MORE THAN half of the world’s remaining sodomy laws—laws that criminalize consensual homosexual conduct—are relics of British colonial rule. This is the conclusion of a major study by Human Rights Watch released late last year in a 66-page report titled “This Alien Legacy: The Origins of ‘Sodomy’ Laws in British Colonialism.” The report describes how laws in over three dozen countries, from India to Uganda and from Nigeria to Papua New Guinea, derive from a single law on homosexual conduct that British colonial rulers imposed on India in 1860.
On December 18, 2008, the United Nations General Assembly heard a statement signed by over sixty countries affirming that human rights protections include sexual orientation and gender identity. Some national leaders have defended sodomy laws as a reflection of indigenous cultures. However, the HRW report showed that British colonial rulers brought in these laws because they saw the conquered cultures as morally lax. The British also wanted to defend their own colonists against the “corrupting” effect of the colonies. One British viceroy of India warned that British soldiers could succumb to “replicas of Sodom and Gomorrah” as they acquired the “special Oriental vices.”
To head off these threats, the British drafted a new model Indian Penal Code, finally put into force in 1860. Section 377 punished “carnal intercourse against the order of nature” with up to life imprisonment. Versions of Section 377 spread across the British Empire from Africa to Southeast Asia. In this way, British colonists imposed a single sexual code—that of Victorian England—upon all their colonized peoples. As these laws changed over time, they tended to shift their focus from particular acts to whole classes of people. For example, the British listed “eunuchs”—their term for India’s hijras, or transgender people—as a “criminal tribe” because they were prone to “sodomy.” Simply for appearing in public, hijras could be arrested and jailed for up to two years.
Today, international human rights standards have compelled former colonial powers to acknowledge that these laws are wrong. England and Wales decriminalized homosexual conduct in 1967. The European Court of Human Rights found in 1981 that a surviving sodomy law in Northern Ireland violated fundamental rights protections. In 1994, the UN Human Rights Committee—which interprets the International Covenant on Civil and Political Rights (ICCPR)—held that sodomy laws violate the rights to privacy and to non-discrimination.
Nonetheless, the laws persist in many of Britain’s old colonial possessions. Moreover, the model British-era sodomy law made no distinction between consensual and non-consensual sex, or between sex between adults and sex with minors. As a result, these surviving laws leave many rape victims and victims of child abuse without effective legal protection. Worse, many governments, such as those of Malaysia and Uganda, use these laws to harass civil society, restrict free expression, discredit enemies, and destroy lives. And yet another ill effect of sodomy laws: they contribute to the spread of HIV by criminalizing outreach to affected groups.
Following are the colonies and countries that retain versions of this British sodomy law. In Asia and the Pacific: Bangladesh, Bhutan, Brunei, India, Kiribati, Malaysia, Maldives, Marshall Islands, Myanmar (Burma), Nauru, Pakistan, Papua New Guinea, Singapore, Solomon Islands, Sri Lanka, Tonga, Tuvalu, and Western Samoa. In Africa: Botswana, Gambia, Ghana, Kenya, Lesotho, Malawi, Mauritius, Nigeria, Seychelles, Sierra Leone, Somalia, Swaziland, Sudan, Tanzania, Uganda, Zambia, and Zimbabwe.
A few governments that inherited the British law have abolished it: Australia, Fiji, Hong Kong, and New Zealand. In 2008, the High Court in Delhi ended hearings in a years-long case whose plaintiffs are seeking to decriminalize homosexual conduct there. A ruling in the landmark case is expected soon.
Human Rights Watch urges governments everywhere to affirm international human rights standards and reject the oppressive legacy of colonialism by repealing laws that criminalize consensual sexual activity between adults of the same sex. Getting rid of these unjust remnants of the British Empire is a reform that’s long overdue.
Scott Long is director of the Lesbian, Gay, Bisexual, and Transgender Rights Program of Human Rights Watch.