A sodomy law is a law which makes certain sexual acts into sex crimes, most commonly anal intercourse. Sometimes the definition of sodomy has been broader and included oral sex and zoophilia as well. Following Sir William Blackstone's Commentaries on the Laws of England , the crime of sodomy has often been defined in the past only as the abominable and detestable crime against nature, or some variation of the phrase. This language led to widely varying rulings about what specific acts were encompassed by its prohibition.
While many other parts of the world have, or had, laws against homosexuality or other sexual practices, the term sodomy law has mainly been used when discussing the law of the United States.
Even though many of these laws target both heterosexual and homosexual acts, they are sometimes selectively enforced only against homosexuals; in some states of the US, this practice was codified and the laws prohibited only homosexual acts, not heterosexual ones. In the United States, most sodomy laws were broad enough to apply to female homosexuality, but were more commonly enforced against male homosexuality. It is a common misunderstanding that sodomy laws are laws against homosexuality, when many of them prohibit some heterosexual acts as well.
Overview of homosexuality and the law
Primarily due to religious edicts against homosexuality, homosexuality (and specifically male on male anal sex) have been considered a crime in many cultures, in spite of its status as a consensual act (see consensual crime). In England, Henry VIII introduced the first legislation against homosexuals with the Buggery Act of 1533, making buggery punishable by hanging, a penalty not finally lifted until 1861. Heterosexuals have not historically been prosecuted for anal sex as much as homosexuals and some sodomy laws included all homosexuality or all non-coital sex. see oral sex, frottage, tribadism, masturbation, vanilla sex, sexual intercourse
The Wolfenden report in the UK was a turning point in the legalization of homosexuality in Western countries. Many Western cultures have now legalized or decriminalised homosexuality and homosexual acts, including the USA, whose Supreme Court ruled in June 2003 in the case of Lawrence v. Texas that US state laws criminalizing private, non-commercial sexual activity (including homosexual activity) between consenting adults are unconstitutional. The majority of US states had already repealed such laws decades previous to that decision. A number of states in Europe (for example, the Netherlands and Belgium), and the provinces of Québec, Ontario and British Columbia in Canada, have changed the law to allow same-sex marriages. Other jurisdictions (for example. Germany, Norway, Denmark, Sweden, France, and the US states of Vermont and California) recognize in law long-term gay relationships as "domestic partnerships" or the like. A number of jurisdictions now allow gay couples to adopt children.
An increasing number of politicians have openly admitted either to being homosexual, bisexual or to having had past homosexual experiences. These include a former British Defence Secretary under John Major, Michael Portillo. An openly gay politician and gay rights activist, David Norris, sits in the Irish Senate, while the current and previous Presidents of Ireland, Mary McAleese and Mary Robinson were founders for the Irish Campaign for Homosexual Law Reform, which led to decriminalisation of homosexuality in the Republic of Ireland. In France, the mayor of Paris, Bertrand Delanoë, had already publicly admitted he was gay when he was elected. In the German capital Berlin, Klaus Wowereit, was elected mayor after outing himself as homosexual. Four Canadian MPs are openly gay (two New Democrats, a Bloquiste, and a former Tory, now Liberal.) There have been various US politicians who have served as openly gay, including Congressman Barney Frank of Massachusetts.
This trend among western nations has not been followed in all other regions of the world, where sodomy often remains a serious crime. At the extreme, homosexuality remains punishable by death in Afghanistan, Mauritania, Iran, Nigeria, Pakistan, Saudi Arabia, Sudan, United Arab Emirates, and Yemen. Lesser penalties of life in prison are found in Bangladesh, Bhutan, Guyana, India, Maldives, Nepal, Singapore, and Uganda.
Along with alleged communists, homosexuals were investigated by the notorious senator Joseph McCarthy in the USA, who produced a report entitled "Employment of Homosexuals and Other Sex Perverts in Government".
The United Kingdom has historically had similar laws, but the offence was usually called there buggery, not sodomy, and was usually intepreted as referring to anal intercourse between two males or a male and a female. Buggery was made a felony by statute in 1533, during the reign of Henry VIII. (See Buggery Act.) In 1885, Parliament enacted the so-called Labouchere Amendment , which prohibited "gross indecency" between males, a broad term that was understood to encompass most or all male homosexual acts. It was under this law that Oscar Wilde suffered his well-known conviction and imprisonment. Subsequent to the Wolfenden report, sexual acts between two adult males, with no other people present, were made legal in England and Wales in 1967, and in Scotland and Northern Ireland somewhat later. The passage of the Human Rights Act 1998 has resulted in further broadening of the legality of homosexual acts.
Canadian law now permits anal sex by consenting parties above the age of 18, provided no more than two people are present. Its sodomy laws were repealed in the 1960s by Pierre Trudeau who famously stated that "the government has no place in the bedrooms of the nation." As well, in Ontario, the laws concerning anal sex when one or both of the partners are 14 to 18 years of age has been overturned as being in violation of the Charter of Rights and Freedoms, this doesn't seem to have been tried in court again however.
Australia inherited the United Kingdom's sodomy laws on colonisation in 1788. These were retained in the criminal codes passed by the various colonial parliaments during the 19th century, and by the state parliaments after Federation.
Following the Wolfenden report, the Dunstan government introduced a consenting adults in private type defence in South Australia in 1972, and repealed that state's sodomy law in 1975. The Campaign Against Moral Persecution during the 1970s raised the profile and acceptance of Australia's gay and lesbian communities, and other states and territories repealed their laws between 1976 and 1990. The exception was Tasmania, which retained its laws until the Federal Government and the United Nations Human Rights Committee forced their repeal in 1997. The details are given in Willett (2000).
Since 1997, the states and territories that retained different ages of consent or other vestiges of sodomy laws have tended to repeal them. New South Wales and the Northern Territory did so in 2003. In 2004, Queensland is the only Australian jurisdiction that enforces a sodomy law, with the age of consent for anal sex being 18 as compared to 16.
Sodomy laws have been abolished since the early 1990s in the People's Republic of China. Yet, there is no clear statute towards consenting parties above the age of 18. If person under 18 is involved, a criminal action suit will be applied. In a notable case in 2002, a person who had anal sex with a teenager was sentenced 3 and a half years in prison.
Since the French Revolution, France has not had laws punishing homosexual conduct between over-age consenting adults in private. However, the age of consent for homosexual sex was kept to 21 (legal majority ), above the age for heterosexual sex, until 1981.
In 1960, a parliamentary amendment by Paul Mirguet added homosexuality to a list of "social scourge s", along with alcoholism or prostitution. This prompted the government to increase the penalties for public display of a sex act when the act was homosexual. Transvestites or homosexuals caught cruising were also the target of police repression.
In 1982, under president François Mitterrand, the measures against homosexuality were repealed. Nowadays, the law does not distinguish between heterosexual and homosexual conducts with respect to the age of consent (15), indecence or rape.
Sodomy laws in the United States, laws primarily intended to outlaw gay sex, were a matter of state rather than federal (country-wide) legislation. By the last quarter of the 20th century, 46 out of 50 states had repealed any specifically anti-homosexual-conduct laws, and 36 out of 50 had repealed all sodomy laws. The remainder have most likely been invalidated by the 2003 Supreme Court decision Lawrence v. Texas.
- Graham Willett, Living out Loud: A History of Gay and Lesbian Activism in Australia, 2000. ISBN 1864489499.
- Going Down Down South: Fighting Absurd Sex Laws
- The Accidental Legacy of a Homophobic Humanitarian — The Times, October 2nd, 2000