In the late 1800s, in more than 40 British colonies, Great Britain instituted anti-sodomy laws and other prohibitions against sex between members of the same sex as part of a broader set of penal codes “carnal intercourse against the order of nature.” In several countries, this addition to the penal codes was called Section 377. In late 2018, Section 377 made headlines when India’s Supreme Court struck down the part of Section 377 that criminalized sex between members of the same-sex.
But hasn’t India been independent of British rule for decades?
Yes, but many of the colonial-era rules are still on the books, and not just in India. Section 377 is also law in other countries, including Malaysia, where two women were caned for merely attempting to have sex, CNN reported. According to the South China Morning Post, a Malaysian government minister recently ordered the portraits of two prominent local LGBTQ+ activists to be removed from a photography exhibit. Sodomy is punishable with a jail term of up to 20 years and whipping. Politician Anwar Ibrahim was convicted and imprisoned for sodomy twice.
Wow. So the laws criminalizing same-sex relations are colonial-era laws still practiced in former British colonies, even though Great Britain no longer rules those countries?
As of 2013, Section 377 was still law in more than 40 countries once colonized by Great Britain, according to the charity Kaleidoscope Trust. But laws like that are not unique to former British colonies, as other European nations had colonies, too. In 2014, sex between people of the same sex was illegal in 37 African countries, according to The Economist.
In 2014, professors Enze Han and Joseph O’Mahoney published a piece in the Washington Post detailing their research on laws that outlawed sex between people of the same sex, and they concluded that Great Britain’s role in these laws can’t be ignored. Han and O’Mahoney wrote:
We investigated whether and why there is variation in laws regulating and punishing homosexual conduct around the world. Looking at a variety of data on 185 countries, we found that former British colonies are much more likely to have laws that criminalize homosexual conduct than former colonies of other European powers, or than other states in general. For example, 57 percent of states with such a law have a British colonial origin. Almost 70 percent of states with a British colonial origin continue to criminalize homosexual conduct.
Why would countries keep British laws on the books if they are no longer under British rule?
A Quartz article from 2013 attempted to answer why “India and so many other ex-colonial countries cling so tightly to the moral whims of Victorian Englishmen that were never their own”:
One reason might be that morality codes give governments a way to build a national identity around shared values, often as a foil to permissive Western countries. But a more prosaic one is that anti-gay laws are also a handy way to fortify state control (as is now happening in Russia).
What’s more, they always have been. Section 377 originated from a 1536 English law instituted by Henry VIII. Legally speaking, it shifted the law from church courts to secular ones. In practice, it let Henry accuse Catholics of rampant sodomy, sullying the Papacy’s divine authority, argues Sanders. That turned out to be sufficient pretext for Henry to justify seizing monastic properties, claiming a huge portion of England’s landed wealth for the state.
The article also pointed out that many of the countries that kept Section 377 have also adopted Islamic sharia law.
This includes Brunei, where until 2017, homosexual sex was punishable by up to 10 years in prison, according to the Prime Minister’s office. In 2017, Section 377 of Brunei’s penal code was substituted with a new rule: “Whoever voluntarily has sexual intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for a term not exceeding 30 years and whipping.” In 2014, Bolkiah instituted Brunei’s Shariah Penal Code, which included harsh penalties for crimes, CBS News reported. After protests, Brunei delayed enforcing the most contested parts of the law, but in April of 2019, the harshest laws of that code went into effect. The new laws included death by stoning for sex between men or for adultery, and amputation of limbs for theft.
In the countries that haven’t adopted the death penalty as punishment for homosexuality, could Section 377 be repealed?
For now, Section 377 is still on the books in India and Malaysia, as well as many other former British colonies. In India, Section 377 had been used to prosecute people who had sex with members of the same sex, though that was not the sole purpose of the law, as “carnal intercourse against the order of nature” also included bestiality. The Supreme Court ruling only spoke to whether Section 377 could be applied to same-sex couples having sex.
The ruling seems to have inspired activists in other countries. The day that India’s Supreme Court issued its ruling, a veteran diplomat in Singapore called on that country’s LGBTQ+ community to challenge Section 377. Within a few days, a petition to keep the law in place had garnered more than 65,000 signatures.
But Katharine Adeney, director of the University of Nottingham Asia Research Institute, told Bloomberg that “although activists in neighboring countries such as Bangladesh are likely to use this judgement to press for the removal of Article 377 from their own penal laws, progress is much more unlikely in the other countries of South Asia.”
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