Criminalization of homosexuality
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.
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.
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.
In the sixth century, Byzantine emperor Justinian introduced other laws against same-sex sexuality, referring to such acts as "contrary to nature".
[18][19] 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.
[25] 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.
[30] 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.
[31][32] 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.
[38] 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.
[51] 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.
[63] 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.
[59][66] Following decolonization, several former British colonies expanded laws that had only targeted men in order to include same-sex behavior by women.
[74][75] 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.
[76][77] 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.
[115][116] In Egypt, possession of condoms or sexual lubricant or stereotypically feminine characteristics are cited as circumstantial evidence that the suspect has committed sodomy.
[117] Physical examinations purporting to detect evidence of homosexual practices have been employed since at least 1857, when the French physician Auguste Ambroise Tardieu published a book claiming to identify several signs that a person had participated in receptive anal intercourse.
[118][119] As of 2018[update], at least nine states, including Tanzania, Egypt, and Tunisia, use medically discredited anal examinations in an effort to detect same-sex acts between men or transgender women.
[107][47] Homosexuals may fear prosecution[124] and are put at risk of blackmail,[125][126] arbitrary arrest and imprisonment, police beatings, and involuntary medical interventions.
[137] 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.
[138] A 1986 study found that the decriminalization of homosexuality in South Australia did not lead to an increase in undesirable effects (such as child abuse, public solicitation, or disease transmission) as claimed in parliamentary debates.
Criminalization both reinforces societal disapproval of homosexuality, which is another factor in decreasing the effectiveness of anti-HIV efforts and is independently associated with less access to HIV services.
[146][147] According to the Maliki, Shafi'i, Hanbali (Sunni), and Ja'afari (Shia) schools, any penetrative sex outside of marriage or between a man and his female slave is zina, a more serious crime.
[163] Both Philo of Alexandria[164] and Heinrich Himmler believed that if allowed to spread unchecked, homosexuality would lead to depopulation; therefore, they advocated harsh punishments.
[168] Before the medicalization of homosexuality in the nineteenth and twentieth centuries, it was commonly seen as a vice, similar to drunkenness, that occurred as a result of moral degradation rather than being an innate predisposition.
[171] Soviet officials argued that homosexuality was a social danger that contravened socialist morality, and that criminalization was an essential tool to lower its prevalence.
[133][177] Criticism of the criminalization of homosexuality began to be expressed by Enlightenment thinkers such as legal philosopher Cesare Beccaria in his 1764 treatise On Crimes and Punishments.
[187][188] The 1957 Wolfenden Report, which proposed the decriminalization of homosexuality in the United Kingdom, sparked a famous debate between Lord Devlin, H. L. A. Hart, and others about whether the law was a suitable instrument for the enforcement of morality when the interests of non-consenting parties are not affected.
Utilitarian philosopher Jeremy Bentham wrote the first systematic defense of sexual freedom, arguing that homosexuality and other forms of consensual sex were morally acceptable as they were pleasurable to their participants and forbidding these acts destroyed a great deal of human happiness.
[192] His demand for equality before the law and in religion on the basis of an innate, biologically based sexual drive—beginning with the decriminalization of homosexuality and ending with same-sex marriage—are similar to those sought by LGBT rights organizations in the twenty-first century.
The commission recommended that Jamaica repeal the laws against same-sex activity in order to guarantee the non-repetition of similar human rights abuses in the future.
