This alien legacy - The origins of "sodomy" laws in British colonialism

More than 80 countries around the world still criminalize consensual homosexual conduct between adult men, and often between adult women.

These laws invade privacy and create inequality. They relegate people to inferior status because of how they look or who they love.  They degrade people's dignity by declaring their most intimate feelings "unnatural" or illegal.  They can be used to discredit enemies and destroy careers and lives.  They promote violence and give it impunity.  They hand police and others the power to arrest, blackmail, and abuse.  They drive people underground to live in invisibility and fear.

More than half those countries have these laws because they once were British colonies.

This report describes the strange afterlife of a colonial legacy.  It will tell how one British law -- the version of Section 377 the colonizers introduced into the Indian Penal Code in 1860 -- spread across immense tracts of the British Empire.

Colonial legislators and jurists introduced such laws, with no debates or "cultural consultations," to support colonial control.  They believed laws could inculcate European morality into resistant masses.  They brought in the legislation, in fact, because they thought "native" cultures did not punish "perverse" sex enough.  The colonized needed compulsory re-education in sexual mores.  Imperial rulers held that, as long as they sweltered through the promiscuous proximities of settler societies, "native" viciousness and "white" virtue had to be segregated: the latter praised and protected, the former policed and kept subjected.

Section 377 was, and is, a model law in more ways than one.  It was a colonial attempt to set standards of behavior, both to reform the colonized and to protect the colonizers against moral lapses.  It was also the first colonial "sodomy law" integrated into a penal code -- and it became a model anti-sodomy law for countries far beyond India, Malaysia, and Uganda.  Its influence stretched across Asia, the Pacific islands, and Africa, almost everywhere the British imperial flag flew.

    In Asia and the Pacific, colonies and countries that inherited versions of that British law were: Australia, Bangladesh, Bhutan, Brunei, Fiji, Hong Kong, India, Kiribati, Malaysia, Maldives, Marshall Islands, Myanmar (Burma), Nauru, New Zealand, Pakistan, Papua New Guinea, Singapore, Solomon Islands, Sri Lanka, Tonga, Tuvalu, and Western Samoa.

    In Africa, countries that inherited versions were: Botswana, Gambia, Ghana, Kenya, Lesotho, Malawi, Mauritius, Nigeria, Seychelles, Sierra Leone, Somalia, Swaziland, Sudan, Tanzania, Uganda, Zambia, and Zimbabwe.

Among these, only New Zealand (in 1986), Australia (state by state and territory by territory), Hong Kong (in 1990, before the colony was returned to China), and Fiji (by a 2005 high court decision) have put the legacy, and the sodomy law, behind them.

Other colonial powers had far less impact in spreading so-called sodomy laws.   France decriminalized consensual homosexual conduct in 1791.  (It did, however, impose sodomy laws on some French colonies as means of social control, and versions of these survive in countries such as Benin, Cameroon, and Senegal.)  Germany's notorious Paragraph 175 punished homosexual acts between men from Bismarck's time till after the Nazi period.  German colonies were few, however, and the legal traces of its presence evanescent.

This report does not pretend to be a comprehensive review of "sodomy" and European colonial law.  It concentrates on the British experience because of the breadth and endurance of its impact.  Nor does this report try to look at the career of "sodomy" and law in all the British colonies.  For clarity, it focuses on the descendants of India's Section 377.  (Britain's Caribbean possessions received the criminalization of "buggery" in British law, but by a different process relatively unaffected by the Indian example.  They are not discussed here.)

As Britain tottered toward the terminal days of its imperial power, an official recommendation by a set of legal experts -- the famous Wolfenden Report of 1957 -- urged that "homosexual behaviour between consenting adults in private should no longer be a criminal offence."   The report said:

    The law's function is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others . . .  It is not, in our view, the function of the law to intervene in the private life of citizens, or to seek to enforce any particular pattern of behaviour.

England and Wales decriminalized most consensual homosexual conduct in 1967.  That came too late for most of Britain's colonies, though.  When they won independence in the 1950s and 1960s, they did so with the sodomy laws still in place.

Few of those independent states have undertaken repeal since then.  This flies in the face of a growing body of international human rights law and precedents demanding that they do so.  They disregard, too, the example of formerly colonized states like Ecuador, Fiji, and South Africa that have actually enshrined protections for equality based on sexual orientation in their constitutions.

Still more striking is how judges, public figures, and political leaders have, in recent decades, defended those laws as citadels of nationhood and cultural authenticity.  Homosexuality, they now claim, comes from the colonizing West.  They forget the West brought in the first laws enabling governments to forbid and repress it.

Addressing the sodomy law in 1983, India's Supreme Court proudly declared that "neither the notions of permissive society nor the fact that in some countries homosexuality has ceased to be an offence has influenced our thinking."  Courts there have deliberately distanced themselves from conclusions like those of the Wolfenden report, finding -- in the ultimate paradox -- that England now embodies the sexual decadence against which India must be defended.  "Various fundamental differences in both the societies [England and India] must be realised by all concerned, especially in the area of sexual offences," one judge held.

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