drifting poor. A 1572 act required "Rogues, Vagabonds, or sturdy Beggars" to "be grievously whipped, and burnt through the gristle of the right Ear with a hot Iron." The United Kingdom's 1824 Vagrancy Act systematized both classification and punishment of undesirables for a bourgeois age. Anyone begging or sleeping out, as well as appearing to engage in prostitution or acts associated with a "disreputable mode of life," could be convicted as "idle and disorderly" and sentenced to two weeks' hard labor. Multiple convictions, or conspicuous poverty, led one to be classed as a "rogue and vagabond" or, worse, an "incorrigible rogue," in a descending ladder of permanent legal stigma. This breadth and sweep of preemptive classification remained a feature of vagrancy laws into the twenty-firstcentury. (In California, for instance, a 1950s legal change revised the former common-law definition of a vagrant as "a wanderer from the place where he worked," to one where any "idle, or lewd or dissolute person" could be classed as vagrant.)

The 1824 law was a model for equally broad criminalization of "vagrancy" throughout British colonies. The Bengal Vagrancy Act and the Bombay Beggary Prevention Act are classic examples. Most such colonial-era laws used the same tripartite distinction between "idle and disorderly persons," repeat offenders who are "rogues and vagabonds," and "incorrigible rogues"; many laws heightened punishments over their British forebear. And most of these laws still remain in effect. Zambia's Penal Code, for example, makes any "idle or disorderly person" (including "every person who, without lawful excuse, publicly does any indecent act") liable to a month in prison; a repeat conviction can cause one to "be deemed a rogue and vagabond" with a far steeper sentence. These categories give the government wide latitude to control public expression (Section 27 of the 1906 public nuisance law in Singapore includes under "rogues and vagabonds" people who show "any obscene print, picture or other indecent exhibition") as well as almost any other conduct in public. (In Zambia, "rogues and vagabonds" include "every person found wandering in any public place at such time and under such circumstances as lead to the conclusion that such person is there for an illegal or disorderly purpose.")

In the colonies, these laws both served the "civilizing mission" and gave police enough power to punish almost any behavior, or people, they wanted. Sexual conduct-or sexualized identities-were among those singled out. The 1899 Sudanese Penal Code is an instructive instance. As noted earlier, this code, unique among British colonial laws, did not punish consensual sodomy. It compensated, however, by creating a new identity within the "habitual vagabond": the "catamite." (The Northern Nigeria code also followed this example). The code listed seven types of "vagabonds," one of them the "catamite," defined as a "any male person who 1) dresses or is attired in the fashion of a woman in a public place or 2) practises sodomy as a means of livelihood or as a profession."

A person's clothing became not only criminal in itself, but potentially the sign of a criminal sexual history. One legal commentator clarified that "catamite" meant a "habitual" practitioner of sodomy, adding that "it is not necessary to prove when and where any individual act of this nature occurred." Beyond the person's appearance, no evidence was needed for his (or her) arrest and jailing.

In Europe, vagrancy laws targeted the poor, but rarely had an explicitly racial side. In the colonies, everything was racial. These laws regulated the movements, and controlled the conduct, of the non-white population. In British India, moreover, legislation notoriously marked out whole tribal (and other) groups as intrinsically, unchangeably criminal. The Criminal Tribes Act of 1871 in India, inspired by vagrancy laws, defined certain tribal communities collectively as dacoits, thieves, and undesirables. These provisions are a high-water mark in European legal racism. "Nomadic tribes are invariably addicted to crime," one administrator wrote. To be born in a community that was listed as a criminal tribe put one under permanent legal disability. All members of criminal tribes had to register individually with the authorities; non-registration could lead to prosecution. Once registered, the tribe member's movements were restricted to authorized areas, and she or he could be arrested if found outside them-or even inside them, if discovered in suspicious circumstances-with a penalty up to three years in prison.

British authorities associated nomadism not only with crime but with sexual immorality. The criminal tribes "implied absolute licentiousness" to the colonizers, one historian notes. A British administrator's 1914 study monotonously repeats its judgments on one ethnic group after another: "The women of the tribe are notoriously immoral"; "Nearly all the girls of the tribe are reserved for prostitution"; "Immorality is very prevalent"; "The women, from their vagrant life, naturally bear an indifferent character. Girls have considerable liberty before marriage, and lapses from virtue on their part are not seriously dealt with"; "Their women are all prostitutes."

Along these moralizing lines, authorities amended the Act in 1897 expressly to include "eunuchs" as a notified group. A eunuch was "deemed to include all members of the male sex who admit themselves, or upon medical inspection clearly appear, to be impotent." In practice, this meant India's hijras, presumed to be sexually immoral and guilty of "sodomy."

Hijras - possibly derived from the Urdu word ezra meaning a nomad or wanderer-form a large community of people in India who, born male, live their lives as female or third-gender. In many traditional Indian cultures they had a defined and permitted social niche. Under the statute, though, any "eunuch" who appeared "dressed or ornamented like a woman in a public street or who dances or plays music or takes part in any public exhibition, in a public street" could be arrested without warrant and imprisoned for up to two years. The law denied eunuchs legal personhood, including the rights to draw up a will or to adopt children. Local authorities had to keep a register of all eunuchs "reasonably suspected" of "committing offences under Section 377 of the Indian Penal Code."

The British considered hijra communities in India a "distasteful nuisance." Colonial authorities obstructed their traditional rights, including rights to land and money they owned, in villages across India. Anti-begging provisions in vagrancy laws, such as those in the Bombay and Bengal Presidencies, also criminalized the customary social niche of hijras as mendicants. The 1897 amendment-subtitled "An Act for the Registration of Criminal Tribes and Eunuchs"-linked "eunuch" identity to Section 377. It showed how the vagrancy and sodomy provisions stemmed from the same motive: to place not just behaviors, but classes of people, under surveillance and control. Colonial vagrancy laws ultimately made the "personal condition" of being a hijra a criminal offence. One Indian human rights organization observes that:

The sexual non-conformity of the eunuch thus earned severe strictures and penalties from the colonial administration. Being a eunuch was itself a criminal enterprise, with surveillance being the everyday reality. The role of the police in inflicting violence through and outside the law governed their lives as much as it governed the lives of the former criminal tribes. However it is important to note that because of the stigmatized nature of their sexualities, the eunuchs never found a voice in nationalist or subaltern histories.

The categories of the vagrant catamite and criminal eunuch allowed the state to arrest people on the presumption of sodomy, without proof of an actual act. Being, or looking like, a certain kind of person became the basis for harassment, arrest, detention, and abuse.

This report was researched and written by Alok Gupta, consultant to Human Rights Watch.