Homosexuality and Crime

At the turn of the twenty-first century, criminal penalties for homosexual acts remained part of legal codes primarily in three sets of countries: (1) post-colonial governments of south Asia, Africa, and the Caribbean (many still preserving British laws now abandoned by the United Kingdom itself); (2) mainly southern and Rocky Mountain states of the United States; and (3) Islamic governments of the Arab world and Asia (International Lesbian and Gay Association). Executions of homosexual men were reported in the 1990s in the radical, theocratic states of Iran and Afghanistan, as well as in Saudi Arabia. With the fall of the Soviet Union, most of the newly independent states, including Russia, moved rapidly to decriminalize, but some Caucasus and Islamic republics still retain the Stalinist legal code. There are exceptional instances of the recriminalization of homosexuality in recent times as in Puerto Rico and Nicaragua. Recriminalization came about in Nicaragua when church and landowning elites reasserted themselves in government, with U.S. backing, against the former Sandinista revolutionary government.

Criminal law is, of course, not a reliable guide to actual practice. Applied to consenting, sexual behavior, it is necessarily arbitrary and uneven. Enforcement typically relies on vindictive neighbors, police intrusion, or periodic campaigns of persecution dependent on the motivations of political elites and moral entrepreneurs. Because it is a charge that is virtually impossible to disprove, sodomy law has long proven to be a convenient political weapon in the absence of legitimate wrongdoing. Sodomy was a convenient tool for seizing control of the commercial empire of the former Crusaders, the Knights Templar, in the fourteenth century when French and Spanish monarchs grew covetous of their influence. The Nazi regime also used it to discredit and arrest political enemies. In 1998, it proved useful to the Malaysian Prime Minister Mahathir Mohamad, who successfully imprisoned his political rival, finance minister Anwar Ibrahim, on charges of sodomy.

Vibrant gay and lesbian communities flourish in some jurisdictions where sodomy law continues, but is largely a "dead letter," even in places where homosexual people struggle against active discrimination practiced by state and social institutions, including the police and the courts. In other countries, where homosexual "offenses" are off the law books, a range of other discriminatory legislation nevertheless imposes disabilities on the freedom of citizens to love and live with the persons of their choice. Various kinds of sweeping laws regulating "public scandal" and "indecent acts" provide police with broad powers that lead to harassment and intimidation, often directed against gay men, most notably in Latin America and Romania. In the United States and Canada, police and gay communities contest the boundaries between "public" and "private" as men suffer arrest from time to time for sexual speech or conduct typically under the cover of darkness in parks or in bathhouses. Lack of criminal penalty may be no guarantee of freedom of association or freedom of expression. Attempts to form gay and lesbian associations, or simply to gather together on a social basis, may be subject to repression. In many places, the organization of gay and lesbian film festivals or the founding of a gay press have resulted in police action, or in official acquiescence to attacks incited by church officials, criminal gangs, and death squads. Violence against lesbians and gay men continues to flourish in places where police turn a blind eye toward perpetrators, and where courts excuse them when they claim to be reacting against a sexual advance. A number of jurisdictions impose a higher age of consent for homosexual than for heterosexual activity, a remnant of the theory that homosexuality is in need of special, surplus regulation in comparison to heterosexuality.