The Sodomy Offence: England’s Least Lovely Legal Export?

THE PAST

It all goes back to the Bible. In the Book of Leviticus, the Old Testament contains the following declaration:

“If a man … lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death; their blood shall be upon you”.

This is one of a series of stern commandments. A man who lies with his daughter-in-law shall be put to death, as must his victim, seemingly however innocent she might be. The penalty is stepped up for a man who takes a wife and her mother. They are to be “burnt with fire” so that “there be no wickedness among you”. A man that lies with a beast is to be put to death. As well as the poor animal. There is a similar offence of a woman connecting with a beast. These punishments and offences portray an early, primitive, patriarchal society where the powerful force of sexuality was seen as a danger to be held in the closest possible check.

According to those who have studied these things, the early history of England incorporated into its common law an offence of ‘sodomy’, in the context of providing protection against those who endangered Judeo-Christian principles. The Church had its own courts to try and to punish ecclesiastical offences, those that defiled the kingdom and disturbed the racial or religious order of things.

A survey of the English laws, written in Latin in 1290, during the reign of Edward I, mentions “sodomy”, involving sexual intercourse. It was so described because the crime was attributed to the men of Sodom who thereby attracted the wrath of the Lord and the destruction of their city. Sodomy was perceived as an offence against God’s will, which thereby attracted society’s sternest punishments. The offence was reinforced by a biblical instruction that associated the sexual act with shame and excused it only as it fulfilled the procreative function.

Sodomy was perceived as an offence against God’s will, which thereby attracted society’s sternest punishments. The offence was reinforced by a biblical instruction that associated the sexual act with shame and excused it only as it fulfilled the procreative function.

In the 16th century, following Henry VIII’s separation of the English church from Rome, the common law crimes were revised so as to provide for their trial in the King’s courts. A statute of 1533, provided for the crime of sodomy, under the description of the “detestable and abominable Vice of Buggery committed with mankind or beast”. The offence was punishable by death. Although that statute was repealed in the brief reign of Mary I, it was re-enacted by parliament in 1563, in the reign of Elizabeth I. The statutory offence, so expressed, survived in England until 1861. The last recorded execution for ‘buggery’ in England took place in 1836.

The great text writers of the English law, exceptionally, denounced sodomy and all its variations in the strongest language. When William Blackstone, between 1765–9, wrote his Commentaries on the Laws of England, he too included the “abominable crime” amongst the precious legacy that English law, bequeathed to its jurisdictions. Everywhere the British took their Empire, language, and trade, they brought with them the crimes against the “order of nature”. Astonishingly, these crimes remain in force in many countries of the Old Empire to this day. The offences spread like a pestilence. They have proved difficult to eradicate.

In France, Napoleon’s codifiers undertook a complete revision and re-expression of the penal law. This was an enterprise which Napoleon, correctly, predicted would long outlive his imperial battle honours. In the result, the sodomy offence, which had previously existed in France and had been repealed in 1791, was removed from the French Penal Code of 1810. This repeal proved profoundly influential and quickly spread to more countries even than Britain ruled. It did so through derivative codes adopted, following conquest for example, in the Netherlands, Belgium, Spain, Portugal, Scandinavia, Germany, Russia, China, Japan and their respective colonies and dependencies.

Everywhere the British took their Empire, language, and trade, they brought with them the crimes against the “order of nature”. Astonishingly, these crimes remain in force in many countries of the Old Empire to this day.

Just as the Napoleonic codifiers brought change, and the termination of the prohibition on consensual same-sex activities in France and its Empire, so in England a movement for codification of the criminal law, gained momentum in the early 19th century. A great proponent of this movement was Jeremy Bentham. He strongly criticised Blackstone for his complacency about the contents of the criminal law of England. He demanded reform of the law’s treatment of what later became named as homosexual acts. However, reform was opposed by the judges. In the result, no relevant reforms were enacted in England.

Encouraged by contemporary moves for criminal legal reform in France, Bentham urged a reconsideration of only those forms of conduct which should, on utilitarian principles, be regarded as punishable offences under the laws of England. He continued to urge the acceptance of the utilitarian conception of punishment as a necessary evil, justified only if it was likely to prevent, at the least cost in human suffering, greater evils demonstrably arising from putative offences. Somewhat cautiously, he also turned his attention to the law’s treatment of what later became named as homosexuality. He favoured de-criminalisation.

What could not be achieved in England, in the form of a penal code, became an idea and a model that could much more readily be exported to, and imposed on, the British colonies, provinces and settlements overseas. So, this is what happened. There were five principal criminal codes on offer. They all included various reforms. However, the homosexual offences were common to them all. They were exported to all countries of the British Empire – including to all of the colonies in faraway Australia, Canada, South Africa and Singapore.

Ruling the world’s largest Empire was a very demanding responsibility. The rules could never appear weak. They exuded a very masculine air of dominance. Same-sex activity was considered morally unacceptable to the British rulers and their societies. The local populations were not consulted in respect of the imposition of such laws. At the time, the settlers, if they ever thought about it, would probably have shared many of the prejudices and attitudes of the rulers. But in many of territories in Asia, Africa and elsewhere, where English law was imposed and enforced, there was no (or no clear) pre-existing culture that required such grim punishments for all such offences. They were simply imposed to stamp out the ‘vice’ and ‘viciousness’ feared to be present in the conduct of native peoples which the British rulers found, or assumed, to be intolerable in a properly governed society.

The most copied of the colonial criminal codes was the Indian Penal Code (IPC) of Thomas Babington Macaulay. The relevant provision appeared in Ch XVI, titled Of Offences Affecting the Human Body. Within this chapter, section 377 appeared under the subtitle Of Unnatural Offences. Originally, it provided for the death penalty. But at the time of India’s independence in 1947 it declared:

“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 of either description for a term which may extend to 10 years and shall also be liable to fine.

Explanation – Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

This provision of the IPC was copied in a large number of British territories from Zambia to Malaysia, and from Singapore to Fiji. The acts specified were punishable, irrespective of consent or resistance, because more than the individual’s will or body was at stake. Legally, same-sex activities were linked and equated to the conduct of violent sexual criminal offences, such as we treat paedophilia today.

I can recall clearly a day in my first year of instruction in criminal law at the Law School of the University of Sydney when I was introduced to this branch of the law, as it applied in New South Wales. In the last year of the reign of Queen Victoria, the colonial parliament of New South Wales, enacted the Crimes Act 1900 (NSW). It is still in force although parts have been amended. Part III of that Act provided for the definition of ‘Offences against the Person’. A sub-division of those offences was headed Unnatural Offences. The first of these provided in section 79:

“79. Buggery and Bestiality: Whosoever commits the abominable crime of buggery, or bestiality, with mankind, or with any animal, shall be liable to penal servitude for 14 years.”

The acts specified were punishable, irrespective of consent or resistance, because more than the individual’s will or body was at stake. Legally, same-sex activities were linked and equated to the conduct of violent sexual criminal offences.

As I listened to the law lecturer explaining the peculiarities of the unnatural offences, including the fact that, in law, full age and consent were no defence and both parties were equally guilty; the availability of propensity evidence to prove the particular offence charged and evidence of similar facts; and the heavy penalties imposed upon conviction; I knew that these provisions were targeted directly and specifically at me as a gay man. I could never thereafter share an unqualified belief that the inherited criminal law of Australia was flawless. A growing body of public opinion in Australia and elsewhere came to see the need for modernisation and reform. However, it was to take the period between 1974 (in South Australia) and 1997 (in Tasmania) to secure the abolition of all the laws in Australia that punished gay people for following the desires of their nature. However, the criminal laws, introduced into so many jurisdictions by the British Imperial authorities, remained in force in virtually all of them long after the Union Jack was hauled down and the Britannic viceroys departed, one by one, from their Imperial domains.

In the middle of the 20th century, as the centenary of the formulation of the IPC approached, moves began to emerge for the repeal of the same-sex criminal offences, commencing in England itself. Reform gradually followed in all of the settler dominions. And later in many other jurisdictions.

THE REFORMS

The forces that gave rise to the movement for reform were many. They included the growing body of scientific research into the variable features of human sexuality. This research was undertaken by several scholars, including Richard Krafft-Ebing (1840–1902) in Germany; Henry Havelock Ellis (1859–1939) in Britain; Sigmund Freud (1856–1939) in Austria; and Alfred Kinsey (1894–1956) in the United States. The last, in particular, secured enormous public attention because of his unique sampling techniques and the widespread media coverage of his successive reports on variation in sexual conduct on the part of human males and females.

The emerging global media and the sensational nature of Kinsey’s revelations ensured that they would become known to informed people everywhere. Even if the sampling was partly flawed, it demonstrated powerfully that the assumption that same-sex erotic attraction and activity was confined to a tiny proportion of wilful anti-social people was false. Moreover, experimentation, including acts described in the criminal laws as ‘sodomy’ and ‘buggery’, treated by law as amongst the gravest crimes, were relatively commonplace both amongst same-sex and different-sex participants. If such acts were so common, the questions posed more than a century earlier by Bentham and Mill were starkly revived. What social purpose was secured in exposing such conduct to the risk of severe criminal prosecution and, upon proof, punishment? Particularly where the offences applied irrespective of consent, age and circumstance and the punishments were so severe?

A number of highly publicised cases in Britain, where the prosecution of a number of aristocratic ‘offenders’ appeared harsh and unreasoning, set in train a growing public debate about reform. Eventually, committees were formed throughout the United Kingdom to support parliamentary reform. A royal commission of enquiry was established in 1956, chaired by Sir John Wolfenden, a university Vice Chancellor. The Commission’s report recommended substantial modification and confinement of homosexual offences, deleting adult, consensual, private conduct. The Wolfenden Committee expressed the principle that they embraced in terms that would have gladdened the heart of Jeremy Bentham:

“Unless a deliberate attempt is made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business”.

The prosecution of a number of aristocratic ‘offenders’ appeared harsh and unreasoning, set in train a growing public debate about reform

Ultimately, private members’ Bills were introduced into the House of Commons and the House of Lords, by lending proponents of reform, neither of whom identified as homosexual. Within a decade of the Wolfenden Report, the United Kingdom parliament changed the law for England and Wales. At first, the age of consent was fixed at 21 years and there were a number of exceptions (relating to the Armed Forces and multiple parties). Reforming laws were soon also enacted for Scotland and Northern Ireland. The last mentioned reform was achieved only after a decision of the European Court of Human Rights held that the United Kingdom was in breach of its obligations under the European Convention on Human Rights by continuing to criminalise the adult, private, consenting sexual conduct of homosexuals in that province.

Within a remarkably short time, the influence of the legislative reforms in the United Kingdom resulted in the legislative modification of the same-sex prohibition in the penal laws of Canada, New Zealand (1986), South Australia (1974), Hong Kong (1990) by legislation and in Fiji (2005 by a High Court decision). Likewise, a decision of the Constitutional Court of South Africa in 1998 struck down the same-sex offences in that country as incompatible with the terms and values of the post-Apartheid Constitution. In that decision, Ackermann J said:

“The way in which we give expression to our sexuality is the core of this area of private intimacy. If, in expressing our sexuality, we act consensually and without harming one another, invasion of that precinct will be a breach of our privacy.”

To the same effect, the Supreme Court of the United States of America (another country which, with few exceptions, had inherited its state criminal laws from the British template), eventually, by majority, held that an offence, enacted by the State of Texas, as expressed, was incompatible with the privacy requirements inherent in the United States Constitution. Kennedy J, writing for the Court, declared:

“… [A]dults may choose to enter upon this relationship in the confines of their homes and their own private lives… The liberty protected by the Constitution allows homosexual persons the right to make this choice. … When homosexual conduct is made criminal by the law of the state, that declaration, in and of itself, is an invitation to subject homosexual persons to discrimination both in the public and the private spheres.”

In Australia, the journey to reform was slow and difficult. It began with removal of the law in the Australian Capital Territory, a federal responsibility (1975). One by one, the States of Australia, by parliamentary action, amended their respective criminal laws to remove the ‘unnatural offences’. Amongst the last to make the change were Western Australia (1989) and Queensland (1990). In each of those States, the distaste at having to repeal the templates of the Criminal Codes then applicable, was given voice in parliamentary preambles which expressed the legislature’s discomfiture.

In Queensland, where the legislators were called upon to repeal the material provision from Griffith Code, a preamble was enacted that was distinctly condescending:

“Whereas Parliament neither condones nor condemns the behaviour which is the subject to this legislation … [but] reaffirms its determination to enforce its laws prohibiting sexual interference with children and intellectually impaired persons and non-consenting adults.”

Only one Australian jurisdiction held out, in the end, against repeal and amendment, Tasmania. In that State, a variant of the Griffith Code continued to apply. Endeavours to rely on arguments, including the dangers of HIV/AIDS, to attain reform, failed to gain traction. Eventually, immediately after Australia subscribed to the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), a communication was submitted to the United Nations Human Rights Committee in Geneva. This argued that, by criminalising private same-sex conduct between consenting adults in private, the law of Tasmania brought Australia, in that jurisdiction, into breach of its obligations under the ICCPR.

In March 1994, the Human Rights Committee of the United Nations in Toonen v Australia upheld the complaint and found Australia in breach. The majority of the Committee did so on the basis of a breach of Article 17 of the ICCPR (privacy). A minority report suggested that there were other breaches in relation to discrimination on the “grounds of sex”, thereby anticipating by 26 years the 2020 US Supreme Court decision in Bostock v Clayton County.

Reliant upon the Human Rights Committee’s determination, the Australian Federal Parliament enacted a law to override the Tasmanian same-sex criminalisation, asserting this action under the external affairs power in the Australian Constitution. The validity of the law so enacted was then challenged by Tasmania in the High Court of Australia. That court, in Croome v Tasmania, dismissed an objection to the standing of one of the successful complainants to Geneva, in seeking relief against the Tasmania challenge.

By this stage I had been appointed from the New South Wales Court of Appeal to the High Court of Australia. I recused myself from participating in the case, illustrating the relatively strict view in Australia on judicial recusal. It is a view that contrasts with that taken recently by some Justices of the Supreme Court of the United States. With the High Court’s decision, the Tasmanian parliament surrendered. It repealed the anti-sodomy offence of that State. It was not therefore necessary for the High Court to rule on the constitutional validity of the federal law. In all Australian jurisdictions, the old British legacy had been removed by legislation and the democratic process. But it had taken 20 years.

For a long time, no further significant moves were made in non-settler countries of the Commonwealth of Nations to follow the lead of the legislatures in the old dominions and in the courts of Fiji. On the contrary, when in 2004 a challenge was brought to the Supreme Court of Zimbabwe in Banana v The State, seeking to persuade that court to follow the privacy and equality reasoning of the South African Constitutional Court, the endeavour, by majority, failed, Chief Justice Gubbay dissenting.

Another setback was initially suffered in Singapore, which, like Hong Kong, was a small common law jurisdiction with a prosperous Chinese community unencumbered by majority cultural norms of Judeo-Christian origin, except as imposed on them by their now departed British colonial rulers. In Hong Kong, the then territory’s law reform commission supported the Wolfenden principles and recommended their introduction in that colony. The change was effected in 1990, after vigorous advocacy by the local homosexual community and its friends. However, the course of reform in Singapore was less favourable.

In 2006, the Law Society of Singapore delivered a report proposing repeal of s377A of the Singapore Penal Code. However, a fiery debate ensued in the Singapore parliament. Members supported the retention of the colonial provision on the basis that it contributed to “social cohesiveness”. Christian churches and religious members of parliament opposed reform. The reform bill was rejected, although the Prime Minister made it clear that the laws “would not generally be enforced”, so long as victims preserved a low profile and observed the requirements of ‘don’t ask don’t tell’. Repeated challenges before the Singapore Court of Appeal were of no avail.

THE FUTURE

The last decade, throughout the world (but mainly in Commonwealth countries) has seen progress in fits and starts to abolish the inherited criminal laws against LGBTIQ+ people. Undoubtedly, the most important move came in India. It began in 2009 when the Delhi High Court found that the provisions of section 377 of the IPC, in so far as they purported to criminalise adult consensual sexual conduct in private, were invalid under the Indian Constitution. The judges found that the provisions violated the constitutional guarantees of equality and privacy. The decision was immediately appealed to the Supreme Court of India. Initially, that court upheld the appeal. It set aside the declaration of invalidity. That outcome was a great shock in India and beyond. However, in its turn, it was challenged in further proceedings in the Supreme Court.

The last decade, throughout the world (but mainly in Commonwealth countries) has seen progress in fits and starts to abolish the inherited criminal laws against LGBTIQ+ people.

In September 2018, that court unanimously restored the declaration of invalidity issued by the Delhi High Court. It did so basically on the same constitutional principles. Misra CJ declared that, under the Indian Constitution, everyone had the right to live with dignity. This entitlement was upheld by international human rights law, as by the Constitution of India. The right to enter into private sexual adult relationships had to be secured against undue intrusion by the state. The importance of the Indian decision rested not only on the protection of the rights of sexual minorities in India. Many criminal codes in other countries followed the Indian provision. The constitutional requirements invoked in India had parallels in many newly independent states.

A momentum was therefore built up following the line of authority in India. In Belize the Court of Appeal, headed by Benjamin CJ, found that the relevant provisions of the criminal code were unconstitutional and inapplicable to the consenting sexual conduct of adults in private.

Favourable court decisions followed also in Seychelles, Botswana, and on the subject of equal marriage rights, in Taiwan. On the other hand, a number of test cases challenging criminal offences on constitutional grounds, failed. This occurred in Uganda; Kenya; Singapore; and in Zambia (although in some of these cases appeals were brought and are pending).

Marriage equality litigation has also enjoyed mixed success. In the United States, the Supreme Court (by majority) upheld the constitutional right to equal marriage. However, an attempt in Australia to secure judicial intervention to permit marriage equality, failed. That decision was later reversed after a voluntary survey on marriage equality resulted in a large majority in favour of marriage equality, leading to amendment to the Marriage Act by the Australian parliament. What began as a truly exceptional legislative measure in the Netherlands in 2000, expanded to the current widespread adoption of marriage equality, either by legislation or judicial decisions. Today equal rights to marriage for LGBTIQ+ couples are enshrined in law in more than 30 countries.

A similar indication of changing attitudes can be seen in the successive votes in favour of the continuance of the office of the United Nations Independent Expert on Sexual Orientation and Gender Identity. Despite vigorous opposition to the retention of the office, mainly from African and Arab states, the successive votes in the Human Rights Council and the General Assembly of the United Nations have been increasingly in favour of the retention of the office.

By the same token, hostility towards LGBTIQ+ status remains strong in Africa, the Caribbean and in parts of Asia. A particularly disappointing development has been the shift in attitudes and law of Indonesia, formerly regarded as tolerant on this issue. The repeated refusal of the courts in Singapore to interpret constitutional norms broadly demonstrated for many years the frustrating failure of ‘democracy’ in that city state to provide respect for a minority, despite other features of modernism and communitarianism. Eventually, in 2022, the Singapore parliament enacted reform; but not without adapting a parallel measure, amending the Singapore Constitution to prohibit same-sex marriage.

Civil society organisations and some initiatives of the Commonwealth; the United Nations and academic leadership, continue to struggle in support of full legal equality for all LGBTIQ+ people. Every month or so a legislative or judicial breakthrough is celebrated. However, this is then counterbalanced by defeat in another legislature or in an appellate court. Sadly, the Judicial Committee of the Privy Council, on appeal from several Commonwealth states in the Caribbean, has not covered itself with judicial glory. In this, it is to be contrasted with the Caribbean Court of Justice in similar cases. Once again Uganda, in 2023, has won the prize for most hostile state in the Commonwealth, if not the world. The Anti-Homosexuality Act 2023 (Ug) has even reintroduced the death penalty as a punishment for defined cases of ‘aggravated’ homosexuality. Yet the most absurd law introduced in 2023 was in Malaysia, another Commonwealth country. This declared that sale and possession of colourful ‘Pride’ swatches would attract criminal punishment because offensive to Islamic religious principles.

The journey of human rights and justice is a long and tortuous one. It is accompanied by tears and disappointments. However, if LGBTIQ+ minorities have proved anything about themselves over the past 50 years it must be their resilience, determination and commitment to equality where that matters. Many achievements in the law have been noted. More remain to be secured. The law which was, for centuries, an oppressor of sexual minorities, is now increasingly seen as a protector and guardian. Still, the road ahead is long, and fear, shame and violence remain prevalent. This is worst of all in Commonwealth countries that derive their criminal laws from Britain.

This is itself somewhat surprising because the Commonwealth Heads of Government Meeting (CHOGM) in 2013 adopted a Commonwealth Charter to express the values and aspirations of all Commonwealth member states. This step followed a report to CHOGM recommending this step, proposed by an Eminent Persons Group (EPG), tabled at CHOGM in Perth, Western Australia, in 2011. The writer was a member of the EPG. Its text, signed by the Late Queen Elizabeth II at Marlborough House in 2013, was designed to express core values to replace allegiance to the British monarch which had earlier been the legal adhesive that bound the British Empire and its Commonwealth together. The Commonwealth Charter declares, in unequivocal language, that “we are implacably opposed to discrimination of any kind.”

Yet discrimination persists, both in practice and in law. The influence of the old British laws on sodomy remains in force in almost 30 Commonwealth countries. Fifty years on from independence and self-government, this persistence cannot now be blamed on Britain. On slavery, after a shaky start, the British Empire became a global leader of reform. On sodomy and consequent injustices, countries of the Commonwealth of Nations have continued to resist reform. The struggle for equality and justice is not over. This is an unfinished story.

For the lecture video recording: innertemple.org.uk/sodomylaw

The Hon Justice Michael Kirby AC CMG

Honorary Master of the Bench