British Colonialism and the Criminalization of Homosexuality

Queens, Crime and Empire

Enze Han, Joseph O'Mahoney

• Publisher: Taylor & Francis
• Year: 2018
• Print ISBN: 9780815367925
• eBook ISBN: 9781351256186
• Edition: 1
• Topic: Social Sciences
• Subtopic: Gender Studies
• Index: Social Sciences

British Colonialism and the Criminalization of Homosexuality examines whether colonial rule is responsible for the historical, and continuing, criminalization of same-sex sexual relations in many parts of the world.

Enze Han and Joseph O'Mahoney gather and assess historical evidence to demonstrate the different ways in which the British empire spread laws criminalizing homosexual conduct amongst its colonies. Evidence includes case studies of former British colonies and the common law and criminal codes like the Indian Penal Code of 1860 and the Queensland Criminal Code of 1899. Surveying a wide range of countries, the authors scrutinise whether ex-British colonies are more likely to have laws that criminalize homosexual conduct than other ex-colonies or other states in general They interrogate the claim that British imperialism uniquely 'poisoned' societies against homosexuality, and look at the legacies of colonialism and the politics and legal status of homosexuality across the globe.

1
Introduction

In January 2018, the Indian Supreme Court ordered a review of section 377 of the Indian penal code (IPC).¹ This section criminalizes consensual sex between men, with a possible sentence of life imprisonment. Why does India have such a law? Does its origin lie in ancient religious or cultural taboos on homosexuality? Did the recent rise in Hindu nationalism lead to a crackdown on perceived deviance? Was there an upsurge in Indian civil society against Lesbian, Gay, Bisexual, and Transgender (LGBT) lifestyles? No. In fact, this law was imposed during the British Raj over 150 years ago and has remained unchanged since. Was India singularly unlucky in this regard, a victim of the oddities of historical happenstance? If we look at Singapore, or Malaysia, or Brunei, each country has a law, numbered section 377, or 377A, criminalizing homosexual conduct to some degree. This is not a coincidence. These laws were also imposed during British imperial rule and have survived to the present. In this book, we show that, in fact, many other countries have laws proscribing sexual relations between men that date back in some way to the influence of the British Empire.²

At a time when many in the West have already been celebrating the legalization of same-sex marriage, it is still a daunting reality that homosexuality remains a punishable crime in countries around the world. The most recent report released by the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) shows that, although consensual homosexual conduct is legal in 124 states and territories, there are still 72 countries that continue the criminalization of homosexual relations.³ In many of these places, LGBT communities continue to face persecution because of their sexual orientation and many face lengthy imprisonment and cruel treatment. For example, in May 2010, a gay couple in Malawi was found guilty of “unnatural acts” and faced charges of up to 14 years in prison, under sections 153 and 156 of Malawi’s criminal code.⁴ Similarly, in 2014, two Ugandan men were also tried on the charge of homosexuality and faced possible life imprisonment.⁵ Worse still is that in some countries, homosexual conduct can even lead to the death penalty. In September 2011, three men were executed for sodomy in Iran.⁶ These executions were all undertaken with reference to articles 108 and 110 of the Islamic penal code.

While these scenes are horrific, there is cause for hope. In a wide variety of countries, social attitudes towards the LGBT community are becoming ever more tolerant, and efforts to decriminalize homosexuality have been ongoing. The Indian case has been a roller coaster in recent years. On July 3, 2009, New Delhi’s High Court ruled that homosexual conduct should not be deemed a criminal offense, challenging more than a century of criminalization of homosexuality in India since the British introduced the IPC in 1862. However, four years later, in 2013, after appeals made by religious groups, the Indian Supreme Court reversed that ruling saying that it was up to parliament to legislate on the issue. At the time of writing this legal battle in India is still ongoing.⁷ More hopefully, several countries have successfully decriminalized consensual homosexual conduct. The Turkish Republic of Northern Cyprus, a non-state entity unrecognized except by Turkey, reformed its penal code in 2014, removing such criminalization, making it the last territory in Europe to have decriminalized homosexuality. Elsewhere, several sovereign states have got rid of their sodomy laws in the last few years. For example, Nauru in the South Pacific⁸ and Seychelles in the Indian Ocean⁹ legalized homosexuality in May 2016. Later that year, Belize’s Supreme Court overturned its law criminalizing homosexual conduct.¹⁰ So considerable progress has recently been made to remove the legal restrictions of the past.

These last three countries are all former British colonial possessions of one type or another. The link between British colonialism and currently having anti-gay laws is strong. Of the 72 countries with such a law in 2018, at least 38 of them were once subject to some sort of British colonial rule.¹¹ This kind of correlation seems convincing on its face, but is there any additional reason to think that these laws are actually the result of, or the fault of, the British Empire?

The legacies of British colonialism

There has been a rich literature detailing the impact of colonialism on the rest of the world. For some, western colonialism is at the very root of underdevelopment in the developing world, because colonial powers not only plundered natural resources of the colonies, but “colonialism created ineffective legal-administrative institutions, empowered local chiefs and notables, and thereby institutionalized decentralized and despotic systems of control.”¹² Furthermore, western colonialism has been blamed for the impoverishment, violence, and destruction of indigenous forms of knowledge, culture, and property. However, for many others, the legacies of western colonialism are much more nuanced. Instead, many studies have found that the identity of the colonizer matters a great deal for the socioeconomic and cultural institutions of postcolonial countries, which in turn affects the economic growth rates of these countries.¹³ Others have also found that different colonial experiences are closely associated with countries’ democratic credentials and survival.¹⁴

Some have argued that there have been positive contributions brought by British colonialism to some of their former colonies.¹⁵ Lange, Mahoney, and vom Hau, for example, argue that the colonialism of liberal Britain, in comparison with mercantilist Spain, tended to produce positive effects in its colonies’ economic development. That is, British colonialism spread a liberal model that “organizes productive activity toward maximizing profit through exchange in free markets … [and] political authorities use the state to uphold private property, encourage commercial production, and enforce the rule of law.”¹⁶ The common law legal system introduced or imposed by the British has also been lauded for its better protection of property rights and contribution to better government performance as well as being a better guarantee for freedom.¹⁷ Furthermore, British colonialism has been credited for its positive legacy on democratic development in its former colonies.¹⁸ The parliamentary system, election for local self-governing bodies, superior infrastructure, and indirect ruling style have all been pointed out as indicators of the benign British colonial legacy and causes for healthier democratic development in former British colonies.¹⁹ Other studies have found much more mixed results, such as Verghese’s finding that provinces of India formerly ruled by the British experience more caste and tribal violence in contemporary India, but former princely states experience more religious conflict.²⁰

As we show in this book, one particularly dark legacy left by British colonial history is that British colonialism might have been especially detrimental towards LGBT rights in colonial societies. From 1860 onwards, the British Empire spread a specific set of legal codes and common law throughout its colonies including the prominent examples of the colonial criminal codes of India and Queensland, both of which specifically criminalized male-to-male sexual relations, though by long-term imprisonment rather than death. For example, section 377 of the Indian penal code (IPC) read as follows:

Section 377: Unnatural offences – Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment … for a term which may extend to 10 years, and shall be liable to fine.

Explanation – Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this Section.

The IPC was the first comprehensive codified criminal law produced anywhere in the British Empire.²¹ Fearful that its “soldiers and colonial administrators – particularly those without wives at hand – would turn to sodomy in these decadent, hot surroundings,” the British Empire drafted the IPC with the intention of both protecting the Christians from “corruption” as well as correcting and Christianizing “native” custom.²² At the time, British colonial judicial officers were often inexperienced lay magistrates without legal resources and relied upon importing extant examples of criminal regulations. Thus, the IPC, together with the Queensland criminal code of 1899 (QCC), and others, became the model for many British colonies’ legal systems, and was exported and imposed on various other British colonial acquisitions throughout Asia, Africa, and beyond. Thus, through its colonial administration, the British managed to impose and institutionalize a set of laws in its colonies that criminalized homosexual conduct.

In contrast with the British experience, the other big colonial power – France – left a very different institutional legacy as regards consensual homosexual conduct. Due to developments in Enlightenment concepts of liberty and rights after the French Revolution, the French penal code of 1791 decriminalized sodomy between overage consenting adults in private. This code was subsequently spread by Napoleon’s conquests in continental Europe and through the French Empire.²³ The French thus did not leave the same institutional legacy on its colonies that the British did. These historical institutional legacies may have had more of an influence on current national laws than other factors that are more specific to LGBT rights in particular. Sanders takes a strongly stated position on the role of colonialism: “Of the great colonial powers of Western Europe – Britain, France, Germany, the Netherlands, Portugal and Spain – only Britain left this legacy to its colonies.”²⁴ The claim that countries once colonized by the British are more likely to have such criminalization legislation in their law books is prominent in the literature. However, such a claim has so far not been adequately evaluated.

Argument and structure of the book

This book represents an effort to document the legacy of British colonialism on the criminalization of homosexuality throughout the world. In this book, we not only look at how British colonial administrations introduced a variety of legal codes that included provisions targeted at homosexual conduct, but we also analyze the longevity of such a legal legacy. Specifically, has it been more difficult for post-independence countries with a British legacy to get rid of criminalization?

First, we look at the historical evidence of whether and how colonies received their criminalization laws from the British Empire. As is common in imperial history, there are multifarious situations and processes. We find some clear-cut cases of direct imposition, some cases of informal influence of various types, and we also discover that in some cases the current laws cannot, in fact, be attributed to the British legacy. The second type of evidence that we investigate is a large-n dataset of 185 countries. We use systematic data analysis to find out whether modern states are more likely to currently criminalize homosexuality if they were a British colony than if they were not. We also ask whether former British colonies are less likely or slower to decriminalize on average than the former colonies of other European imperialists. In order to deal with several plausible alternative hypotheses, we control for numerous other variables that might be expected to influence the likelihood of repressive LGBT rights legislation, like religion, wealth, democracy, and others.

The boo...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Acknowledgments
• 1 Introduction
• 2 The history of British colonialism and the spread of criminal law and penal codes criminalizing homosexuality
• 3 Empirical analysis of colonial legacies around the world
• 4 Continuing criminalization of homosexuality in several former British colonies
• 5 Decriminalization of homosexuality in several former British colonies
• 6 Conclusion
• Bibliography
• Index