Studies of Homosexuality Volume 6 Introduction
(March 9, 1992) [vol. 6: Law]
The history of legal involvement with homosexuality is very extensive, going back well into the first millennium B.C., and it looks to continue long into the future, as new and for the most part civil issues replace the outmoded criminal sanctions gradually yielding to the forces of secularization and concern for privacy, aided by the new political power of the gay and lesbian movement.
Although criminal statutes against homosexual conduct remain in nearly half the American states and in many other (usually former colonial) nations, it has become hard to justify them on anything but religious grounds or pure prejudice, and even in those jurisdictions where legislators have balked at taking them off the books, they have usually fallen into desuetude—little more than dead letters. Efforts to repeal the statutes continue, for they retain negative effects quite outside the realm of arrests and convictions. Meanwhile, ancillary criminal issues such as solicitation, loitering, age of consent, and prostitution continue to fuel debate. The behavior of police and other law enforcement agencies has not always responded to changes in general climate, while Christian fundamentalists and the political right (bolstered by some feminists) have revived obscenity laws, recently thought to have become irrelevant, as homo¬phobic weapons. Meanwhile, a new area of criminal concern reflects the rise of homophobic violence, subsumed under the rubric of "hate crimes."
In the realm of civil law, many issues from the 1960s and 1970s remain controversial and emotionally charged, with spotty progress and some setbacks occurring in the sphere of "gay rights" protections against discrimination in employment, housing, and other areas. United States immigration restrictions, at issue since the 1950s heyday of McCarthyism, have recently been laid to rest through Congressional action. Yet difficulties persist for HIV positives—who of course are not necessarily homosexual.
New legal issues have arisen in connection with the AIDS epidemic, and a whole new body of questions is coming to the fore under the heading of "familial rights," seeking to give to gay and lesbian relationships (often in conjunction with unmarried heterosexual pairs) a status similar to that enjoyed by married couples. This effort has major practical consequences with respect to insurance coverage, inheritance, child custody, and the like, and may signal a broad trend towards assimilating the gay couple into a modified social model of the family.
As antiquated sodomy laws fall by the wayside, legislative and judicial attention increasingly focuses on these new and still largely unexplored areas of civil law. This process, however, continues to meet with entrenched homophobia within the judicial system itself; see articles by Joshua Dressler and Lawrence Goldyn, included herein.
The Development of the Criminal Law
In ancient Europe, the first criminal legislation known to history referring to homosexuality reflected a concern with the power status of the citizenry rather than with the act itself. Thus the Athenians barred citizens of both sexes, but not foreigners or slaves, from exploitation as prostitutes. Generally the Greeks not only endorsed but, in some instances, legally fostered the practice of pederasty. Only in his old age did Plato in The Laws urge the criminalization of male-male (and female-female) conduct as "unnatural," but this attack went unheeded.
The Romans analyzed the sexual act in terms of two roles, the insertive or active, befitting a race of conquerors, and the pathic or passive, analogized to the submission of the conquered.
Roman law thus gave free play to insertive behavior, but protected the adult Roman citizen against rape.
With the rise of Christianity to power in the Roman Empire also came the death penalty for male male relations in 342, drawn from Jewish law, and inaugurating a long tradition of governmental hostility in Christian Europe. The Jewish legal prohibition in Leviticus, which applies to males in both positions but not to females, may derive from Persian antecedents based on the Zoroastrian religion. After the fall of the empire in the West (traditionally dated in 476 A.D.), the criminal prohibitions passed for the most part out of the realm of secular government and into the religious sphere, culminating in the Inquisition, though the Church formally turned its victims over to the secular authorities just before burning. (Byzantium retained its own homophobic laws and customs, which passed into the world of the Orthodox Slavs.)
Meanwhile, Islamic law condemned homosexual acts, punishing both parties, if adult and unrepentant. The penalty became 100 lashes if adult but unmarried and stoning to death if married, but there was a major catch: four adult male Muslims of unblemished integrity had to swear they had been eyewitnesses to the act itself. In practice, prosecutions were very rare.
In India, secular law under the Mauryan Empire of the fourth century B.C. established, according to Kautilya's Arthashastra, relatively small fines for male homosexual activity and even smaller ones for lesbian acts; Hindu sacred law in the Code of Manu prescribed ritual purification for upper class men (comparable to those required after having heterosexual sex by daylight), but no other penalties for men; in contrast to every other known law code in the world, Manu carried heavier penalties for lesbian acts. Buddhist sacred law severely prohibited penetrative acts by male monks with either gender, but left laypersons and passive acts unregulated. For monastic novices (usually teenagers) the penalty for homosexual insertive acts was trivial compared to the penalty for heterosexual ones.
In China and Japan, homosexuality was generally legal, though the Manchus, when they assumed control of the Chinese Empire in 1644, introduced their own traditions of disapproval, adopting a law in 1690 prohibiting consensual homosexuality, but this law remained unenforced.
During the later Middle Ages, Christian Europe's secular governments assumed a role as controllers of homosexuality, beginning with the Italian city states (Bologna led the way in 1265). Campaigns against sodomites swept various Italian cities, with vice squads appearing in Venice, Florence, and other municipalities. France and Norway also assumed secular jurisdiction in the thirteenth century. In Central Europe the Holy Roman Empire (a secular organization despite its name) adopted criminal legislation specifying capital punishment in 1532, while Henry VIII imposed the death penalty for buggery in England a year later. These repressive statutes persisted throughout Europe until the French Revolution.
The First Law Reform Movement
Fundamental criticism of the sodomy laws based on criteria of the legitimate purposes of government began with Cesare Beccaria, an official of the Austrian government in Milan, who in 1764 published his influential Dei delitti e delle pene (On Punishments and Crimes). Voltaire endorsed Beccaria's work, and this line of thought bore fruit in 1791 when the revolutionary French Assembly omitted sodomy from the list of sexual offenses; the Code Napoleon of 1810 confirmed this exclusion, a boon that spread to much of Europe and Latin America.
In England, Jeremy Bentham (1748 1832), father of utilitarianism, wrote over 600 pages arguing against the sodomy law on various grounds, but none of this writing appeared in his lifetime, and much of it remains unpublished.
At the end of the nineteenth century Germany witnessed the beginnings of an organized attempt to repeal Paragraph 175 of the Imperial penal code (1872), which criminalized male homosexuality only. The Scientific Humanitarian Committee, founded by Magnus Hirschfeld in 1897, began by drafting a petition to the German legislature, obtaining some 6,000 names for it from among the intellectual elite. A Dutch branch sprang up in 1911 following passage of a law raising the age of consent for homosexual acts only from 16 to 21.
The rise to power of the Nazis doomed the German movement. The Nazis strengthened Paragraph 175 in 1935, though continuing to ignore lesbianism, then began rounding up male homosexuals; convictions rose to nearly 9000 in 1937. The Nazis sent those they arrested for homosexuality to concentration camps, forcing them to wear a pink triangle (rather than the black of other criminal convicts); camp commanders designed conditions to ensure that few survived. Executions began under the euthanasia program as early as 1933. German allies such as Vichy France, Mussolini's Italy, and Horthy's Hungary also undertook persecutions of homosexuals, though without formally criminalizing homosexual acts. The total number of deaths resulting from the Nazi persecution of homosexuals remains controversial, estimates ranging from five thousand to one million.
East and West Germany finally repealed Article 175 in 1968 and 1969 respectively.
In the Soviet Union, the revolutionary Bolshevik regime legalized homosexuality as part of a general abrogation of tsarist laws, but following the Nazi example, Stalin recriminalized male homosexuality in 1934, and the Soviet Union came to an end in 1991 without having repealed the Stalinist edict.
Law Reform in the English Speaking World
England abolished the death penalty for buggery in 1861, having removed oral sex from the law's coverage by court decision in 1817. However, in 1885 Parliament adopted the Labouchere Amendment prescribing a penalty of two years for "gross indecency" between two males; Oscar Wilde went to jail under this provision, which made oral sex again illegal, though continuing to ignore all lesbian acts. See F. B. Smith's article, included herein.
Long stymied, English law reform finally reached the parliamentary agenda with the 1957 publication of a recommendation for decriminalization from a committee headed by John Wolfenden. Parliament had formed this committee at the urging of the Church of England and a number of prominent intellectuals. Lobbyists for repeal established the Homosexual Law Reform Society, but Parliament did not act until 1967 for England and Wales and 1980 for Scotland, retaining criminal penalties for civilian sailors and members of the armed forces, and raising the age of consent to 21 for homosexual acts.
Law reform in the United States began when the American Bar Association drafted its model penal code in 1961, omitting any mention of sodomy; this code became law in the state of Illinois that same year. Eventually, through a combination of court action and legislative repeal, half the American states decriminalized by the end of the 1980s. For a while there was hope that the new legal doctrine of the constitutional right to privacy, enunciated by the Supreme Court in 1965 (Griswold v. Connecticut), could serve as the basis for a challenge to the sodomy laws, and in fact such challenges based on privacy rights found in state constitutions have been successful. The Supreme Court's 5 4 decision in Bowers v. Hardwick (1986) upholding the constitutionality of the Georgia sodomy law—for homosexual acts only, on grounds that the privacy right was connected to "family, marriage and procreation"—was, however, a major setback. See Anne B. Goldstein's and David A. J. Richards' articles, included herein. This decision contrasts sharply with the 1981 Dudgeon case, in which the European Court of Human Rights held that laws penalizing private homosexual acts violated the right of privacy embodied in Article 8 of the European Convention on Human Rights of 1950; see articles by Daniel J. Kane and Jennifer F. Kimble, included.
Canada decriminalized in 1969, Austria in 1971, New Zealand in 1987, and the Australian states of Victoria and New South Wales reformed in 1980 and 1984. Israel discarded its old British law in 1988.
Meanwhile, however, many African nations had inherited colonial sodomy laws from Britain or copied them after independence in a misguided effort to "modernize," and these remain on the books along with laws in various other former British colonies such as India.
The law reform movement still faces stubborn resistance in many parts of the United States and Australia, especially from fundamentalist and Catholic Christians, while quietly continuing to repeal laws in other parts of the world.
Ancillary Criminal Issues
In some jurisdictions where the old sodomy laws have succumbed to reform, the curious anomaly remains that solicitation for these now legal acts, or loitering for the purpose of finding partners for them, are not only illegal but carry a risk of arrest and prosecution. For discussions of solicitation law see articles by Thomas E. Lodge and Arthur C. Warner, included herein.
Prostitution is generally illegal whether homosexual or heterosexual, though arrests are, in the absence of an unusual campaign, usually less common for male than for female prostitutes. Arguments for decriminalization of prostitution as a "victimless crime" have surfaced repeatedly, but with only scattered effect.
Age of consent laws raise numerous issues of their own, but in this context reformers direct attention to the disparities which often exist between the ages at which consent is valid for homosexual and for heterosexual acts. In the light of modern knowledge, and considering that homosexual acts do not expose any minor to the risk of pregnancy, unlike heterosexual ones, these discriminatory provisions are hard to justify. Pederastic organizations have also sought to lower the age of consent, though there is some dispute among them over whether this should be set at puberty or at a lower level or whether the concept is altogether unnecessary.
Censorship and pornography constitute another area where homosexuality sometimes runs afoul of the criminal law; while the general tendency has been to liberalize, notable exceptions have occurred. An English court declared the periodical Gay News to be obscene for blasphemy (the House of Lords subsequently upheld the conviction) after publishing a poem by James Kirkup in 1976. The Canadian government subjected the gay publication The Body Politic to several prosecutions in the 1980s, finally putting it out of business. In 1992 the Supreme Court of Canada upheld censorship of materials deemed harmful to women, using language which suggested that any depiction of women as submissive could be so deemed, and that the same reasoning could be applied to gay male erotica. Censor¬ship was general in the Communist world until 1989, and remains in many Latin American, African, and Muslim countries today.
Legal efforts to suppress what conservative officials in the United States considered homosexual pornography increased during the Reagan administration. In 1990 a grand jury indicted Dennis Barrie, director of the Contemporary Arts Center in Cincinnati, Ohio, but a trial jury then acquitted him of obscenity for displaying an occasionally homoerotic photography collection from the works of Robert Mapplethorpe.
Stemming ultimately from the Italian city states of the late Middle Ages, the vice squad flourished in eighteenth century Paris, where police began keeping track of male pederasts and sodomites as early as 1720; on the basis of these lists, by no means complete, the number of sodomites in the capital was estimated as 40,000 by 1783. These surveillance efforts continued even after decriminalization and provided French governments with material for the blackmail of political opponents.
Entrapment, whereby a plainclothes policeman would deliberately lure male homosexuals into making advances and then arrest them, has a long history, though this practice seems to have declined in the industrial world since the 1960s. Raids on gay facilities like baths and bars were very common until the 1969 Stonewall riots, touched off by just such a bar raid, persuaded most politicians and police officials that these efforts were counterproductive. During their prevalence, these practices often led to public exposure of the homosexuals or extortion by the police; see Steven A. Rosen's article, included herein. Such raids have not entirely ceased, however.
In the past two decades, relations between police and gay organizations have improved in many cities, with police forces appointing liaison officers, conducting sensitivity training, and in some cases recruiting gay and lesbian candidates for the force.
The New Criminology
One of the newest trends in criminal law is the singling out of violent crimes against homosexuals and lesbians, long tolerated or minimally punished, for intense scrutiny, usually under the broader rubric of "hate crimes" or "bias crimes," which serves to include homosexuals along with other groups given this special protection. Such legislation typically provides for statistical monitoring, special attention from trained police department units, and harsher penalties. Violence against homosexuals is the subject of articles by Gregory Herek and by Brian Miller and Laud Humphreys, included herein.
"Gaybashing" or "queerbashing" (usually on the part of males in their late teens) has a long history, yet academics have accorded it very little study. One theory needing investigation is that "queerbashers" are the victims of boyhood sexual abuse, mistakenly believing that their abuser had to be homosexual (a widespread myth) and therefore acting out of a burning desire for revenge and masculinity validation. Another theory, which may coexist with the first, suggests that "queerbashers" are acting out a defense against their own unconscious homosexual desires.
The rape of males is not even a crime in most states and in Britain, but after centuries of silence it is again beginning to come to public attention, with the discussion of boyhood sexual abuse leading the way. Many states have recently adopted gender-neutral rape legislation. Students of the phenomenon now generally recognize that the number of rapes of adult males "in the community" (leaving out those taking place in confinement, where the practice is very widespread) is likely to be as much as one quarter that of females (though the victims very rarely report them to police), and that boys and girls are at equal risk of sexual assault. Much research remains to be done in this area, but already a number of studies have established that the vast majority of the victims and of the perpetrators are other¬wise heterosexual. (While such rapes involve homosexual acts, it is thus usually misleading to call them "homosexual rape.") Occasionally, however, "queerbashing" includes rape of the assumed homosexual, and acquaintance rape does occur among gay men. Males who have survived sexual assault as boys or as adults often show consider¬able confusion over their subsequent gender identity and orientation, influenced by popular stereotypes which equate being penetrated with "loss of manhood" and the inception of homosexual inclination regardless of the circumstances.
Following the example of the black and feminist movements, leaders of gay and lesbian organizations began agitating for "civil rights" protection against discrimination in the late 1960s. With the swelling of the movement after Stonewall, this idea began to gain plausibility, at least in the more liberal communities.
One key question was what the basis of the sought for protection would be, since the group suffering discrimination was not as clear in its membership as those already covered by such laws: blacks, women, Jews, and the like. On the model of provisions in various laws prohibiting discrimination "on the basis of" religion, some sought to extend protection to "sexual orientation," using a term which the drafters thought was clear but which seems more problematical today. A clearer definition would have referred to sexual practices, but that ran afoul of legislators who wanted to maintain discrimination against pedophiles, necrophiliacs, or whatever, and might not have covered acts of discrimination based on prejudice against assumed categories such as "homosexuals." Most advocates, reflecting the ghettoizing culture of the 1970s, ended up defining the subject group as "homosexuals" or "homosexuals and bisexuals," thereby inscribing contested and often dichotomizing identities into law and forcing victims of such discrimination to claim member¬ship in them. This, however, was in line with the strategy of portraying homosexuals as an ethnic minority group in order to take advantage of widespread American assumptions that it was unfair to discriminate against minority groups. See the article by Elvia Rosales Arriola included herein.
Another question was what areas were the rights laws to cover? Employment drew the widest consensus, since even opponents conceded that unemployed gays were a liability to the public, though legislators usually permitted exceptions for church related employers. Housing and public accommodations were next most likely to find themselves under the umbrella of protection.
Promulgation and enforcement were often contentious issues. In some places, executive orders covered city or state agencies and private concerns doing business with them, often due to the failure of balky legislatures to act. But the preferred route was via law, or local ordinance where (as was usually the case) state lawmakers would not act. Enforcement often consisted of no more than efforts at mediation by a weak human rights commission, but some of the laws provided penalties. In any case, the passage of such laws, attended by great publicity, did much to change the climate of opinion and thus the prevalence of discriminatory practices.
The first victories came in 1974 with the adoption of ordinances by St. Paul, Minnesota, and Portland, Oregon. Many more cities and five states (Wisconsin, Massachusetts, Connecticut, Hawaii, and New Jersey) joined over the next sixteen years. In some cities opposition from the Christian right, initially led by singer Anita Bryant and Jerry Falwell's "Moral Majority" lobby, succeeded in repealing rights ordinances through popular referendums; such attempts have not reached the state laws.
The idea of civil rights protection soon spread abroad; in Canada the province of Quebec adopted a law in 1977; Ontario and the Yukon followed a decade later; in between Vancouver passed a rights law in 1982. In 1981 the Assembly of the Council of Europe voted in favor of gay rights, Norway adopted antidiscrimination legislation, and the European Court of Justice struck down a homophobic statute in Northern Ireland. The European Parliament added its voice in favor of gay rights in 1984, and France adopted a national protective law the following year.
In Australia the state of New South Wales adopted gay rights legislation in 1982, while New Zealand passed a national law in 1986. Even Israel succeeded in passing a gay rights law in 1992.
For coverage of the issues involving employment discrimination, see the articles by Arthur S. Leonard, Martin F. Levine and Robin Leonard, and Seth Harris, included herein.
Immigration law has been an issue in the United States since the McCarthy era McCarran Act (1952) excluded "homosexuals and other sex perverts" as "psychopaths," without a whisper of protest from the psychiatric establishment. When a federal appellate court raised questions about this, Congress in 1964 added "sexual deviation" to the exclusion list, and the Supreme Court upheld the policy in Boutilier v. Immigration & Naturalization Service (1967). After the American Psychiatric Association voted to remove homosexuality from the list of mental disorders, however, confusion arose over technical issues, seriously undermining enforcement after 1979. See the articles by Peter N. Fowler and Leonard Graff and by Jorge L. Carro, included. Congress finally repealed this McCarthyite measure with very little notice in the closing hours of the 1990 session. No European nation has adopted such a bar.
A new immigration issue has arisen in many countries over required HIV testing and the exclusion of HIV positive visitors. The United States dropped its exclusion of persons with AIDS, which had become a major issue at the 1990 San Francisco AIDS Conference, along with the McCarran Act clause, but then under pressure from right-wingers the administration resurrected the barrier.
A new cluster of attempts began to arise in the late 1980s to obtain what some call "familial rights," connected in some way to family or quasi family status. San Francisco and other places have adopted "domestic partnership" provisions to provide limited rights, such as eligibility for spousal benefits under city employment contracts, to homosexual lovers. Perhaps more important than the material benefits is the status recognition (which may show up in subsequent private labor, insurance, and rental housing contracts), and not incidentally the emphasis placed by gay and lesbian political activists on couples, an acceptance of the heterosexual model which would have aroused a great outcry from the gay liberation activists of the early 1970s.
Related to partnership are inheritance rights, especially for those whose partners die intestate and for residents of scarce housing units. In New York State, an appellate decision has allowed surviving gay and lesbian lovers to retain rights to a rent controlled apartment originally leased to the deceased. Other areas in which such rights are advancing include next of kin status for the partners of the unconscious ill and the dying, visiting rights in institutions, and private insurance coverage.
Another familial issue is that of custody of children, whether the offspring of bisexual, lesbian, or gay male parents who are divorcing, or the objects of adoption proceedings by single parents. Heterosexuals involved in custody fights have often succeeded in portraying their former partners' homosexuality as proof of unfitness to be a parent. See articles by Nan Hunter and N. Polikoff and by D. J. Kleber et al., included. There is also the practice of "co parenting," whereby a lesbian gives birth through artificial insemination from a male homosexual who agrees to help raise the child.
It may be that the general thrust of the movement toward the securing of familial rights for homosexuals will carry it logically towards the removal of provisions that limit "marriage" itself to heterosexual couples. Denmark took this step for Danes only in 1989, though an exception in the legislation reserves the right of adoption for heterosexual unions. Sweden subsequently adopted similar provisions.
New issues have also arisen in connection with the ongoing AIDS crisis, where civil rights and liberties have often come under attack under the guise of concern for public health. The hysterical reaction of the public to the epidemic has even led to criminal convictions for attempted murder in the face of scientific evidence that the alleged weapon (saliva) is not a vehicle for transmission of the HIV virus. Even the finding of HIV seropositivity can be and often is, where known, the basis for severe discrimination. See articles by Mark Barnes and Judith A. Rabin, included herein.
At the same time, the American courts and Congress have extended greater legal protection against discrimination based on medical status (defining HIV infection as a "handicap" while extending civil rights to the handicapped) than against discrimination on the basis of sexual orientation, still not covered under any federal law.
Persons held in institutions are particularly vulnerable to the stigma of AIDS, and prison authorities have not recognized a right to protection in the form of condoms, which are generally contraband, except in a very few systems, generally on the ground that permitting condoms would amount to "condoning" homosexuality, apparently believing this a fate worse than the death of large numbers of prisoners. Some systems, including the federal prison system, have applied indefinite solitary confinement to HIV positive prisoners, and medical confidentiality is generally lacking.
Insurance companies have sought to exclude persons they consider to belong to "high risk" groups such as male homosexuals (or even unmarried male Manhattan residents), a practice that has elicited challenge in some state legislatures.
While setbacks occur and progress has been painfully slow in some areas, the general trend towards removing the legal opprobrium remaining from the era of Christian dominance of the law seems clear. At the same time, the law is concerning itself more and more with the discriminatory effects of homophobia, adding protective legislation in more and more areas. As the full implications of equal treatment are becoming more widely realized, the area of familial law has provided opportunities for legal pioneers. New issues have also arisen in connection with the ongoing AIDS crisis; more may lie ahead as the epidemic continues to spread, claiming ever increasing numbers of victims.
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