Decriminalization of homosexuality

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See also: Criminalization of homosexuality
Proportion of the world population living in a country where homosexual acts are not criminalized, 1760–2020

Decriminalization of homosexuality is the repeal of laws criminalizing same-sex acts between multiple men or multiple women. It has taken place in most of the world, except Africa and the Muslim world.

History[edit]

During the French Revolution in 1791, the National Constituent Assembly abolished the law against homosexuality as part of adopting a new legal code without the influence of Christianity. Although the assembly never discussed homosexuality, it has been legal in France ever since.[1][2] Previously it could be punished by burning to death, although this was infrequently enforced.[3][4] The abolition of criminality for sodomy was codified in the 1810 penal code.[5]

The decriminalization of homosexuality was spread across Europe by Napoleon's conquests and the adoption of civil law and penal codes on the French model, leading to abolition of criminality in many jurisdictions and replacement of death with imprisonment in others.[6][7] 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.[8] Confirmed by the French Criminal Code of 1810 and applied in the Napoleonic empire, decriminalization then became definitive in some states that emerged from the empire (Belgium, Luxembourg, Netherlands, some Swiss cantons), but was temporary in others which recriminalized in part (some Italian states) or in whole (Germany, Spain) in the 19th or 20th century.[9] It is the exception rather than the rule that civil law systems criminalized homosexuality.[10] Former French colonies are less likely than British ones to criminalize homosexuality,[11][12] although such laws have been added in some colonies that adopted French criminal codes, including Egypt, Tunisia, and Lebanon.[12] The Ottoman Empire is often considered to have decriminalized homosexuality in 1858, when it adopted a French-inspired criminal code,[13] but Elif Ceylan Özsoy argues that homosexuality was already decriminalized and this change of law actually penalized homosexuality more harshly than before because it introduced higher penalties for public displays of same-sex affection.[14]

Soviet Union[edit]

The Soviet government of the Russian Soviet Republic (RSFSR) decriminalised homosexuality in December 1917, following the October Revolution and the discarding of the Legal Code of Tsarist Russia.[15]

The legalisation of homosexuality was confirmed in the RSFSR Penal Code of 1922, and following its redrafting in 1926. According to Dan Healey, archival material that became widely available following the collapse of the Soviet Union in 1991 "demonstrates a principled intent to decriminalize the act between consenting adults, expressed from the earliest efforts to write a socialist criminal code in 1918 to the eventual adoption of legislation in 1922."[16]

The Bolsheviks also rescinded Tsarist legal bans on homosexual civil and political rights, especially in the area of state employment. In 1918, Georgy Chicherin, a homosexual man who kept his homosexuality hidden, was appointed as People's Commissar for Foreign Affairs of the RSFSR. In 1923, Chicherin was also appointed People's Commissar for Foreign Affairs of the USSR, a position he held until 1930.[17]

In the early 1920s, the Soviet government and scientific community took a great deal of interest in sexual research, sexual emancipation and homosexual emancipation. In January 1923, the Soviet Union sent delegates from the Commissariat of Health led by Commissar of Health Semashko[18] to the German Institute for Sexual Research as well as to some international conferences on human sexuality between 1921 and 1930, where they expressed support for the legalisation of adult, private and consensual homosexual relations and the improvement of homosexual rights in all nations.[15][18] In both 1923 and 1925, Dr. Grigorii Batkis [ru], director of the Institute for Social Hygiene in Moscow, published a report, The Sexual Revolution in Russia, which stated that homosexuality was "perfectly natural" and should be legally and socially respected.[19][18] In the Soviet Union itself, the 1920s saw developments in serious Soviet research on sexuality in general, sometimes in support of the progressive idea of homosexuality as a natural part of human sexuality, such as the work of Dr. Batkis prior to 1928.[20] Such delegations and research were sent and authorised and supported by the People's Commissariat for Health under Commissar Semashko.[15]

The legalisation of private, adult and consensual homosexual relations only applied to the Russian SSR and the Ukrainian SSR. Homosexuality remained a crime in Azerbaijan (officially criminalised in 1923), as well as in the Transcaucasian and Central Asian Soviet Republics throughout the 1920s.[21] Similar criminal laws were enacted in Uzbekistan in 1926 and in Turkmenistan the following year.[22]

Despite decriminalising homosexuality in 1917 wider Soviet social policy on the matter of wider homosexual rights and the treatment of homosexual people in the 1920s was often mixed. The Soviet courts still tried to repress sexual variation even when homosexuality was not a crime.[23] In the late 1920s, Soviet government towards homosexuality and homosexual rights underwent a change, and reversed its earlier openness to same-sex sexuality by implementing laws criminalizing male homosexuality in 1934.[24]

Post-World War II decriminalization trend[edit]

By 1958, Interpol had noticed a trend towards the partial decriminalization of homosexuality with a higher age of consent than for heterosexual relationships. This model was recommended by various international organizations. Convergence occurred both through the partial decriminalization of homosexuality (as in the United Kingdom, and many other countries) or through the partial criminalization of homosexuality (such as in Belgium, where the law increased the age of consent from 16 to 18 for same-sex sexual activity came into effect in 1965).[25] Overall, 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.[26] One explanation for these legal changes is increased regard for human rights and autonomy of the individual[27] and the effects of the 1960s sexual revolution.[28] 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.[29]

Eighty percent of repeals between 1972 and 2002 were done by the legislature and the remainder by the laws being ruled unconstitutional by a court.[30] The 1981 ruling in Dudgeon v. United Kingdom by the European Court of Human Rights was the first time that a court called for the decriminalization of homosexuality.[31] Unlike earlier decriminalizations, repeal was not coincidental with the adoption of a new system of criminal law but rather by means of a specific law to repeal criminal sanctions on homosexuality, beginning with Sweden in 1944.[32] Decriminalization, initially limited to Europe and the Americas, spread globally in the 1980s.[33] The pace of decriminalization reached a peak in the 1990s. Following the dissolution of the Soviet Union, many former Soviet republics decriminalized homosexuality,[34] but others in Central Asia retained these laws.[35] China decriminalized homosexuality in 1997.[36] 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.[37][38] In 2019, a plan to punish homosexuality in Brunei with a death sentence met with international outcry; as a result, there is a moratorium on the use of the death penalty.[38] Most Caribbean countries are former British colonies and retain the criminalization of homosexuality; Belize was the first to decriminalize it after the law was ruled unconstitutional in 2016.[39]

Caleb Orozco, the plaintiff in the case that led to Belize's law criminalizing homosexuality being struck down as unconstitutional
"Love is not a crime" signs at Paris Pride 2019

Studies have found that modernization, as measured by the Human Development Index or GDP per capita,[40] and globalization (KOF Index of Globalization) was negatively correlated having laws criminalizing homosexuality over time.[41] LGBT movements often developed after the repeal of criminal laws, but in some cases they contributed to repeal efforts.[42] LGBT activism against criminalization can take multiple forms, including directly advocating the repeal of the laws, strategic litigation in the judicial system in order to reduce enforceability, seeking external allies from outside the country, and capacity building within the community.[43] Although British colonization is associated with the criminalization of homosexuality, it has no effect on the likelihood of decriminalization.[44]

In 1981, the Council of Europe passed a resolution urging the decriminalization of homosexuality and the abolition of discriminatory age of consent laws.[45] Following the Dudgeon case the Council of Europe made decriminalization of homosexuality a requirement for membership, which in turn was a prerequisite for membership in the European Union; several European countries decided to decriminalize homosexuality as a result.[46] The Council of Europe admitted Lithuania in 1993 a few months before the country had repealed the criminalization of homosexuality; Romania was admitted the same year after promising to repeal its law but was still enforcing it in 1998.[47] Russia gave up its sodomy law in 1993 in part because of an aspiration to join the Council of Europe.[48] The last jurisdiction in Europe to decriminalize homosexuality was the self-proclaimed Turkish Republic of Northern Cyprus in 2014.[49]

Resistance to decriminalization[edit]

Further information: LGBT rights in Africa

Africa is the only continent where decriminalization of homosexuality has not been widespread since the mid-twentieth century.[50] 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; homosexuality is seen as an "un-African" foreign import.[51][52][53] Such claims ignore the fact that many indigenous African cultures tolerated homosexuality, and historically the criminalization of homosexuality derives from British colonialism.[54][55][52] In the Middle East, homosexuality has been seen as a tool of Western domination for the same reason.[56]

The Obama administration's policy of supporting the decriminalization of homosexuality forced African politicians to take a public stance against LGBT rights in order to retain their domestic support.[51] 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.[57][58][59] It has therefore been argued by some scholars such as Joseph Massad that the international LGBT movement does more harm than good in Africa or the Middle East, while some African LGBT organizations have urged Western countries not to leverage donor aid on LGBT rights issues.[60] In 2015, African academics launched a petition calling for the decriminalization of homosexuality and criticizing several common arguments against this move.[61] Politicians may also use homosexuality to distract from other issues.[27][53]

Following decolonization, several former British colonies expanded laws that had only targeted men in order to include same-sex behavior by women.[62] In many African countries, anti-homosexuality laws were little enforced for decades only to see increasing enforcement, politicization, and calls for harsher penalties since the mid-1990s.[63][64] Such calls often come from domestic religious institutions. The rise of Evangelical Christianity and especially Pentecostalism have increased the politicization of homosexuality as these churches have been engaged in anti-homosexual mobilizations as a form of nation building.[65] Cameroon had an anti-homosexuality law since 1962, but it was not enforced until 2005. That year both the Roman Catholic Church (especially Archbishop Simon-Victor Tonyé Bakot [fr] and Cardinal Christian Wiyghan Tumi) and the media began to make homosexuality a political issue.[66] As of 2020, Cameroon "currently prosecutes consensual same sex conduct more aggressively than almost any country in the world".[67] In Uganda, proposals to deepen the criminalization of homosexuality such as the so-called "Kill the Gays" bill have gained international attention.[68] Other African countries such as South Africa, Angola, Botswana, and Mozambique have decriminalized homosexuality.[69]

Adherence to Islam is also a major predictor of maintaining laws criminalizing homosexuality and the death penalty for it.[70][71][72] In some countries, criminalization of homosexuality derives from the application of sharia law.[12] State interference in religious matters, for example religious courts having jurisdiction beyond family law or bans on interfaith marriage, is strongly correlated with maintaining the criminalization of homosexuality.[73]

References[edit]

  1. ^ Sibalis 1996, pp. 81, 83.
  2. ^ Asal & Sommer 2016, p. 61.
  3. ^ Sibalis 1996, pp. 81, 96.
  4. ^ Asal & Sommer 2016, p. 55.
  5. ^ Asal & Sommer 2016, pp. 19, 55.
  6. ^ Whisnant 2016, p. 19.
  7. ^ Asal & Sommer 2016, p. 19.
  8. ^ Asal & Sommer 2016, pp. 19, 56.
  9. ^ Mignot 2022.
  10. ^ Asal & Sommer 2016, pp. 56–57.
  11. ^ Asal & Sommer 2016, p. 16.
  12. ^ a b c Tolino 2020, Criminalization of Same-Sex Relations: An Overview.
  13. ^ Ozsoy 2021, p. 1.
  14. ^ Ozsoy 2021, pp. 19–20.
  15. ^ a b c [Russia Under the Bolshevik Regime. E.H. Carr. 1994]
  16. ^ [Dan Healey, Homosexual Desire in Revolutionary Russia, 2001]
  17. ^ "Vol. 30, No. 2, Apr., 1971 of The Russian Review on JSTOR". www.jstor.org. Retrieved 2021-04-28.
  18. ^ a b c [Homosexual Desire in Revolutionary Russia. Healey. 132–133, 309]
  19. ^ [Die Sexualrevolution in Russland, Berlin: 1925 Grigorri Batkis]
  20. ^ ["Sexual Relations and the Class Struggle", Alexandra Kollontai, Selected Writings of Alexandra Kollontai, trans. Alix Holt (London: Allison & Busby, 1977), 241.]
  21. ^ Healey, Dan (2001). "Masculine Purity and 'Gentlemen's Mischief': Sexual Exchange and Prostitution between Russian Men, 1861-1941". Slavic Review. 60 (2): 233–265. doi:10.2307/2697270. JSTOR 2697270. PMID 18170950. S2CID 42687288.
  22. ^ Healey, Dan (2002). "Homosexual Existence and Existing Socialism: New Light on the Repression of Male Homosexuality in Stalin's Russia". GLQ: A Journal of Lesbian and Gay Studies. 8 (3): 349–378. doi:10.1215/10642684-8-3-349. S2CID 143578469.
  23. ^ Engelstein, Laura (1995). "Soviet policy toward male homosexuality: its origins and historical roots". Journal of Homosexuality. 29 (2–3): 155–178.
  24. ^ Dawsey, Jason. "A Double Defeat: Catastrophe for Gay Emancipation in Germany and the USSR". National WWII Museum.
  25. ^ Dupont 2019, Franco-Danish, but made in Holland, Conclusion.
  26. ^ Kane 2015, p. 277.
  27. ^ a b Kane 2015, p. 280.
  28. ^ Hildebrandt 2014, pp. 239, 241.
  29. ^ Karimi & Bayatrizi 2019, pp. 424–425.
  30. ^ Kane 2015, p. 279.
  31. ^ Hildebrandt 2014, p. 242.
  32. ^ Hildebrandt 2014, p. 239.
  33. ^ Hildebrandt 2014, p. 230.
  34. ^ Asal & Sommer 2016, pp. 24, 26.
  35. ^ Wirtz et al. 2013, p. S22.
  36. ^ Rich et al. 2020, State Policies.
  37. ^ Han & O'Mahoney 2018, p. 2.
  38. ^ a b Rich et al. 2020, What Gets Represented.
  39. ^ Han & O'Mahoney 2018, pp. 43, 95.
  40. ^ Hildebrandt et al. 2019, p. 2.
  41. ^ Asal & Sommer 2016, pp. 85, 89.
  42. ^ Kane 2015, pp. 283–284.
  43. ^ Anabtawi 2022, p. 388.
  44. ^ Han & O'Mahoney 2018, p. 41.
  45. ^ Torra 1998, p. 75.
  46. ^ Hildebrandt 2014, p. 244.
  47. ^ Torra 1998, pp. 78–80.
  48. ^ Alexander 2018, The MVD's Objections to Decriminalization.
  49. ^ Han & O'Mahoney 2018, pp. 90–91.
  50. ^ Mignot 2022, p. 121.
  51. ^ a b Kaoma 2018, p. 124.
  52. ^ a b Asal & Sommer 2016, p. 13.
  53. ^ a b Gloppen & Rakner 2020, pp. 200–201.
  54. ^ Gloppen & Rakner 2020, p. 200.
  55. ^ Kaoma 2018, p. 21.
  56. ^ Karimi & Bayatrizi 2019, p. 429.
  57. ^ Seckinelgin 2018, p. 3.
  58. ^ Kaoma 2018, pp. 125–126, 144.
  59. ^ Gloppen & Rakner 2020, p. 209.
  60. ^ Gloppen & Rakner 2020, p. 201.
  61. ^ Nordling 2015, pp. 135–136.
  62. ^ Human Dignity Trust 2016, p. 10.
  63. ^ Gloppen & Rakner 2020, pp. 195, 198–199.
  64. ^ Hildebrandt 2014, pp. 245–246.
  65. ^ Gloppen & Rakner 2020, pp. 199–200.
  66. ^ Awondo 2016.
  67. ^ Gloppen & Rakner 2020, p. 196.
  68. ^ Han & O'Mahoney 2018, pp. 70–71.
  69. ^ "5 Countries in Africa That Have Legalized Same-Sex Relationships in the Past 10 Years". Global Citizen. Retrieved 30 January 2022.
  70. ^ Arimoro 2021, p. 379.
  71. ^ Asal & Sommer 2016, pp. 11–12.
  72. ^ Kane 2015, pp. 281–282.
  73. ^ Asal & Sommer 2016, p. 87.

Sources[edit]

Further reading[edit]

  • Takács, Judit (2021). "Legalizing queerness in Central-Eastern Europe". The Routledge Handbook of Gender in Central-Eastern Europe and Eurasia. Routledge. ISBN 978-1-138-34776-2.
  • Novak, Andrew (2020). "Litigation and the Decriminalization of Homosexuality". Transnational Human Rights Litigation: Challenging the Death Penalty and Criminalization of Homosexuality in the Commonwealth. Springer International Publishing. pp. 115–170. ISBN 978-3-030-28546-3.
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