Английская Википедия:Criminalization of homosexuality
Шаблон:Pp Шаблон:Short description Шаблон:Use American English Шаблон:Good article
Some or all sexual acts between men, and less frequently between women, have been classified as a criminal offense in various regions. Most of the time, such laws are unenforced with regard to consensual same-sex conduct, but they nevertheless contribute to police harassment, stigmatization, and violence against homosexual and bisexual people. Other effects include exacerbation of the HIV epidemic due to the criminalization of men who have sex with men, discouraging them from seeking preventative care or treatment for HIV infection.
The criminalization of homosexuality is often justified by the scientifically discredited idea that homosexuality can be acquired or by public revulsion towards homosexuality, in many cases founded on the condemnation of homosexuality by the Abrahamic religions (Judaism, Christianity, and Islam). Arguments against the criminalization of homosexuality began to be expressed during the Enlightenment. Initial objections included the practical difficulty of enforcement, excessive state intrusion into private life, and the belief that criminalization was not an effective way of reducing the incidence of homosexuality. Later objections included the argument that homosexuality should be considered a disease rather than a crime, that criminalization violates the human rights of homosexuals, and that homosexuality is not morally wrong.
In many countries, criminalization of homosexuality is based on legal codes inherited from the British Empire. The French colonial empire did not lead to criminalization of homosexuality, as this was abolished in France during the French Revolution in order to remove religious influence from the criminal law. In other countries, the criminalization of homosexuality is based on sharia law. In the Western world, a major wave of decriminalization started after World War II. It diffused globally and peaked in the 1990s. In recent years, many African countries have increased enforcement of anti-homosexual laws due to politicization and a mistaken belief that homosexuality is a Western import. Шаблон:As of, homosexuality is criminalized de jure in 61 UN member states and de facto in two others; at least seven of these have a death penalty for homosexuality. Шаблон:TOC limit
History
Ancient through early modern world
The Assyrian Laws contain a passage punishing homosexual relations, but it is disputed if this refers to consensual relations or only non-consensual ones.Шаблон:Sfn The first known Roman law to mention same-sex relations was the Lex Scantinia. Although the actual text of this law is lost, it likely prohibited free Roman citizens from taking the passive role in same-sex acts. The Christianization of the Roman Empire made social attitudes increasingly disapproving of homosexuality. In the sixth century, Byzantine emperor Justinian introduced other laws against same-sex sexuality, referring to such acts as "contrary to nature".Шаблон:Sfn The Syro-Roman law book, which was influential in the Middle Eastern legal tradition and especially in Lebanon, prescribed the death penalty for homosexuality.Шаблон:Sfn Some Ottoman criminal codes called for fines for sodomy (liwat), but others did not mention the offense.Шаблон:Sfn In 15th-century central Mexico, homosexual acts between men could be punished by disembowelment and smothering in hot ashes.Шаблон:Sfn
During the late Middle Ages, many jurisdictions in Europe began to add prohibitions of sodomy to secular law. They also toughened enforcement, with vice squads appearing in some European cities.Шаблон:Sfn In some cases, sodomy was punished by investigation and denunciation, in others by fines, and in some cases by the burning of the participants or the location where the act had taken place. The death penalty for sodomy was common in early modern Europe.Шаблон:SfnШаблон:Sfn It is unclear how strictly sodomy laws were enforced; one theory is that enforcement was related to moral panics in which homosexuals were a scapegoat.Шаблон:Sfn English monarch Henry VIII codified the prohibition of homosexuality in England into secular law with the Buggery Act 1533,Шаблон:Sfn an attempt to gain the high ground in the religious struggle of the English Reformation. This law, based on the religious prohibition in Leviticus, prescribed the death penalty for buggery (anal sex).Шаблон:SfnШаблон:Sfn
Impact of colonialism and imperialism
Many present-day jurisdictions criminalize homosexuality based on colonial criminal codes they adopted under British rule.Шаблон:Sfn The Indian Penal Code and its Section 377 criminalizing homosexuality were applied to several British colonies in Asia, Africa, and Oceania.Шаблон:SfnШаблон:Sfn The Wright Penal Code was drafted for Jamaica and ultimately adopted in Honduras, Tobago, St. Lucia, and the Gold Coast.Шаблон:SfnШаблон:Sfn The Stephen Code was adopted in Canada (and in a modified form in New Zealand), expanding the criminalization of homosexuality to cover any same-sex activity.Шаблон:SfnШаблон:Sfn The Griffith Code was adopted in Australia and several other Commonwealth countries including Nauru, Nigeria, Kenya, Tanzania, Papua New Guinea, Zanzibar and Uganda, and in Israel.Шаблон:SfnШаблон:Sfn Once established, laws against homosexuality are often maintained by inertia and inclusion in postcolonial criminal codes.Шаблон:Sfn Some states adopted British-inspired laws criminalizing homosexuality on the basis of informal influence,Шаблон:Sfn while other former British colonies criminalize homosexuality under the influence of sharia law.Шаблон:Sfn Both China and Japan, which had not historically prosecuted homosexuality,Шаблон:Sfn criminalized it based on Western models in the nineteenth century.Шаблон:Sfn
During the French Revolution in 1791, the National Constituent Assembly abolished the law against homosexuality as part of its adoption of a new legal code without the influence of Christianity. Although the assembly never discussed homosexuality, it has been legal in France since then.Шаблон:SfnШаблон:Sfn Previously it could be punished by burning to death, although this was infrequently enforced.Шаблон:SfnШаблон:Sfn The abolition of criminality for sodomy was codified in the 1810 penal code.Шаблон:Sfn Napoleon's conquests and the adoption of civil law and penal codes on the French model led to abolition of criminality in many jurisdictions and replacement of death with imprisonment in others.Шаблон:SfnШаблон:Sfn Via military occupation or emulation of the French criminal code, the Scandinavian countries, Spain, the Netherlands, Portugal, Belgium, Japan, and their colonies and territories—including much of Latin America—decriminalized homosexuality.Шаблон:Sfn Former French colonies are less likely than British ones to criminalize homosexuality.Шаблон:SfnШаблон:Sfn The Ottoman Empire is often considered to have decriminalized homosexuality in 1858, when it adopted a French-inspired criminal code,Шаблон:Sfn but Elif Ceylan Özsoy argues that homosexuality had already been decriminalized.Шаблон:Sfn However, some Ottoman men were executed for sodomy including two boys in Damascus in 1807.Шаблон:Sfn
The unification of Germany reversed some of the gains of the Napoleonic conquests as the unified country adopted the Prussian penal code in 1871, re-criminalizing homosexuality in some areas.Шаблон:Sfn In Germany, the prohibition of homosexuality was not frequently enforced until 1933.Шаблон:Sfn In Nazi Germany from 1933 to 1945, an estimated 57,000 men were convicted of violating Paragraph 175.Шаблон:Sfn Never before or since have so many homosexuals been convicted in such a short period of time.Шаблон:Sfn Thousands of men were imprisoned and killed in Nazi concentration camps.Шаблон:Sfn West Germany convicted about the same number of men under the same law until 1969, when homosexuality was partially decriminalized.Шаблон:Sfn
In the Russian Empire, homosexuality was criminalized in 1835 and decriminalized in 1917 as a result of the Russian Revolution.Шаблон:SfnШаблон:Sfn The criminalization was reinstated in 1934, with a harsher penalty than before, for unknown reasons.Шаблон:Sfn
Post-World War II decriminalization trend
In the decades after World War II, anti-homosexuality laws saw increased enforcement in Western Europe and the United States.Шаблон:SfnШаблон:SfnШаблон:Sfn During the 1950s and 1960s, there was a tendency to legalize homosexuality with a higher age of consent than for heterosexual relationships; this model was recommended by various international organizations to prevent young men from becoming homosexual.Шаблон:Sfn Convergence occurred both through the partial decriminalization of homosexuality, as in the United Kingdom (1967), Canada (1969), and West Germany (1969), or through the partial criminalization of homosexuality, such as in Belgium, where the first law against same-sex activity came into effect in 1965.Шаблон:SfnШаблон:Sfn
There was a wave of decriminalization in the late twentieth century; ninety percent of changes to these laws between 1945 and 2005 involved liberalization or abolition.Шаблон:Sfn Eighty percent of repeals between 1972 and 2002 were done by a legislature, and the remainder by the laws being ruled unconstitutional by a court.Шаблон:Sfn Decriminalization began in Europe and the Americas and spread globally in the 1980s.Шаблон:Sfn The pace of decriminalization reached a peak in the 1990s. Following the dissolution of the Soviet Union, many former Soviet republics decriminalized homosexuality,Шаблон:Sfn but others in Central Asia retained these laws.Шаблон:Sfn China decriminalized homosexuality in 1997.Шаблон:Sfn Following a protracted legal battle, the Supreme Court of India ruled that the criminalization of homosexuality violated the Constitution of India in the 2018 Navtej Singh Johar v. Union of India judgement.Шаблон:SfnШаблон:Sfn
One explanation for these legal changes is increased regard for human rights and autonomy of the individualШаблон:Sfn and the effects of the 1960s sexual revolution.Шаблон:Sfn The trend in increased attention to individual rights in laws around sexuality has been observed around the world, but progresses more slowly in some regions, such as the Middle East.Шаблон:Sfn Studies have found that modernization, as measured by the Human Development Index or GDP per capita,Шаблон:Sfn and globalization (KOF Index of Globalization) was negatively correlated with the criminalization of homosexuality.Шаблон:Sfn
Resistance to decriminalization
Шаблон:Further Africa is the only continent where decriminalization of homosexuality has not been widespread since the mid-twentieth century.Шаблон:Sfn In Africa, one of the primary narratives cited in favor of the criminalization of homosexuality is "defending ordre public, morality, culture, religion, and children from the assumed imperial gay agenda" associated with the Global North.Шаблон:SfnШаблон:SfnШаблон:Sfn Such claims ignore the fact that many indigenous African cultures tolerated homosexuality, and historically the criminalization of homosexuality derives from British colonialism.Шаблон:SfnШаблон:SfnШаблон:Sfn In the Middle East, homosexuality has been seen as a tool of Western domination for the same reason.Шаблон:Sfn
The application of international pressure to decriminalize homosexuality has had mixed results in Africa. While it led to liberalization in some countries, it also prompted public opinion to be skeptical of these demands and encouraging countries to pass even more restrictive laws in resistance to what is seen as neocolonial pressure.Шаблон:SfnШаблон:SfnШаблон:Sfn Politicians may also target homosexuality to distract from other issues.Шаблон:SfnШаблон:Sfn Following decolonization, several former British colonies expanded laws that had only targeted men in order to include same-sex behavior by women.Шаблон:Sfn Others, especially Muslim-majority countries in Africa, passed new laws to criminalize homosexual behavior.Шаблон:Sfn In many African countries, anti-homosexuality laws were little-enforced for decades only to see increasing enforcement, politicization, and calls for harsher penalties beginning in the mid-1990s.Шаблон:SfnШаблон:Sfn The rise of Evangelical Christianity and especially Pentecostalism has increased the politicization of homosexuality as these churches have been engaged in anti-homosexual mobilizations as a form of nation building.Шаблон:SfnШаблон:Sfn While such calls often come from domestic religious institutions, the influence of U.S. conservative Christian groups, who have provided networking, training and funding support, has been instrumental in advancing anti-homosexual discourse in Africa.[1][2]
Current status
As of 2020, 21 percent of the world population lives in countries where homosexuality is criminalized.Шаблон:Sfn In its Шаблон:Asof Database, the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) found that homosexuality is criminalized in 62 of 193 UN member states, while two UN member states, Iraq and Egypt, criminalize it de facto but not in legislation. In at least seven UN member states—Brunei, Iran, Mauritania, Nigeria (only northern Nigeria), Saudi Arabia, Uganda, and Yemen—it is punishable by death.[3][4] Two-thirds of countries that criminalize sexual activity between men also criminalize it between women.Шаблон:Sfn In 2007, five countries conducted executions as a penalty for homosexual acts.Шаблон:Sfn In 2020, the ILGA named Iran and Saudi Arabia as the only countries in which executions for same-sex activity have reportedly taken place.Шаблон:Sfn In other countries, such as Yemen, Somalia, Iraq, and Libya, extrajudicial executions are carried out by militias such as Al-Shabaab, the Islamic State, or Al-Qaeda.Шаблон:Sfn In 2021, Téa Braun of the Human Dignity Trust estimated that more than 71 million LGBT people live in countries where homosexuality is criminalized.Шаблон:Sfn
Scope of laws
Laws against homosexuality make some or all sex acts between people of the same sex a crime.Шаблон:Sfn While some laws are specific about which acts are illegal, others use vague terminology such as "crimes against nature", "unnatural offenses", "indecency", or "immoral acts".Шаблон:SfnШаблон:Sfn Some laws exclusively criminalize anal sex while others include oral sex or manual sex. Some sodomy laws explicitly target same-sex couples, while others apply to sexual acts that might be performed by heterosexual couples but are usually enforced against same-sex couples only.Шаблон:Sfn It is more common for men who have sex with men to be criminalized than women who have sex with women,Шаблон:Sfn and there are no countries that only criminalize female same-sex activity.Шаблон:SfnШаблон:Sfn This has been due to a belief that eroticism between women is not really sex and that it will not tempt women away from heterosexuality.Шаблон:SfnШаблон:Sfn Unlike other laws, which criminalized specific sexual acts, the British Labouchère Amendment in 1885Шаблон:Sfn and the 1935 revision of Germany's Paragraph 175 simply criminalized any sexual act between two men.Шаблон:Sfn Both laws made it much easier to convict men for homosexuality, leading to an increase in convictions.Шаблон:SfnШаблон:Sfn
Penalties vary widely, from fines or short terms of imprisonment to the death penalty.Шаблон:Sfn Some laws target both partners in the sex act equally, while in other cases the punishment is unequal.Шаблон:SfnШаблон:Sfn While homosexuality is criminalized country-wide in many cases, in other countries, specific jurisdictions pass their own criminal laws against homosexuality, such as in Aceh province.Шаблон:Sfn Most laws criminalizing homosexuality are codified in statutory law,Шаблон:Sfn but in some countries such as Saudi Arabia they are based on the direct application of Islamic criminal jurisprudence.Шаблон:Sfn
Even in countries where there are no specific laws against homosexuality, homosexuals may be disproportionately criminalized under other laws, such as those targeting indecency, debauchery, prostitution, pornography,Шаблон:Sfn homelessness,Шаблон:Sfn or HIV exposure.Шаблон:Sfn In some countries such as (historically) China and (currently) Egypt, such laws serve as de facto criminalization of homosexuality.Шаблон:Sfn One analysis of the United States found that, instead of being directly arrested under sodomy laws, "most arrests of homosexuals came from solicitation, disorderly conduct, and loitering laws, which were based on the assumption that homosexuals (unlike heterosexuals), by definition, were people who engaged in illicit activity".Шаблон:Sfn In 2014, Nigeria passed the Same Sex Marriage (Prohibition) Act 2013, criminalizing people who have a same-sex marriage ceremony with five years' imprisonment. Although homosexuality was already illegal, the law led to increasing persecution of Nigerian homosexuals.Шаблон:Sfn
Enforcement
Laws criminalizing homosexuality are inherently difficult to enforce, because they concern acts done by consenting individuals in private.Шаблон:SfnШаблон:Sfn Enforcement varies from active persecution to non-enforcement;Шаблон:SfnШаблон:Sfn more often than not, laws are nearly unenforced for private, consensual sex.Шаблон:Sfn In some countries, there are no prosecutions for decades or there is a formal moratorium.Шаблон:Sfn
In Nazi Germany, the site of the most severe persecution of homosexual men in history, only about 10 percent of the homosexual male population was ever convicted and imprisoned.Шаблон:Sfn In Iran, the 2013 penal code forbids authorities from proactively investigating same-sex acts unless kidnapping or assault are suspected.Шаблон:Sfn In some countries such as India (prior to 2018, when the sodomy law was declared unconstitutional)Шаблон:Sfn and Guyana, the laws are not commonly enforced but are used to harass LGBT people.Шаблон:Sfn Indian police have used the threat of prosecution to extort money or sexual favors.Шаблон:Sfn Arrests, even without conviction, can often lead to publicity causing the accused to lose their job.Шаблон:Sfn Those prosecuted under such laws tend to be disproportionately from working-class backgrounds, unmarried, and between twenty and forty years old.Шаблон:Sfn
States including Nazi Germany and Egypt commonly use torture to extract confessions from men suspected of being homosexual.Шаблон:SfnШаблон:Sfn In Egypt, possession of condoms or sexual lubricant or stereotypically feminine characteristics are cited as circumstantial evidence that the suspect has committed sodomy.Шаблон:Sfn Online dating apps have also been used to identify and target men for prosecution.Шаблон:Sfn
Physical examinations purporting to detect evidence of homosexual practices have been employed since at least 1857, when the French physician Auguste Ambroise Tardieu published a book claiming to identify several signs that a person had participated in receptive anal intercourse.Шаблон:SfnШаблон:Sfn Шаблон:As of, at least nine states, including Tanzania, Egypt, and Tunisia, use medically discredited anal examinations in an effort to detect same-sex acts between men or transgender women.Шаблон:SfnШаблон:Sfn There is no evidence that such tests are effective at detecting whether the victim has taken part in homosexual activity.Шаблон:SfnШаблон:Sfn This practice is considered to constitute acts of torture under the United Nations Convention Against Torture.Шаблон:Sfn
Effects
The criminalization of homosexuality is often seen as defining all gays and lesbians as criminals or outlaws.Шаблон:SfnШаблон:Sfn Even when not enforced, such laws express a symbolic threat of state violenceШаблон:Sfn and reinforce stigma and discrimination.Шаблон:SfnШаблон:Sfn Homosexuals may fear prosecutionШаблон:Sfn and are put at risk of blackmail,Шаблон:SfnШаблон:Sfn arbitrary arrest and imprisonment, police beatings, and involuntary medical interventions.Шаблон:Sfn The criminalization of homosexuality in some cases pushes LGBT culture and socialization to the margins of society, exposing LGBT people to crimes such as assault, robbery, rape, or murder from other citizens. They may be afraid to report these crimes or may be ignored by the authorities.Шаблон:SfnШаблон:SfnШаблон:Sfn Such issues lead to severe psychological harm.Шаблон:Sfn The laws also justify discrimination against homosexualsШаблон:Sfn—being cited to deny child custody, registration of associations, and other civil rightsШаблон:Sfn—and prevent LGBT people from exercising their rights to freedom of expression and freedom of association.Шаблон:SfnШаблон:Sfn
Reactions of homosexuals to the laws range from internalizing stigma to losing respect for the laws and civic community in general.Шаблон:Sfn Historian Robert Beachy argues that a confluence of factors including the criminalization of homosexuality meant that a sense of homosexual identity was first developed in Germany around 1900, ultimately catalyzing the first homosexual movement.Шаблон:SfnШаблон:Sfn LGBT movements often developed after the repeal of criminal laws, but in some cases they contributed to repeal efforts.Шаблон:Sfn LGBT activism against criminalization can take multiple forms, including directly advocating the repeal of the laws, strategic litigation in the judicial system in order to reduce enforceability, seeking external allies from outside the country, and capacity building within the community.Шаблон:Sfn A 1986 study found that the decriminalization of homosexuality in South Australia did not lead to an increase in undesirable effects (such as child abuse, public solicitation, or disease transmission) as claimed in parliamentary debates.Шаблон:Sfn
The criminalization of homosexuality has been identified as an exacerbating feature of the HIV epidemic in AfricaШаблон:SfnШаблон:Sfn and Central Asia,Шаблон:Sfn because it dissuades many people at risk of HIV infection from disclosing their sexual behavior to healthcare providers or seeking preventative care, testing, or treatment. Criminalization both reinforces societal disapproval of homosexuality, which is another factor in decreasing the effectiveness of anti-HIV efforts and is independently associated with less access to HIV services.Шаблон:SfnШаблон:Sfn
Support and opposition
Religions
The Abrahamic religions all have traditionally held negative attitudes towards homosexuality. The Hebrew Bible prescribes the death penalty for "lying with another man as with a woman" (Leviticus 20:13) but does not directly address lesbianism. It is disputed if the biblical prohibition was originally intended to prohibit temple prostitution or particular sexual acts between multiple men, particularly those that are seen as compromising a man's masculinity. The total prohibition of homosexual behavior is considered to have evolved relatively late in the Jewish tradition.Шаблон:Sfn Some Christians cite various Bible passages in order to justify the criminalization of homosexuality.Шаблон:Sfn Although the Holy See officially opposes the criminalization of homosexuality, in 2014 Roman Catholic bishops from Malawi, Kenya, Sudan, Tanzania, Eritrea, Zambia, Uganda, and Ethiopia united to demand criminal punishment of homosexuals, calling homosexuality unnatural and un-African.Шаблон:Sfn
According to sharia law, liwat (anal intercourse) and sihaq or musahiqa (tribadism) are considered sins or criminal offenses.Шаблон:Sfn The Sunni Hanafi school, unlike other Islamic schools and branches, rejects analogy as a principle of jurisprudence. Since there is no explicit call for the punishment of homosexuals in the accepted statements of Muhammed, Hanafi jurists classified homosexuality as a sin rather than a crime according to religious law and a tazir offense, meaning the punishment is left to the discretion of secular rulers.Шаблон:SfnШаблон:Sfn According to the Maliki, Shafi'i, Hanbali (Sunni), and Ja'afari (Shia) schools, any penetrative sex outside of marriage or between a man and his female slave is zina, a more serious crime.Шаблон:Sfn Zina is punishable by lashes or death by stoning; whether the death penalty is allowed depends on the school, whether the man has been married, and whether he is the active or passive partner. However, the death penalty can only be applied upon a confession repeated four times by the accused or testimony by four witnesses.Шаблон:SfnШаблон:Sfn All Sunni schools, but not the Shia Ja'afari, consider non-anal sex between men to be a tazir offense.Шаблон:Sfn In recent times, some progressive Muslims have argued for a new interpretation of liwat (which is never defined in the Quran) to mean something other than consensual homosexual acts.Шаблон:Sfn
Adherence to Islam is a major predictor of maintaining laws criminalizing homosexuality and the death penalty for it. The majority of studies have found no association for Christianity.Шаблон:SfnШаблон:SfnШаблон:Sfn State interference in religious matters, for example religious courts having jurisdiction beyond family law or bans on interfaith marriage, is strongly correlated with maintaining the criminalization of homosexuality.Шаблон:Sfn In Africa, anti-homosexual campaigns promoted by conservative Christians, sometimes with support from U.S. conservative evangelical Christian groups, have seen increased law enforcement efforts and the introduction of harsher penalties against homosexual activity.[5][6][7]
Under Buddhist religious law, there is no punishment for homosexuality among laypeople. Although harsh penalties are prescribed for penetrative sexual activity by male monks, novitiates suffer less punishment than for heterosexual activity.Шаблон:Sfn
Arguments for
A prominent reason cited for criminalizing homosexuality is the claim, made without evidence and also without explaining the resulting negative results if it occurred, that it could be spread, and that laws against it would prevent homosexuals from recruiting children.Шаблон:SfnШаблон:SfnШаблон:SfnШаблон:Sfn This rationale was later proved wrong by scientific research showing that sexual orientation was fixed by a young age.Шаблон:Sfn Both Philo of AlexandriaШаблон:Sfn and Heinrich Himmler believed that if allowed to spread unchecked, homosexuality would lead to depopulation; therefore, they advocated harsh punishments.Шаблон:SfnШаблон:Sfn The belief that the West is conspiring to depopulate Africa using homosexuality is also a common argument for retaining the criminalization of homosexuality in Africa.Шаблон:Sfn
Supporters of paternalism argues that the state can interfere in citizens' private lives to secure a vision of the common good.Шаблон:Sfn A common argument is that criminalization of homosexuality is necessary to maintain public morality,Шаблон:SfnШаблон:SfnШаблон:Sfn traditional values, and cultural or social norms.Шаблон:Sfn Anxieties around public morality gained prominence in nineteenth-century Western Europe and North America.Шаблон:Sfn Before the medicalization of homosexuality in the nineteenth and twentieth centuries, it was commonly seen as a vice, similar to drunkenness, that occurred as a result of moral degradation rather than being an innate predisposition.Шаблон:Sfn Soviet officials argued that homosexuality was a social danger that contravened socialist morality, and that criminalization was an essential tool to lower its prevalence.Шаблон:Sfn Some countries have cited the perception that the criminalization of homosexuality would prevent the transmission of sexually transmitted infections, in particular HIV/AIDS, as a reason to keep their laws.Шаблон:SfnШаблон:Sfn
Another reason cited in favor of criminalizing homosexuality is public opinion.Шаблон:SfnШаблон:Sfn The rarity of prosecutions is also cited as a reason not to repeal the laws.Шаблон:SfnШаблон:Sfn
Arguments against
Criticism of the criminalization of homosexuality began to be expressed by Enlightenment thinkers such as legal philosopher Cesare Beccaria in his 1764 treatise On Crimes and Punishments.Шаблон:SfnШаблон:Sfn Early opponents argued that the laws were impractical to enforce,Шаблон:SfnШаблон:SfnШаблон:Sfn ineffective at deterring homosexuality,Шаблон:SfnШаблон:Sfn and overly intrusive into private life.Шаблон:SfnШаблон:SfnШаблон:Sfn For example, Napoleon believed that "The scandal of legal proceedings would only tend to multiply" homosexual acts.Шаблон:Sfn In 1898, socialist politician August Bebel highlighted the disproportionate enforcement of Paragraph 175 against working-class German men as a reason for repeal.Шаблон:Sfn One argument leading to the decriminalization of homosexuality in countries such as Canada, Czechoslovakia, East Germany, and Bulgaria was that homosexuality was a pathological disease and therefore inappropriate as an object of criminal sanctions.Шаблон:SfnШаблон:SfnШаблон:Sfn
Another argument cited for the decriminalization of homosexuality is that morality is distinct from law, which should concern itself only with the public good. Based on the work of John Stuart Mill, the harm principle posits that conduct should only be considered criminal if it harms people other than those performing the action. According to this principle, homosexuality should not be criminalized.Шаблон:SfnШаблон:Sfn The 1957 Wolfenden Report, which proposed the decriminalization of homosexuality in the United Kingdom, sparked a famous debate between Lord Devlin, H. L. A. Hart, and others about whether the law was a suitable instrument for the enforcement of morality when the interests of non-consenting parties are not affected.Шаблон:SfnШаблон:Sfn Many of these justifications are consistent with a strong moral condemnation of homosexualityШаблон:Sfn and are disputes over how best to handle the perceived social problem of homosexuality, rather than being based on the inalienable rights of LGBT people.Шаблон:Sfn
Another line of reasoning argues that homosexuality is not morally wrong. Utilitarian philosopher Jeremy Bentham wrote the first systematic defense of sexual freedom, arguing that homosexuality and other forms of consensual sex were morally acceptable as they were pleasurable to their participants and forbidding these acts destroyed a great deal of human happiness.[8] In the 1860s and 1870s, German Karl Heinrich Ulrichs was the most prominent critic of the criminalization of homosexuality.Шаблон:Sfn His demand for equality before the law and in religion on the basis of an innate, biologically based sexual drive—beginning with the decriminalization of homosexuality and ending with same-sex marriage—are similar to those sought by LGBT rights organizations in the twenty-first century.Шаблон:Sfn As a result of social changes, in the twenty-first century, the majority of people in many Western countries view homosexuality as morally acceptable or not a moral issue.Шаблон:Sfn[9]
Human rights
Шаблон:See also The criminalization of homosexuality is a violation of international human rights law.Шаблон:Sfn The European Court of Human Rights found that laws criminalizing homosexuality violated the right to private life guaranteed by Article 8 of the European Convention on Human Rights in Dudgeon v. United Kingdom (1981), Norris v. Ireland (1988), and Modinos v. Cyprus (1993).Шаблон:Sfn In the 1994 case Toonen v. Australia, the Human Rights Committee ruled that the criminalization of homosexuality in Tasmania violated the right to privacy and non-discrimination guaranteed in the International Covenant on Civil and Political Rights, even though the applicant was never arrested or charged with violating the law. While Tasmania argued that the law was necessary to protect traditional morals and prevent the transmission of HIV, the Human Rights Committee found that arguments about morals are not insulated from international human rights norms.Шаблон:Sfn
In 2014, the African Union's Commission on Human and People's Rights issued a landmark resolution calling for the decriminalization of homosexuality.Шаблон:Sfn In 2020, the Inter-American Commission on Human Rights found in Gareth Henry and Simone Carline Edwards v. Jamaica that Jamaica's laws criminalizing same-sex activities violated the applicants' right to privacy, right to humane treatment, freedom of movement, and principle of legality guaranteed by the American Convention on Human Rights. The commission recommended that Jamaica repeal the laws against same-sex activity in order to guarantee the non-repetition of similar human rights abuses in the future.[10] Persecution on the grounds of sexual orientation is a reason to seek asylum in some countries, including Canada, the European Union, and the United Kingdom, although depending on the case the mere existence of criminal sanctions may not be sufficient for an applicant to be granted asylum.Шаблон:SfnШаблон:Sfn
Public opinion
Шаблон:See also According to a 2017 worldwide survey by ILGA, the criminalization of homosexuality is correlated with more negative opinions on LGBT people and LGBT rights. Overall, 28.5 percent of those surveyed supported the criminalization of homosexuality, while 49 percent disagreed. In states that criminalize homosexuality, 42 percent agree, and 36 percent disagree, compared with non-criminalizing states where 22 percent agree, and 55 percent disagree. Knowing someone who is gay, lesbian, or bisexual is correlated with less support for criminalization.Шаблон:Sfn The number of Americans who agree that homosexuality should be a criminal offense has dropped from 56 percent in 1986 to 18 percent in 2021.[11] Public opinion surveys show that while 78 percent of Africans disapprove of homosexuality, only 45 percent support it being criminalized.Шаблон:Sfn
References
Sources
Books
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- Шаблон:Cite book
- Шаблон:Cite book
- Шаблон:Cite book
- Шаблон:Cite book
- Шаблон:Cite book
- Шаблон:Cite book
- Шаблон:Cite book
- Шаблон:Cite book
- Шаблон:Cite book
- Шаблон:Cite book
- Шаблон:Cite book
- Шаблон:Cite book
- Шаблон:Cite book
- Шаблон:Cite book
Journal articles
- Шаблон:Cite journal
- Шаблон:Cite journal
- Шаблон:Cite journal
- Шаблон:Cite journal
- Шаблон:Cite journal
- Шаблон:Cite journal
- Шаблон:Cite journal
- Шаблон:Cite journal
- Шаблон:Cite journal
- Шаблон:Cite journal
- Шаблон:Cite journal
- Шаблон:Cite journal
- Шаблон:Cite journal
- Шаблон:Cite journal
- Шаблон:Cite journal
- Шаблон:Cite journal
- Шаблон:Cite journal
- Шаблон:Cite journal
- Шаблон:Cite journal
- Шаблон:Cite journal
- Шаблон:Cite journal
- Шаблон:Cite journal
- Шаблон:Cite journal
- Шаблон:Cite journal
- Шаблон:Cite journal
- Шаблон:Cite journal
- Шаблон:Cite journal
- Шаблон:Cite journal
- Шаблон:Cite journal
- Шаблон:Cite journal
- Шаблон:Cite journal
Reports
External links
- #OUTLAWED “The love that dare not speak its name”. (Maps of anti-LGBT laws country by country). Human Rights Watch.
Шаблон:Portal bar Шаблон:LGBTШаблон:Criminalization of homosexuality
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