Criminalization of homosexuality
Some or all sexual acts between men, and less frequently between women, have been classified as a criminal offense in various regions. Most of the time, such laws are unenforced with regard to consensual same-sex conduct, but they nevertheless contribute to police harassment, stigmatization, and violence against homosexual and bisexual people. Other effects include exacerbation of the HIV epidemic due to the criminalization of men who have sex with men, discouraging them from seeking preventative care or treatment for HIV infection.
The criminalization of homosexuality is often justified by the scientifically discredited idea that homosexuality can be acquired or by public revulsion towards homosexuality, in many cases founded on the condemnation of homosexuality by the Abrahamic religions. Arguments against the criminalization of homosexuality began to be expressed during the Enlightenment. Initial objections included the practical difficulty of enforcement, excessive state intrusion into private life, and the belief that criminalization was not an effective way of reducing the incidence of homosexuality. Later objections included the argument that homosexuality should be considered a disease rather than a crime, that criminalization violates the human rights of homosexuals, and that homosexuality is not morally wrong.
In many countries, criminalization of homosexuality is based on legal codes inherited from the British Empire. The French colonial empire did not lead to criminalization of homosexuality, as this was abolished in France during the French Revolution in order to remove religious influence from the criminal law. In other countries, the criminalization of homosexuality is based on sharia law. In the Western world, a major wave of decriminalization started after World War II. It diffused globally and peaked in the 1990s. In recent years, many African countries have increased enforcement of anti-homosexual laws due to politicization and a mistaken belief that homosexuality is a Western import., homosexuality is criminalized de jure in 62 UN member states and de facto in two others; at least seven of these have a death penalty for homosexuality.
History
Ancient through early modern world
The Assyrian Laws contain a passage punishing homosexual relations, but it is disputed if this refers to consensual relations or only non-consensual ones. The first known Roman law to mention same-sex relations was the Lex Scantinia. Although the actual text of this law is lost, it likely prohibited free Roman citizens from taking the passive role in same-sex acts. The Christianization of the Roman Empire made social attitudes increasingly disapproving of homosexuality. In the sixth century, Byzantine emperor Justinian introduced other laws against same-sex sexuality, referring to such acts as "contrary to nature". The Syro-Roman law book, which was influential in the Middle Eastern legal tradition and especially in Lebanon, prescribed the death penalty for homosexuality. Some Ottoman criminal codes called for fines for sodomy, but others did not mention the offense. In 15th-century central Mexico, homosexual acts between men could be punished by disembowelment and smothering in hot ashes.During the late Middle Ages, many jurisdictions in Europe began to add prohibitions of sodomy to secular law. They also toughened enforcement, with vice squads appearing in some European cities. In some cases, sodomy was punished by investigation and denunciation, in others by fines, and in some cases by the burning of the participants or the location where the act had taken place. The death penalty for sodomy was common in early modern Europe. It is unclear how strictly sodomy laws were enforced; one theory is that enforcement was related to moral panics in which homosexuals were a scapegoat. English monarch Henry VIII codified the prohibition of homosexuality in England into secular law with the Buggery Act 1533, an attempt to gain the high ground in the religious struggle of the English Reformation. This law, based on the religious prohibition in Leviticus, prescribed the death penalty for buggery.
Impact of colonialism and imperialism
Many present-day jurisdictions criminalize homosexuality based on colonial criminal codes they adopted under British rule. The Indian Penal Code and its Section 377 criminalizing homosexuality were applied to several British colonies in Asia, Africa, and Oceania. The Wright Penal Code was drafted for Jamaica and ultimately adopted in Honduras, Tobago, St. Lucia, and the Gold Coast. The Stephen Code was adopted in Canada, expanding the criminalization of homosexuality to cover any same-sex activity. The Griffith Code was adopted in Australia and several other Commonwealth countries including Nauru, Nigeria, Kenya, Tanzania, Papua New Guinea, Zanzibar and Uganda, and in Israel. Once established, laws against homosexuality are often maintained by inertia and inclusion in postcolonial criminal codes. Some states adopted British-inspired laws criminalizing homosexuality on the basis of informal influence, while other former British colonies criminalize homosexuality under the influence of sharia law. Both China and Japan, which had not historically prosecuted homosexuality, criminalized it based on Western models in the nineteenth century.During the French Revolution in 1791, the National Constituent Assembly abolished the law against homosexuality as part of its adoption of a new legal code without the influence of Christianity. Although the assembly never discussed homosexuality, it has been legal in France since then. Previously it could be punished by burning to death, although this was infrequently enforced. The abolition of criminality for sodomy was codified in the 1810 penal code. Napoleon's conquests and the adoption of civil law and penal codes on the French model led to abolition of criminality in many jurisdictions and replacement of death with imprisonment in others. Via military occupation or emulation of the French criminal code, the Scandinavian countries, Spain, the Netherlands, Portugal, Belgium, Japan, and their colonies and territories—including much of Latin America—decriminalized homosexuality. Former French colonies are less likely than British ones to criminalize homosexuality. The Ottoman Empire is often considered to have decriminalized homosexuality in 1858, when it adopted a French-inspired criminal code, but Elif Ceylan Özsoy argues that homosexuality had already been decriminalized. However, some Ottoman men were executed for sodomy including two boys in Damascus in 1807.
The unification of Germany reversed some of the gains of the Napoleonic conquests as the unified country adopted the Prussian penal code in 1871, re-criminalizing homosexuality in some areas. In Germany, the prohibition of homosexuality was not frequently enforced until 1933. In Nazi Germany from 1933 to 1945, an estimated 57,000 men were convicted of violating Paragraph 175. Never before or since have so many homosexuals been convicted in such a short period of time. Thousands of men were imprisoned and killed in Nazi concentration camps. West Germany convicted about the same number of men under the same law until 1969, when homosexuality was partially decriminalized.
In the Russian Empire, homosexuality was criminalized in 1835 and decriminalized in 1917 as a result of the Russian Revolution. The criminalization was reinstated in 1934, with a harsher penalty than before, for unknown reasons.
Post-World War II decriminalization trend
In the decades after World War II, anti-homosexuality laws saw increased enforcement in Western Europe and the United States. During the 1950s and 1960s, there was a tendency to legalize homosexuality with a higher age of consent than for heterosexual relationships; this model was recommended by various international organizations to prevent young men from becoming homosexual. Convergence occurred both through the partial decriminalization of homosexuality, as in the United Kingdom, Canada, and West Germany, or through the partial criminalization of homosexuality, such as in Belgium, where the first law against same-sex activity came into effect in 1965.There was a wave of decriminalization in the late twentieth century; ninety percent of changes to these laws between 1945 and 2005 involved liberalization or abolition. Eighty percent of repeals between 1972 and 2002 were done by a legislature, and the remainder by the laws being ruled unconstitutional by a court. Decriminalization began in Europe and the Americas and spread globally in the 1980s. The pace of decriminalization reached a peak in the 1990s. Following the dissolution of the Soviet Union, many former Soviet republics decriminalized homosexuality, but others in Central Asia retained these laws. China decriminalized homosexuality in 1997. Following a protracted legal battle, the Supreme Court of India ruled that the criminalization of homosexuality violated the Constitution of India in the 2018 Navtej Singh Johar v. Union of India judgement.
One explanation for these legal changes is increased regard for human rights and autonomy of the individual and the effects of the 1960s sexual revolution. The trend in increased attention to individual rights in laws around sexuality has been observed around the world, but progresses more slowly in some regions, such as the Middle East. Studies have found that modernization, as measured by the Human Development Index or GDP per capita, and globalization was negatively correlated with the criminalization of homosexuality.
Resistance to decriminalization
Africa is the only continent where decriminalization of homosexuality has not been widespread since the mid-twentieth century. In Africa, one of the primary narratives cited in favor of the criminalization of homosexuality is "defending ordre public, morality, culture, religion, and children from the assumed imperial gay agenda" associated with the Global North. Such claims ignore the fact that many indigenous African cultures tolerated homosexuality, and historically the criminalization of homosexuality derives from British colonialism. In the Middle East, homosexuality has been seen as a tool of Western domination for the same reason.The application of international pressure to decriminalize homosexuality has had mixed results in Africa. While it led to liberalization in some countries, it also prompted public opinion to be skeptical of these demands and encouraging countries to pass even more restrictive laws in resistance to what is seen as neocolonial pressure. Politicians may also target homosexuality to distract from other issues. Following decolonization, several former British colonies expanded laws that had only targeted men in order to include same-sex behavior by women. Others, especially Muslim-majority countries in Africa, passed new laws to criminalize homosexual behavior. In many African countries, anti-homosexuality laws were little-enforced for decades only to see increasing enforcement, politicization, and calls for harsher penalties beginning in the mid-1990s. The rise of Evangelical Christianity and especially Pentecostalism has increased the politicization of homosexuality as these churches have been engaged in anti-homosexual mobilizations as a form of nation building. While such calls often come from domestic religious institutions, the influence of US conservative Christian groups, who have provided networking, training and funding support, has been instrumental in advancing anti-homosexual discourse in Africa.