Out of Step
Review of British Colonialism and the Criminalization of Homosexuality: Queens, Crime and Empire by Han and O’Mahoney (Routledge, 2018)
By Stewart Dorward
“Queens, Crime and Empire” is the more colloquial subtitle of this academic book by Enze Han, an associate professor at the University of Hong Kong, and Joseph O’Mahoney, a lecturer at the University of Reading, U.K. and research fellow at Massachusetts Institute of Technology, U.S.A. In 2017, Routledge commissioned this book as part of their series on Gender and Sexuality Studies, and it expands on their 2014 article of the same name in the Cambridge Review of International Affairs.
This book would be at home on the shelves of a law library with its attention to the phrasing, interpretation, and development of British law criminalizing homosexuality. In addition, it focuses on the impact of those laws on the continuing criminalization or decriminalization of homosexual acts in former British colonies. The book compares and contrasts the effect of these British colonial legal provisions with those of the French and Spanish Empires. These three are the longest lasting and most extensive of the modern empires and so make the best comparison. Although the book is written for an academic audience, it is in fact accessible to more general audience.
Chapter Two lays out the focus of the book: “The main question we are interested in in this book is whether states’ current criminalization of homosexual conduct can be attributed to, or blamed on, the British Empire.” The answer seems to be obviously in the affirmative. In 2018, of the 72 states that still criminalized homosexual acts, 38 were formerly under British colonial rule of some kind. So, if the reader thought that the case was clear-cut, they would not be alone. As Han and O’Mahoney express it, “The claim that colonies 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.” What follows is a nuanced and detailed evaluation of this claim.
Han and O’Mahoney examine the different legal clauses outlawing homosexual acts in Chapter Two. This could be off-putting for a lay person as many legal text books are indecipherable to anyone without a legal education. However, this is not true for this book. The core text is on page 13 and is section 377 of the Indian Penal Code. In some form, it is found throughout the legal codes of the former British Empire:
Unnatural offences
377. 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 of either description for a term which may extend to ten years, and shall be liable to a fine.
Explanation – Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
The Indian Penal code was developed for use by itinerant British magistrates in colonial India. These men were usually young and legally untrained administrators. A small part of their duties involved the hearing of local criminal cases. As such, the code was issued as a simple manual to which they could refer, to help them dispose of the cases as they saw fit. The general wording gave them a broad discretion, which was used very differently in different jurisdictions. For example, Ghana classified homosexual acts without consent, i.e. rape, as a misdemeanor for the victim as well as the perpetrator, adding to the law by criminalizing being a rape victim. In contrast, British judges in Fiji were happy to give a much-reduced sentence if the accused apologized and made the traditional Fijian peace gesture by presenting a whale’s tooth to the offended family. In total, Chapter Two contains twenty-one comparisons between different clauses adopted into the legal codes of different countries. Nevertheless, these clauses are all close variations of the wording of clause 377 in the Indian Penal Code.
However, the effect in all jurisdictions was to set these laws as moral standards in the community. Overtime, they became embedded in the cultural norms of those communities, backed up by occasional, severe official sanction. Other factors that reinforced this cultural change, such as the introduction of Christian teachings by missionaries, are beyond the scope of the book. The book’s authors could have flagged up that omission to the reader so that they could read other sources and gain a fuller picture.
A good example of this non-legal factor would be Uganda, which is one of the few former British colonies to attempt to strengthen the law on the criminalization of homosexual acts since independence. Uganda is over 95% Christian. One of the founding stories of the Ugandan church is the martyrdom of the Christian royal pages in the king’s harem. Having been converted to Christianity and taught that the king’s sexual advances were wrong, the boys rejected the king. In punishment, they were burned alive, and subsequently accepted as martyrs by both the Anglican and Catholic churches. This story is enshrined as the central narrative in the commemoration of Martyrs’ Day on June 3rd, a national holiday, and has been repeatedly emphasized in the current president’s speeches on that day. To focus on the legal aspects of colonialism alone is to get an incomplete view of the forces at work in and molding colonial societies. (1)
In Chapter Three, the authors analyze three hypotheses that they lay out at the start:
1. States with a British legal origin are more likely to have a law criminalizing homosexual conduct.
2. States with a British legal origin have a longer time in between gaining their independence and decriminalizing homosexual conduct.
3. States with a British legal origin take longer to decriminalize after 1945.
The empirical data used to discuss these hypotheses is not complex. It is also presented in a clear and logical manner that makes it easy to understand, for example, on page fifty-three, the time it took for a former colony to decriminalize is given as:
Time to decriminalization after independence
= Year of decriminalization – Year of independence.
This gives a simple number that allows the writers to conclude that the mean time for former French colonies to decriminalize is 29 years. This contrasts with 75 for the British, 94 for the Spanish, and an average of 76 years for other unspecified states. From this example, the reader can see that the impact of the British system lies closer to that of the Spanish compared to that of the French. What stands out is the speed with which the former French colonies acted to decriminalize. This theme is then reinforced by the evidence throughout the book. The authors thus argue that British colonialism was typical with the French being the outlier.
The next two chapters are more accessible in that they comprise case studies of twelve countries: six that have decriminalized after independence and six that have not. These case studies provide some details that try to flesh out the bare legal narratives of the first chapter. As such, they provide a picture of the variety of forces at work in different countries. However, they can only give the reader a thumbnail portrait in the space available, typically two or three pages on each country to cover several hundred years.
Nevertheless, some of the case studies are very revealing. The section on South Africa, in particular, takes the reader some way under the surface of the plain legal story. South Africa is often praised for having one of the most progressive constitutions in the world. It goes beyond decriminalizing homosexual acts as “through the 1996 constitution, South Africa became the first country that explicitly outlawed discrimination on the grounds of sexual orientation.” This legal provision seems to be at odds with a violently homophobic culture that often “frames homosexuality as “unAfrican,” “unGodly,” and “unnatural.” The case study in Chapter Five reconciles this contradiction by explaining that the original decriminalization was a side effect of the repeal of the 1957 Immorality Act that had sought to “keep the white nation sexually and morally pure so that it had the strength to resist the black communist onslaught.” The Act banned sexual contact across racial boundaries but also banned “unnatural and immoral sexual acts,” a euphemism for homosexuality. So, unless the new ANC government was going to take the time to debate and install new sodomy laws, then homosexual acts were decriminalized by default when the 1957 Act was scrapped. The further rights granted seem to have been given in gratitude for the struggle of LGBT activists against apartheid.
As the book comes to a close, the authors have presented a persuasive case that lingering criminalization of homosexual conduct in ex-British colonies cannot be attributed to, or blamed on, the British Empire. Ex-colonies were more likely to have such laws due to the imposition of the colonizer but that finding should be assessed separately from the speed of scrapping such laws. It is seen in ex-French colonies that decriminalization can occur at an accelerated speed.
So a question comes up that goes beyond the remit the authors set for themselves. Why was the French colonial experience different from the others in being so amenable to the decriminalization of homosexual acts? Historically, the French legal code was imposed on its colonies but it was also widely voluntarily adopted by other jurisdictions as they sought to modernize in the 1800s. It is very revealing that two of the six British colonies discussed in the book, that have decriminalized homosexual acts, were largely under French legal influence, not British. The Seychelles was overtly allowed to keep its French legal code when occupied by the British. (2) Cyprus was only under British rule for thirty-one years. Before that, the Ottoman Empire had imposed French law. (3) What was it about the French legal system, law codes, and colonialism that allowed this relative tolerance to express itself? Our authors do not mention this aspect of the history of Seychelles or Cyprus.
The choice of the year 1945 by which to measure the speed of decriminalization is also problematic. Decriminalization in Britain itself took place only in 1967. Former colonies looked, and still look, to Britain for legal precedents. The book’s authors do not take into account this neo-colonial effect. It is ironic that these days the British Foreign Office holds up progress in LGBTQ+ rights as a point of national pride and an example for Commonwealth emulation. A shinier example is France, which scrapped all the previous morality laws of the Ancien Régime as early as 1791. From that date, the whole of the Anglo-sphere looked out of step with the more progressive French standards.
The strength and weakness of this book come from the same source. Its strength is that its focus on the law is clear and narrow, which makes it possible to examine a small amount of material carefully. Its weakness springs from the same narrow focus. The legal focus of the book, however, does not prevent a comparison of the wider British and French colonial laws governing public morality. Practicing lawyers and legal scholars are prone to concern themselves only with legal sources and materials that can be quoted in court. However, this book is for a series on Gender and Sexuality Studies and, as such, misses the opportunity to give a more nuanced understanding of the impact of colonialism.
Notes
1. Van Klinken and Chitango, ‘Public Religion and the Politics of Homosexuality in Africa’, Routledge, 2016, p201
2. https://sites.google.com/site/barassociationsc/law-journal-1/theinfluenceofthefrenchjudicialmodelontheseychelles
3. http://dergiler.ankara.edu.tr/dergiler/19/835/10563.pdf
Stewart is a retired educator living in Japan with his husband. In the U.K., he was a lecturer in Constitutional Law and the English Legal System through the Universities of Staffordshire and Wolverhampton. He now runs an Airbnb in the mountains north of Tokyo.
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