Queer Crimes & Criminal Justice

Mithilesh Narayan Bhatt

• Publisher: Routledge
• Year: 2022
• Print ISBN: 9781032283074
• eBook ISBN: 9781000601794
• Edition: 1
• Topic: Law
• Subtopic: LGBT Studies
• Index: Law

The Queer/Sexual minority which interalia includes lesbian, gay, bisexual, and transgender (hereinafter LGBT) people is not a new phenomenon in today's scenario. LGBT share a particular experience of their own sexual desires, as potentially directed toward a person of the same gender. They have transformed these experiences, desires, and practices into a social identity, a sexual orientation, which serves as a marker of individual selves and of a group.

This study shows that discrimination and abuse from homophobic/transphobic world in which there is full permission to treat LGBT with cruelty makes it difficult for them to maintain a strong sense of well-being and self-esteem. Study reveals that in India LGBT lives are more secretive as they are suppress to come out easily. This book based on study concludes with some strong and viable recommendations, which are requisite to ensure safe and proper place to LGBT people in society, inculcating humane approach into laws and the criminal justice system. Education and awareness programmes through various means and various places can bring positive changes.

Note: T& F does not sell or distribute the Hardback in India, Pakistan, Nepal, Bhutan, Bangladesh and Sri Lanka.

1 Introduction

The Queer/Sexual minority which interalia includes lesbian, gay, bisexual, and transgender (hereinafter LGBT) people is not a new phenomenon in today’s scenario. LGBT share a particular experience of their own sexual desires, as potentially directed toward a person of the same gender.

Gay, Lesbian and Bisexuals, are considered as homosexuals whereas Transgender is used as a broader or umbrella term. In other words it may be described as individuals whose gender role expectations is in conflict with of their biological sex. The sex reassignment is one of the tools for such people, which involve hormones or surgery, to bring their physical characteristics into conformity with their gender identity.

They are known by different name in different culture like “transvestite” or travesti in parts of Latin America, hijra and kothi in India, “transgender” in North America and Westen) Europe. Queers/sexual minorities’ rights are violated based on their real or perceived sexual practices with consenting adults, or their experience or expression of their own gender throughout the world.

The social stigma associated with non-conventional sexual orientation, gender behaviour or cross-gender identity still leads to social isolation for sexual minority. The rigid bi-polar construction of gender existing in many societies oppresses sexual minority. Constant ill-treatment from society and marginalization put together sexual minority as criminal class and socio-legal negligence also plays important role to force them to involve in criminal activity. Society makes allegation on Sexual Minority people of involvement in homosexuality, sex trade, extortion and other illegal practices. This further makes the relationship tense.

In many parts of the world, being member of sexual minority is not seen as a right, but as a wrong. Homosexuality is considered a mental illness, a sin. Whereas most governments either deny practicing human rights violations or portray them as rare aberrations, the repression that LGBT people face is often openly and passionately defended in the name of culture, religion, morality or public health, and facilitated by specific legal provisions.¹

1 Crimes of hate, conspiracy of silence Torture and ill-treatment based on sexual identity, Arrmesty International Publications 2001, ISBN: 0 86210 302 9 www.arrmesty.org, Last visited on 4/5/2011.

In some other countries, AIDS has been labelled a “gay plague”, and homosexuality “the white man’s disease”. Same-sex relations are dubbed “unChristian”, “unAfrican”, “unIslamic” or a “bourgeois decadence”. Some governments seek not only to exclude lesbian and gay people from local culture, but also to deny that they are members of the human race.

The systematic exclusion for sexual minor people from law and society is not contemporary practice but it has been coming from many ancient societies, laws, culture and Justice Systems.

1 HISTORICAL EVIDENCE OF CRIMINALIZATION

Homosexual behaviour between males has been illegal in most countries for several centuries. It was only in recent decades that a number of nations began to legal reforms which permit for certain consensual homosexual acts. History has shown how the language of dehumanization paves the way for atrocities against stigmatized groups in society. Like racism, sexism, ethnicity, gender, religious affiliation, homosexuality is one of the parameter to be used to exclude certain people from citizenship and even from membership of the majority.

History is one of the ways where heterosexuals perpetuate its subordination on homosexuals. Since time immemorial and within all cultures of the world, Homosexuals and transgendered² people have been described recognized, sometimes they criminalized and other times even accommodated within society.

2 From the “mahu” and “aikane” of Polynesia to the “berdache” of Native American tribes; from the “sekhet” of prehistoric Egypt to the “eunouchos” of ancient Greece and Rome; from the “saris” of the Israelites to the “mu’ omin” or trusted men of the Syrians; from the traditional third-gender roles of aboriginal tribes in Africa such as among the Mbo people of Zaire to the palace and harem guards of the Arabs and Chinese; from the cross-dressing entertainers of Manila and Bangkok to the “hijra” and “jogappa” dancers and temple priests of North and South India; right down to our own modern gay and transgendered communities in San Francisco, London and Sydney—persistent and unmistakable “third” or alternative gender subcultures have always naturally existed in one form or another.

Ancient Greece has earliest records of homosexual relationship and transsexual figures. Like in Greece and Phrygia, the Goddess Cybele was worshiped by a cult of people who castrated themselves, and thereafter took female dress and referred to themselves as female.³ These early transsexual figures have also been referred to as early gay role models by several authors.⁴

3 Califia, Patrick (2003) Sex Changes The Politics of Transgenderism, Cleis Press INC., California, ISDN 1-57344-180-5. See also Benjamin, H. (1966). The Transsexual Phenomenon. Julian Press: New York. 4 Evans, Arthur. (1978) Witchraft and Gay counterculture, Boston: Fag Rag Books. See also Conner, R. (1993) Blossom of Bone San Francisco, Harper.

There is stronger proof that classical Greek culture was keenly interested in and developed cultural norms to govern same-sex relationships. To illustrate, exemplars of both companionate and transgenerational same-sex relationships may be found in Plato’s Symposium.⁵

5 Written in the fourth century B.C. Apparently the earliest known systematic treatise on the subject, the Symposium is a dialogue between Socrates and others in “the praise of Love,” with love and relationships between men its primary focus. Plato, Symposium, reprinted in On Homosexuality: Lysis, Phaedrus, and Symposium 103 (Benjamin Jowett trans., with selected retranslation, notes, and introduction by Eugene O’Connor, 1991).

According to the Lex scantinia, a Roman law of 149 BC, homosexuality should be denied between adult males and for male prostitution to protect the youth of noble families. It is probable that such a law was meant to prevent the possibility of an adult noble-born male becoming subject to sodomy by a slave.⁶

6 Sergio Musitelli, Maurizio Bossi, Remigio Allegri, Storia dei costumi sessuali in occidente dalla preistoria ai giorni nostri, Rusconi, Milano 1999, pp. 126-127.

In 342 BC the first law against homosexual marriage was promulgated by the Christian emperors Constantius II and Constans.⁷ Similarly in 390 BC, the Christian emperors Valentinian II, Theodosius I and Arcadius declared homosexual sex to be illegal and those who were guilty of it were condemned to be burned alive in front of the public.⁸

7 Theodosian Code 9.8.3: “When a man marries and is about to offer himself to men in womanly fashion (quum vir nubit in feminam vins porrecturam), what does he wish, when sex has lost all its significance; when the crime is one which it is not profitable to know; when Venus is changed to another form; when love is sought and not found? We order the statutes to arise, the laws to be armed with an avenging sword, that those infamous persons who are now, or who hereafter may be, guilty may be subjected to exquisite punishment. 8 Theodosian Code 9.7.6: All persons who have the shameful custom of condemning a man’s body, acting the part of a woman’s to the sufferance of alien sex (for they appear not to be different from women), shall expiate a crime of this kind in avenging flames in the sight of the people.

During the Late Empire, Christian emperors issued a series of statutes, at first apparently aimed at homosexual prostitutes and passive homosexuals, but eventually encompassing all homosexual acts and even punishing them with the death penalty.⁹ A second anti-homosexual law was issued fifty years later, in 390, under Theodosius, and was addressed to the vicar of the city of Rome.¹⁰

9 James Neill, “The Origins and Role of Same-Sex Relations in Human Societies”, McFarland & Company, Inc., Publishers Jefferson, North Carolina, and London, 2009, ISBN 978-0-7864-3513-5 at page 227. 10 We cannot tolerate the city of Rome, mother of all virtues, being stained any longer by the contamination of male effeminacy, nor can we allow that agrarian strength, which comes down from the founders, to be softly broken by the people, thus heaping shame on the centuries of our founders.... [You] will therefore punish among revenging flames ... all those who have given themselves up to the infamy of condemning their manly body, transformed into a feminine one, to bear practices reserved for the other sex ... carried forth from male brothels ... and that he who basely abandons his own sex cannot aspire to that of another without undergoing the supreme punishment. Cantarella, Eva. Bisexuality in the Ancient World. Translated by Cormac O’Cuilleanain. New Haven: Yale University Press, 1992, page 177.

The late philosopher-historian Michel Foucault suggests that imperial Rome’s anxiety about same-sex relations was related to the institutionalization of companionate marriage, during which period procreation became intertwined with sexual partnership.¹¹

11 Michel Foucault, The History of Sexuality 72-80 (Robert Hurley trans., Pantheon Books 1986) (1984). See also Peter Brown, The Body and Society: Men, Women and Sexual Renunciation in Early Christianity 16 (1988) (describing the emphasis on procreation).

The Justinian Code of 533 A.D. outlawed homosexual intimacy,¹² which violated the Christian ideal of companionate different-sex marriage.¹³ The two laws are contained within the Code of Justinian. The first provision, published in 538, was directed against sinners who the authorities feared would provoke the punishment of God on their cities, that is, those who commit homosexual acts and blasphemers.¹⁴ The second law, of 544, was published only one year after a great plague swept through Constantinople. It restricts its attention to homosexual acts, and, in its language and references to scripture and penitence, bears more resemblance to an Episcopal letter than a legal provision.¹⁵

12 Eva Cantarella, Bisexuality in the Ancient World 61-63 (Cormac O’Cuilleanáin trans., 1992) at 181-86. (describing the procreative nature of sexual pleasure in Plato’s Laws). 13 Eva Cantarella, Id. at 209-10. 14 Indeed, the language of the provisions reads like they could have been written by one of the ascetic church Fathers: since certain men, seized by diabolical incitement, practice among themselves t...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Forword
• Table of Contents
• Preface
• Table of Cases
• 1. Introduction
• 2. Medical Aspects of Sexual Minority (LGBT)
• 3. Rights of Sexual Minority under Human Rights Law vis-á-vis Criminal Justice System
• 4. Sexual Minority, Crimes and Criminal Laws Across the Globe
• 5. Global Overview of Available Literature and Condition of Sexual Minority Thereto
• 6. Sexual Minority, Crimes and Criminal Justice System: A Study based on Empirical Account
• 7. Conclusions and Recommendations
• Annexure-1: Sample Sizes for Each Set of Respondents
• Annexure-2: Questionnaire
• Annexure-3: Global Legal Snapshot
• Annexure-4: RTI Filed and It’s Reply
• Bibliography
• Glossary of Terms
• Index