Chapter one: Decriminalisation

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Laws criminalise same-sex sexual conduct in 76 countries around the world. Occasionally the laws are drafted with great precision, but more commonly they use language such as “carnal knowledge against the order of nature” or “gross indecency”. These are usually known as morals offences and are justified by reference to tradition, popular opinion, and public morality. What they share is that they all make private sexual activity between consenting adults illegal.

Laws criminalise same-sex sexual conduct in 76 countries around the world.^[1] They are often referred to as sodomy laws. Sometimes these laws criminalise specific sexual acts, such as anal and oral sex, regardless of the sex of the partners. Sometimes they criminalise any kind of sexual contact between partners of the same sex. The majority focus on sex between men, although recently both Botswana and Malawi have enacted laws criminalising lesbian sex. Occasionally the laws are drafted with great precision, but more commonly they use language such as “carnal knowledge against the order of nature” or “gross indecency”. These are usually known as morals offences and are justified by reference to tradition, popular opinion, and public morality. What they share is that they all make private sexual activity between consenting adults illegal.

Initially most legal reform around decriminalisation occurred legislatively. In 1957, the Wolfenden Committee issued a report recommending that the United Kingdom should decriminalise homosexual conduct in private. The Wolfenden Report reflected a theory of the relationship between criminal law and morality that was first popularised by the political philosopher J.S. Mill and later by H.L.A. Hart. In the words of the Wolfenden Report: “[U]nless a deliberate attempt be made by society 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”.^[2] In other words, the function of the criminal law should be to prevent harm, not to legislate moral values.

The Wolfenden Report marked a turning point. The United Kingdom followed its recommendations by amending the Sexual Offences Act in 1967. The Report influenced the American Law Institute’s development of the Model Penal Code (MPC), which removed homosexuality from its list of offences. The MPC in turn led many US States to repeal laws that prohibited consensual sodomy. Excerpts from the Wolfenden Report appeared in the case Dudgeon v. United Kingdom (1981), in which the European Court of Human Rights struck down laws in Northern Ireland that prohibited all sexual activity between men, on the grounds that they violated the right to privacy guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms. Dudgeon effectively made legislative repeal mandatory in all Council of Europe countries.

Internationally, in 1994 the UN Human Rights Committee decided (in the case of Toonen v. Australia) that Tasmania’s sodomy laws violated Articles 17 (privacy) and 26 (non-discrimination) of the International Covenant on Civil and Political Rights (ICCPR).^[3]. In so doing, it rejected Tasmania’s public morality justification. Since Toonen, the Human Rights Committee and other UN treaty bodies have repeatedly urged States to decriminalise consensual same-sex sexual conduct.

Change occurs judicially as well as legislatively. Recent years have witnessed a rise in constitutional challenges to sodomy laws. The cases presented here show how arguments have been developed in national courts. What is striking is that almost all of these cases draw heavily on both international human rights and comparative constitutional law. National courts are engaged in an ongoing conversation, specifically about same-sex sexual conduct and more generally about the criminal law’s role in regulating private, consensual and non-harmful conduct. The following themes are evident in a review of the cases.

Locus Standi (Standing). In many of the cases, the unconstitutionality of the law is raised as a defence by the defendant in a criminal case. However, in Hong Kong, India and South Africa, applicants brought challenges based on the prospective application of the law. Both South Africa and India have liberal standing doctrines. In the Hong Kong case of Leung v. Secretary for Justice, the government argued that, since the applicant had never been prosecuted under the law in question, he did not have sufficient interest to challenge it. The court disagreed. If the government’s view were followed, the applicant would have access to justice only if he broke the law. In fact, the applicant’s life had already been “seriously affected by the existence of the legislation in question”. The Hong Kong court’s reasoning followed the analysis of the European Court of Human Rights in cases such as Norris v. Ireland and Sutherland v. United Kingdom, both of which concluded that even unenforced criminal laws interfered with the applicant’s private life.^[4] The Leung Court quoted Sutherland. “Even though the applicant has not in the event been prosecuted or threatened with prosecution, the very existence of the legislation directly affected his private life: either he respected the law and refrained from engaging in any prohibited sexual acts prior to the age of 18 or he committed such acts and thereby became liable to criminal prosecution.” Similar reasoning was used in Toonen v. Australia by the UN Human Rights Committee, which likewise found a direct and continuous interference with the applicant’s right to privacy.

In addition to the threat of future prosecution, the European Court in Norris emphasised present harms experienced by the applicant. The applicant was a victim within the meaning of Article 25 of the Convention, because the law could be enforced against him in the future and because, even unenforced, it caused prejudice and social exclusion. Both the High Court of Delhi in the Naz Foundation and the Constitutional Court of South Africa in National Coalition for Gay and Lesbian Equality emphasised the stigmatising effects of the criminal law on gay men. The law’s “symbolic effect is to state that in the eyes of our legal system all gay men are criminals”, wrote Justice Ackermann in the majority opinion. In Leung, the Court of Appeal excerpted Justice Sachs’ description of the case, that it was “about the status, moral citizenship, and sense of self-worth of a significant section of the community”. The Hong Kong Court then concluded that, because the case affected “the dignity of a section of society in a significant way”, the applicant had sufficient interest to bring his claim.

Note, however, that this perspective on standing is not universal. In Tan Eng Hong v. Attorney General, the High Court of the Republic of Singapore held that, although the applicant satisfied the “substantial interest” test, meaning he had an actual interest in the outcome, he failed to meet the “real controversy” requirement. There could be no “real contest of the legal rights,” as required by case law in Singapore, because the original charges against the applicant had been dismissed and he had in fact pleaded guilty to another offence.

Position of Governmental Institutions. In the South Africa and Fiji cases, national human rights institutions intervened on the side of the claimants. In the Naz Foundation case, the government of India adopted two different positions: the Ministry of Home Affairs supported the constitutionality of the law and the Ministry of Health & Family Welfare argued that Section 377 hindered HIV/AIDS prevention efforts. These apparently contradictory responses on the part of government (or government-affiliated institutions) recall the government positions in both Dudgeon and Toonen. In Dudgeon, the sodomy laws had already been repealed in England, Wales, and Scotland. Northern Ireland’s laws were thus in contrast to those applying elsewhere on the United Kingdom. In Toonen, the federal government of Australia did not oppose the challenge to the criminal laws of Tasmania. In the US case of Lawrence v. Texas, although there was no federal government position, the number of States with sodomy laws had dropped by half since Bowers, signalling some degree of State acceptance.

Privacy. The right to privacy is protected by Article 17 of the ICCPR as well as by many domestic constitutions. In some countries that lack an express privacy provision, such as India and the United States, the right has been inferred from other constitutional guarantees concerning life and liberty. Both legislative reform, inspired by the Wolfenden Report, and decisions of the UN Human Rights Committee and the European Court of Human Rights, were premised on the right to privacy and the related concept of autonomous decision-making. Thus in Toonen the Human Rights Committee observed that it was “undisputed that adult consensual sexual activity in private” is covered by the concept of privacy, while in Dudgeon and its progeny, Norris v. Ireland and Modinos v. Cyprus, the European Court reached the same conclusion in respect of Article 8 of the European Convention. The US Supreme Court case of Bowers v. Hardwick (1986) (overruled byLawrence in 2003), also dealt exclusively with the case as a question of privacy. Later cases, however, have examined equality and non-discrimination aspects in addition to privacy. In National Coalition, Naz Foundation, Nadan & McCoskar v. State, and Lawrence (Justice O’Connor’s concurrence), both are considered. Because the Hong Kong cases included here challenge differential age of consent (Leung) and difference in treatment for public sexual activity (Yau), the judicial analyses focused on equality and discrimination arguments.

In cases striking down sodomy laws, privacy is about more than protection for physical spaces, such as the home. In the words of Justice Kennedy’s opinion for the court in Lawrence:

Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves the liberty of the person both in its spatial and in its more transcendent dimensions.

In National Coalition, both the majority and concurring opinions emphasised that privacy involved space for private decisions about personal relationships. Justice Ackermann wrote: “Privacy recognises that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. The way in which we give expression to our sexuality is at the core of this area of private intimacy.” Justice Sachs wrote that the right to privacy is based on “the notion of what is necessary to have one’s autonomous identity . . . What is crucial is the nature of the activity, not its site”.

In Banana, the Supreme Court of Zimbabwe rejected any such right to privacy under the Constitution. According to the court, the Constitution guaranteed only protection from arbitrary search or entry and had “nothing whatever to do with whether or not consensual sodomy is a crime”. Privacy was not addressed in the Botswana case of Kanane v. State.

Equality. Equality arguments arise under both non-discrimination and equal protection of the law guarantees. These rights are closely related. The principle of equality requires that persons who are equally situated are treated equally. Failure in this regard will amount to discrimination unless an objective and reasonable justification exists.

The right to non-discrimination was not considered by the European Court in Dudgeon, but in the 1999 case of Salgueiro da Silva Mouta v. Portugal the Court held that sexual orientation is a concept “undoubtedly” covered by the open-ended grounds of prohibited discrimination listed in Article 14 of the European Convention.^[5] Human Rights Committee jurisprudence includes sexual orientation under Article 26 of the ICCPR. In South Africa, both the interim Constitution and the 1996 Constitution include sexual orientation as a prohibited ground of discrimination, making South Africa the first country in the world to include such a textual provision.

In Kanane and Banana, the courts rejected challenges to the law based on non-discrimination. Section 23 of the Constitution of Zimbabwe and Section 15 of the Constitution of Botswana both enshrine the right to be free from discrimination on the basis of certain enumerated grounds. Sexual orientation is not among them. Both courts held that their constitutions did not include “sexual orientation” as a prohibited ground, although in Botswana the court had earlier found the list of discriminatory grounds to be illustrative and not exhaustive. In Kanane, the Botswana Court of Appeal noted that the “public interest must . . . always be a factor in the court’s consideration of legislation particularly where such legislation reflects a public concern”. It concluded that: “[t]he time has not yet arrived to decriminalise homosexual practices even between consenting adult males in private. Gay men and women do not represent a group or class which at this stage has been shown to require protection under the Constitution.” Conversely, the Delhi High Court held that “sexual orientation” was an analogous ground to sex under Article 15 of the Constitution, which protects against discrimination on several enumerated grounds. In reaching this conclusion it relied on the reasoning of the Human Rights Committee in Toonen as well as the Canadian Supreme Court in Egan v. Canada.

The American and Indian constitutions do not list specified grounds under their equal protection clauses. As the Delhi High Court explained: “Article 15 is an instance and particular application of the right of equality which is generally stated in Article 14”. Equal protection jurisprudence in both countries requires that a classification drawn by law be rationally related to a legitimate State interest. In her concurrence on equal protection grounds in Lawrence, Justice O’Connor rejected public morality as a justification for the law. In Naz Foundation, the court also found that public morality is not a legitimate State interest and held that, although protection of public health was a legitimate State interest, the law at issue was not rationally connected to this legislative end. Similar reasoning regarding the protection of public health was used by the Human Rights Committee in Toonen.

In Yau, in order to meet the justifications test, the government argued that there was a genuine need for differential treatment and that this was established by the fact that the legislature had enacted the law. The court disagreed, saying that a genuine need for differential treatment could not be established from the mere act of legislative enactment. Therefore the law failed at the first stage of the test.

Laws can be discriminatory even if they are written in neutral terms. In Leung, the law in question imposed a higher age of consent for all acts of anal sex, regardless of whether the partners were of the same or opposite sex. The Court of Appeal, adopting the reasoning of the lower court, found that anal and vaginal sex were equivalent and therefore it was discriminatory to impose a higher age of consent on the former than the latter. “Denying persons of a minority class the right to sexual expression in the only way available to them, even if that way is denied to all, remains discriminatory when persons of a majority class are permitted the right to sexual expression in a way natural to them.”

Public Morality. When a constitutional right is infringed, courts engage in a similar proportionality analysis. (See, for examples, Section 36(1) of the Constitution of South Africa and Section 37 of the Constitution of Fiji.) As the Hong Kong Court of Appeal stated in Leung: “Any restriction on a constitutional right can only be justified if (a) it is rationally connected to a legitimate purpose and (b) the means used to restrict that right must be no more than is necessary to accomplish the legitimate purpose in question”. In American equal protection jurisprudence, this is known as rational basis review. A law will be sustained if the classification drawn by the statute is rationally related to a legitimate State interest. Laws that infringe fundamental rights such as privacy are subjected to a higher standard of review in both India and the USA.

The chief justification advanced for laws criminalising same-sex sexual conduct is that they protect and preserve public morality. The legitimacy of public morality, sometimes characterised by courts as popular opinion on matters of sexual morality, was dispositive in the Kanane and Banana cases. In Kanane, the Court found “no evidence that the approach and attitude of society in Botswana to the question of homosexuality and to homosexual practices by gay men and women requires a decriminalisation of those practices, even to the extent of consensual acts by adult males in private”. In Banana, the majority opinion of the Supreme Court of Zimbabwe stated: “I do not believe that this court, lacking the democratic credentials of a properly elected parliament, should strain to place a sexually liberal interpretation on the Constitution of a country whose social norms and values in such matters tend to be conservative”. Chief Justice Gubbay disagreed. In his dissent he wrote: “In my view, the criminalisation of anal sexual intercourse between consenting adult males in private, if indeed it has any discernable objective other than the enforcement of private moral opinions of a section of the community (which I do not regard as valid), is far outweighed by the harmful and prejudicial impact it has on gay men”.

In Nadan & McCoskar, the Court appeared to accept that public morality was a legitimate State interest but found that it failed the proportionality test, given the importance of the rights involved. In the Dudgeon line of cases, the European Court likewise accepted that public morality was a permissible reason for limiting the right to privacy. However, since the laws were rarely enforced and interfered with a “most intimate aspect of private life”, they were neither necessary for achieving this goal nor proportional. ^[6]

In Naz Foundation, National Coalition for Gay and Lesbian Equality and Lawrence, the courts rejected the public morality rationale. According to Justice O’Connor: “Moral disapproval of a group cannot be a legitimate State interest under the Equal Protection Clause because legal classifications must not be drawn for the purpose of disadvantaging the group burdened by the law. Texas’ invocation of moral disapproval as a legitimate State interest proves nothing more than Texas’ desire to criminalise homosexual sodomy. But the Equal Protection Clause prevents a State from creating a classification of persons undertaken for its own sake.” In Naz Foundation, after discussing Lawrence, Dudgeon, Norris, and the National Coalition cases, the Delhi Court held: “Moral indignation, howsoever strong, is not a valid basis for overriding individual’s fundamental rights of dignity and privacy”.

All three courts viewed public morality as a pretext for animus. Thus, in National Coalition, Justice Ackermann said that “private moral views” were based “to a large extent on nothing more than prejudice”. In Lawrence, Justice O’Connor wrote: “[B]ecause Texas so rarely enforces its sodomy law as applied to private, consensual acts, the law serves more as a statement of dislike and disapproval against homosexuals than as a tool to stop criminal behavior. The Texas sodomy law raise[s] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” The Delhi High Court, rejecting the public morality rationale, stated: “Section 377 IPC targets the homosexual community as a class and is motivated by an animus towards this vulnerable class of people”. Chief Justice Gubbay raised a similar concern in his dissent in Banana, suggesting that the belief that homosexuality was immoral might in fact be the result of prejudice.

In South Africa and in India, the courts clarified that the rejection of “public morality” was not a rejection of normative values. The South African court recalled the “political morality” of the constitution, and the Indian court made reference to “constitutional morality”. In both countries, the constitutions explicitly value diversity. As the Naz Court explained: “If there is one constitutional tenet that can be said to be [the] underlying theme of the Indian Constitution, it is that of inclusiveness”.

This collection of decriminalisation decisions from almost all regions of the world demonstrates the increasing use of both international and comparative law to interpret constitutional principles of privacy and non-discrimination. Where courts sustain sodomy laws, as in the Kanane and Banana cases as well as the overruled US case of Bowers v. Hardwick, it appears to be because the courts rely on a certain theory of criminal law and, as well, have a narrow view of their institutional role. Thus a court that accepts that public morality alone is sufficient justification for a criminal law is more likely to uphold a sodomy law against constitutional attack. Similarly, a court that views its role as deferential to parliament is less likely to act to safeguard individual rights from majority opinion.