Sodomy law

A sodomy law is a law that defines certain sexual acts as crimes. The precise sexual acts meant by the term sodomy are rarely spelled out in the law, but are typically understood by courts to include any sexual act deemed unnatural. It also has a range of similar euphemisms. These acts typically include oral sex, anal sex and bestiality; in practice such laws have rarely been enforced against heterosexual couples.

Such laws have roots in antiquity, and are linked to religious proscriptions against certain sex acts. Contemporary supporters of sodomy laws argue that there are additional reasons for retaining them.

Sodomy laws can be found around the world. Today, consensual homosexual acts between adults are illegal in about 70 out of the 195 countries of the world; in 40 of these, only male-male sex is outlawed. This number has been in a progressive state of decline since the second half of the 20th century.

History
The Middle Assyrian Law Codes (1075 BC) state: If a man have intercourse with his brother-in-arms, they shall turn him into a eunuch. This is the earliest known law condemning the act of male to male intercourse in the military. The Lex Scantinia was written by the Romans. It includes laws restricting homosexual acts, but not banning the behavior. Utilizing male slaves as homosexual sex objects was not outlawed as long as the slave was on the receiving end.

Most anti-sodomy laws in Western countries originated from a Christian world-view established from the Bible. The New Testament has been said to condemn Sodomy; {Romans 1:24, 26-28} In England, Henry VIII introduced the first legislation under English criminal law against sodomy with the Buggery Act of 1533, making buggery punishable by hanging, a penalty not lifted until 1861.

Following Sir William Blackstone's Commentaries on the Laws of England, the crime of sodomy has often been defined only as the abominable and detestable crime against nature, or some variation of the phrase. This language led to widely varying rulings about what specific acts were encompassed by its prohibition.

After the publishing of the Wolfenden report in the UK, which asserted that "homosexual behaviour between consenting adults in private should no longer be a criminal offence", many western governments, including the United States, have repealed laws specifically against homosexual acts. In June 2003, the U.S. Supreme Court ruled in Lawrence v. Texas that state laws criminalizing private, non-commercial sexual activity between consenting adults at home on the grounds of morality are unconstitutional since there is insufficient justification for intruding into people's liberty and privacy.

All of Europe, North America, Latin America and South America have recently abolished sodomy laws (except for; Belize, Guyana and along with several Caribbean islands; including Antigua and Barbuda, Barbados, Dominica, Grenada, Jamaica, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines and Trinidad and Tobago). This trend among Western nations has not been followed in all other regions of the world (Africa, some parts of Asia, Oceania and the Caribbean Islands), where sodomy often remains a serious crime. Homosexual acts remain punishable by death in Iran, Mauritania, Saudi Arabia, Sudan, United Arab Emirates, Yemen, some parts of Nigeria and Somalia. Prison for life in : Barbados (Not enforced for acts in private – under review) Bangladesh, Guyana, Maldives, Myanmar/Burma, Pakistan, Qatar, Sierra Leone, Tanzania and Uganda.

In Asia, there have never been Western-style Sodomy laws in People's Republic of China, Taiwan, North Korea, South Korea, or Vietnam; whilst Sodomy laws have been repealed in Japan, Kazakhstan, The Philippines, Thailand, and India. Other discriminatory measures may exist against homosexuals in these countries.

Australia
Australia inherited the United Kingdom's sodomy laws on colonisation in 1788. These were retained in the criminal codes passed by the various colonial parliaments during the 19th century, and by the state parliaments after Federation.

Following the Wolfenden report, the Dunstan Labor government introduced a consenting adults in private type legal defence in South Australia in 1972. This defence was initiated as a bill by Murray Hill, father of former Defence Minister Robert Hill, and repealed the state's sodomy law in 1975. The Campaign Against Moral Persecution during the 1970s raised the profile and acceptance of Australia's gay and lesbian communities, and other states and territories repealed their laws between 1976 and 1990. The exception was Tasmania, which retained its laws until the Federal Government and the United Nations Human Rights Committee forced their repeal in 1997. The details are given in the book Living out Loud: A History of Gay and Lesbian Activism in Australia. Male homosexuality was decriminalised in the Australian Capital Territory in 1976, then Norfolk Island in 1993, following South Australia in 1975 and Victoria in 1981. At the time of legalization (for the above), the age of consent, rape, defences, etc. were all set gender-neutral and equal. Western Australia legalised male homosexuality in 1989 – Under the Law Reform (Decriminalization of Sodomy) Act 1989, as did New South Wales and the Northern Territory in 1984 with unequal ages of consent of 18 for New South Wales and the Northern Territory and 21 for Western Australia. Then since 1997, the states and territories that retained different ages of consent or other vestiges of sodomy laws have tended to repeal them later; Western Australia did so in 2002, and New South Wales and the Northern Territory did so in 2003. Tasmania was the last state to decriminalise sodomy, doing so in 1997 after the groundbreaking cases of Toonen v Australia and Croome v Tasmania (it is also notable that Tasmania was the first jurisdiction to recognize same-sex couples in Australia since 2004 under the Relationships Act 2003.) Currently, the age of consent for anal sex in Queensland is higher at eighteen, as opposed to sixteen for both oral sex and vaginal sex (as the same in Canada) under section 208 of the Queensland Criminal Code.

Brazil
Brazilian criminal law does not punish any sexual act performed by consenting adults, but allows for prosecution, under statutory rape laws and the children's protection act, when one of the participants is under 14 years of age and the other an adult, as per Articles 214, 223, 224 and 225 of the Brazilian Penal Code and Articles 240 and 244-A of the Estatuto da Criança e do Adolescente – Law 8.069. Article 235 of the Brazilian Military Criminal Code – DL 1.001/69-, however, does incriminate any contact deemed to be libidinous,  be it of a homosexual nature or not, made in any location subject to military administration. Since the article is entitled Of pederasty or other libidinous acts, gay rights advocates claim that, since the Brazilian armed forces are composed almost exclusively of males, the article allows for  witch-hunts against homosexuals in the military service.

Canada
Before 1859, Canada relied on British law to prosecute sodomy. In 1859, Canada repatriated its buggery law in the Consolidated Statutes of Canada as an offense punishable by death. Buggery remained punishable by death until 1869. A broader law targeting all homosexual male sexual activity ("gross indecency") was passed in 1892, as part of a larger update to the criminal law. Changes to the criminal code in 1948 and 1961 were used to brand gay men as "criminal sexual psychopaths" and "dangerous sexual offenders." These labels provided for indeterminate prison sentences. Most famously, George Klippert, a homosexual, was labelled a dangerous sexual offender and sentenced to life in prison, a sentence confirmed by the Supreme Court of Canada. He was released in 1971.

Canadian law now permits anal sex by consenting parties above the age of 18, provided no more than two people are present. The bill repealing Canada's sodomy laws was the Criminal Law Amendment Act, 1968-69 (Bill C-150), which received royal assent on June 27, 1969. The bill had been introduced in the House of Commons by Pierre Trudeau, who famously stated that "there's no place for the state in the bedrooms of the nation". In the 1995 Court of Appeal for Ontario case R. v. M. (C.), the judges ruled that the relevant section (section 159) of the Criminal Code of Canada violated section 15 of the Charter of Rights and Freedoms when one or both of the partners are 16 to 18 years of age; this has not been tried in court again.

A similar decision was made by the Quebec Court of Appeal in the 1998 case R. v. Roy.

Exceptions are made between a married husband and wife, where it is legal if they are married.

China, People's Republic of
Sodomy was never explicitly criminalized in China. The Chinese Supreme Court ruled in 1957 that voluntary sodomy was not a criminal act. Private sex in any form between two consenting adults does not violate laws. However, if someone under 18 is involved, the adult partner will be prosecuted. In a notable case in 2002, a man who had anal intercourse with a teenager was sentenced to three and a half years in prison.

Hong Kong
"Homosexual Buggery". In Hong Kong SAR, according to the Hong Kong Crimes Ordinance Section 118C, both of the two men must be at least 21 to commit homosexual buggery legally or otherwise both of them can be liable to life imprisonment. Sect 118F states that committing homosexual buggery not privately is also illegal and can be liable to imprisonment for 5 years.

"Heterosexual Buggery". A man who commits buggery with a girl under 21 can also be liable to life imprisonment (Sect 118D) while no similar laws concerning committing heterosexual buggery otherwise than in private.

In 2005, Judge Hartmann found these 4 laws: Sect 118C, 118F, 118H, and 118J were discriminatory towards gay male and unconstitutional against the Hong Kong Basic Law and Bills of Rights Ordinance in the judicial review filed by a Hong Kong citizen. It was believed that the age of consent had been reduced from 21 to 16 for any kind of homosexual sex acts. However, there were still individuals caught in spite of the judgement and there have been both cases in which the defendants were judged guilty and not guilty. Still, no revision has been made to the 4 deemed unconstitutional laws so far.

Macau
In Macau SAR, according to Código Penal de Macau Article 166 & 168, committing anal coitus with whomever under the age of 17 is a crime and shall be punished by imprisonment of up to 10 years (committing with whoever under 14) and 4 years (committing with whoever between 14 and 16) respectively.

Taiwan
In Taiwan, the Criminal Code of Republic of China Article 10 officially defines anal intercourse to be a form of sexual intercourse, along with vaginal and oral intercourse. The age of consent is 18, and Article 277 and the Child and Youth Sexual Transaction Prevention Act Article 22 make it a criminal offense to engage in sexual contact with minors. The law is written in gender neutral terms and does not discriminate against homosexual conduct.

Denmark
In 1933 Denmark became the third country in Europe to fully legalize homosexuality. The age of consent has been set at 15 since 1977.

France
Since the Penal Code of 1791, France has not had laws punishing homosexual conduct per se between over-age consenting adults in private. However, other qualifications such as "offense to good mores" were occasionally retained in the 19th century (see Jean Jacques Régis de Cambacérès).

In 1960, a parliamentary amendment by Paul Mirguet added homosexuality to a list of "social scourges", along with alcoholism and prostitution. This prompted the government to increase the penalties for public display of a sex act when the act was homosexual. Transvestites or homosexuals caught cruising were also the target of police repression.

In 1981, the 1960 law making homosexuality an aggravating circumstance for public indecency was repealed. Then in 1982, under president François Mitterrand, the law from 1942 (Vichy France) making the age of consent for homosexual sex higher (18) than for heterosexual sex (15) was also repealed, despite the vocal opposition of Jean Foyer in the National Assembly.

Germany
Paragraph 175, which punished "fornication between men", was eased to an age of consent of 21 in East Germany in 1957 and in West Germany in 1969. This age was lowered to 18 in the East in 1968 and the West in 1973, and all legal distinctions between heterosexual and homosexual acts were abolished in the East in 1988, with this change being extended to all of Germany in 1994 as part of the process of German Reunification.

In modern German, the term Sodomie has a meaning different from the English word "sodomy": it does not refer to anal sex, but acts of Zoophilia.

Gibraltar
Section 115 of the Criminal Offences Act prohibits "buggery with another person or with an animal" and Section 116 prohibits "an act of gross indecency with another man", with the proviso that "Where the acts constituting the offences referred to in sections 115 and l16, occurred in private between two men who consented thereto and at the time were over the age of 18 neither of such persons shall be guilty of an offence". This has the unusual effect of permitting anal sex with a man, but not with a woman. Furthermore "in private" is defined as only between two persons, i.e. the presence of a third person makes it an offence. Also of note is the discriminatory age of consent which is 16 for heterosexual and lesbianism acts, but 18 for gay men.

Hungary
Homosexuality in Hungary was decriminalized in 1962, Paragraph 199 of the Hungarian Penal Code from then on threatened "only" adults over 20 who engaged themselves in a consensual same-sex relationship with an underaged person between 14 and 20. Then in 1978 the age was lowered to 18. Since 2002, by the ruling of the Hungarian Constitutional Court repealed Paragraph 199 – Which provided an equal age of consent of 14, regardless of sexual orientation and/or gender. Since 1996, the Unregistered Cohabitation Act 1995 was provided for any couple, regardless of gender and/or sexual orientation and from the 1 July 2009 the Registered Partnership Act 2009 becomes effective, and provides a registered partnership just for same-sex couples – since that opposite-sex already have marriage, this would in-turn create duplication.

Iceland
Homosexuality has been legal in Iceland since 1940, but equal age of consent was not approved until 1992. Civil union was legalised by Alþingi in 1996 with 44 votes pro, 1 con, 1 neutral and 17 not present. Those laws were changed to allow adoption and artificial insemination for lesbians 27 June 2006 among other things. Same-sex marriage was legalised in 2010.

India
India inherited anti-sodomy laws in its criminal code from the British Raj, which were not present in its history of codified or customary legal system before. Since that section of Indian law, Section 377 of the Indian Penal Code violated the fundamental right of life and liberty and the right to equality as guaranteed by the Constitution of India, it was read down by the Delhi High Court on July 2, 2009 in so far that it can no longer be applied to consensual sex between adults (of any gender) in private. Section 377 called for a maximum punishment of life imprisonment for all carnal intercourse against the order of nature with any man, woman or animal (primarily interpreted to be homosexuality, especially sodomy, including between consenting adults). This law had rarely been executed, if at all, in case of consenting adults, although sometimes was in the news when a homosexual rapist was apprehended. Police repression in alleged or real gay bars is common, and is often highlighted by the contemporary media. Same-sex marriages are de jure banned.

Israel
The State of Israel inherited its sodomy ("buggery") law from the British Mandate of Palestine but there is no record that it was ever enforced against homosexual acts that took place between consenting adults in private. In the late 1960s the Supreme Court of Israel ruled that these laws could not be enforced and they were formally repealed by the Official legislature in 1988. The age of consent for both heterosexuals and homosexuals is sixteen years of age.

Italy
In modern-day republican Italy, same-sex intercourse between consenting adults, as well as anal sex between heterosexual partners above the legal age of consent is not punishable as a felony.

Japan
In the Meiji Period, sex between men was punishable under the sodomy laws announced in 1872 and revised in 1873. This was changed by laws announced in 1880 （ja:同性愛）. Since that time no further laws criminalizing homosexuality have been passed. From 1 January 2008 sexual acts are governed by the Anti-Prostitution Law and sex related to children under 18 are protected by Law for Punishing Acts Related to Child Prostitution and Child Pornography, and for Protecting Children.

Korea, North
Although no homosexual related laws are currently known in North Korea, the government states that while they respect those who are homosexuals, they reject many western gay cultures as they embrace consumerism, classism and promiscuity.

Korea, South
Sexual relationships between same sex are regarded as sexual harassment in the Military Penal Code.

Malaysia
Section 377 of the penal code prohibits heterosexual and homosexual sodomy with punishments including up to twenty years in prison and/or fines and flogging.

New Zealand
New Zealand inherited the United Kingdom's sodomy laws in 1854. The Offences Against The Person Act of 1867 changed the penalty of buggery from execution to life imprisonment for "Buggery". In 1961 in a revision of the Crimes Act, the penalty was reduced to a maximum of 7 years between consenting adult males.

Homosexual sex was legalised in New Zealand as a result of the passage of the Homosexual Law Reform Act 1986. The age of consent was set at 16 years, the same as for heterosexual sex LGBT rights in New Zealand.

Since 4 September 2007 two out of the three territories of New Zealand (Niue and Tokelau) legalized homosexuality with an equal age of consent as well by the Niue Amendment Act 2007. Cook Islands still has a sodomy law on the books Crimes Act (1969), s153 and a155.

Poland
Poland is one of the very few countries in the world where homosexuality was never considered a crime by the state of law. Forty years after Poland lost its independence in 1795, the sodomy laws of Russia, Prussia, and Austria came into force in the occupied Polish lands. They were officially abandoned in 1932, even though they had had actually no power since Poland regained its independence in 1918.

In fact, medieval Polish has a word for today’s "gay": mężołóstwo (that could be translated into English as manication).

Russia
In Russia sexual activity between males was criminalized by state law on March 4, 1934. Sexual activity between females was not mentioned in the law. On May 27, 1993, homosexual acts between consenting males were decriminalized.

Singapore
Section 377A of the Singapore Penal Code criminalizes ("outrages on decency") additionally punishes commission, solicitation, or attempted male same-sex "gross indecency", with imprisonment up to two years. Prior to October 2007 Singaporean Section 377 was added by the British colonial administration in 1858, replacing Hindu law at the time which had not criminalized consensual same-sex sexuality. In October 2007, Singapore has "repealed" section 377 in the Penal Code it will reduce the maximum sentence for male-male sex to just a maximum term of 2 years in prison under "maintained" section 377A.

Sweden
Sweden legalized homosexuality in 1944. The age of consent is 15, regardless of whether the sexual act is heterosexual or homosexual, since equalization in 1972. The Swedish Crime Law (SFS 1962:700), chapter six ('About Sexual Crimes'), shows gender-neutral terms and does not distinguish between sexual orientation. The only sexual act specifically mentioned in the law is intended indecent exposure (SUS 1762:779), chapter seventeen.

Thailand
Sodomy was decriminalized in Thailand in 1956.

United Kingdom
Sodomy was historically known in England and Wales as buggery, and is usually interpreted as referring to anal intercourse between two males or a male and a female. In England and Wales Buggery was made a felony by the Buggery Act in 1533, during the reign of Henry VIII. The punishment for those convicted was the death penalty right up until 1861. A lesser offence of "attempted buggery" was punished by 2 years of jail and some time on the pillory. In 1885, Parliament enacted the Labouchere Amendment, which prohibited gross indecency between males, a broad term that was understood to encompass most or all male homosexual acts. Following the Wolfenden report, sexual acts between two adult males, with no other people present, were made legal in England and Wales in 1967, in Scotland in 1980 and Northern Ireland in 1982. The three UK crown territories also did this as well since 1983 in Guernsey, since 1990 in Jersey and also since 1992 on the Isle of Man.

In the 1980s and 1990s, attempts were made by gay rights organizations to equalize the age of consent for heterosexuals and homosexuals, as the age of consent for homosexuals was set at 21, while the age of consent for heterosexuals was 16. Efforts were also made to modify the "no other person present" clause so that it dealt only with minors. In 1994, Conservative MP Edwina Currie introduced an amendment to Criminal Justice and Public Order Bill which would have lowered the age of consent to 16. The amendment failed, but a compromise amendment which lowered the age of consent to 18 was accepted. Therefore the age of consent disparity remained, albeit reduced. However, the July 1, 1997 decision in the case Sutherland v. United Kingdom resulted in the Sexual Offences (Amendment) Act 2000 which further reduced it to 16, and the "no other person present" clause was modified to "no minor persons present". Today, the universal age of consent is 16 in England, Scotland, Wales and Northern Ireland. The Sexual Offences NI Order 2008 brought Northern Ireland into line with the rest of the United Kingdom on the 2 February 2009 (prior to that, the age of consent for both heterosexuals and homosexuals was 17). The three UK crown territories also have an equal age of consent at 16 since 2006 on the Isle of Man, since 2007 in Jersey and since 2010 in Guernsey.


 * Age of consent Europe

United States
Sodomy laws in the United States were largely a matter of state rather than federal jurisdiction, except for laws governing the U.S. Armed Forces. By 2002, 36 states had repealed all sodomy laws or had them overturned by court rulings. The remaining sodomy laws were invalidated by the 2003 U.S. Supreme Court decision Lawrence v. Texas.

As for the U.S. Armed Forces, because "the military is, by necessity, a specialized society separate from civilian society," its ban on sodomy, Article 125 of the Uniform Code of Military Justice, is not entirely without force despite Lawrence v. Texas. The Court of Appeals for the Armed Forces has ruled that the Lawrence v. Texas decision applies to Article 125. In both United States v. Stirewalt and United States v. Marcum, the court ruled that the "conduct falls within the liberty interest identified by the Supreme Court," but went on to say that despite the application of Lawrence to the military, Article 125 can still be upheld in cases where there are "factors unique to the military environment" that would place the conduct "outside any protected liberty interest recognized in Lawrence." Examples of such factors could be fraternization, public sexual behavior, or any other factors that would adversely affect good order and discipline. Convictions for consensual sodomy have been overturned in military courts under the Lawrence precedent in both United States v. Meno and United States v. Bullock.

Zimbabwe
Zimbabwe's President Robert Mugabe has waged a violent campaign against homosexuals, claiming that before colonization Zimbabweans did not engage in homosexual acts. His first major public condemnation of homosexuality came in 1995 during the Zimbabwe International Book Fair in August 1995. He told the audience that homosexuality: "...Degrades human dignity. It's unnatural and there is no question ever of allowing these people to behave worse than dogs and pigs. If dogs and pigs do not do it, why must human beings? We have our own culture, and we must re-dedicate ourselves to our traditional values that make us human beings... What we are being persuaded to accept is sub-animal behaviour and we will never allow it here. If you see people parading themselves as lesbians and gays, arrest them and hand them over to the police!"

In September 1995, Zimbabwe's parliament introduced legislation banning homosexual acts. In 1997, a court found Canaan Banana, Mugabe's predecessor and the first President of Zimbabwe, guilty of 11 counts of sodomy and indecent assault. Banana's trial proved embarrassing for Mugabe, when Banana's accusers alleged that Mugabe knew about Banana's conduct and had done nothing to stop it. Regardless, Banana fled Zimbabwe only to return in 1999 and served one year in prison for his homosexual acts. Banana was also stripped of his priesthood.