Section 377

Section 377 of the British colonial penal code criminalized all sexual acts "against the order of nature" in 41 former British colonies. It is or was used to prosecute people engaging in oral and anal sex, homosexual activity, and third gender people, such as hijra in India and apwint in Myanmar. It remains in force in many former colonies, while others have repealed it.

History

Although Section 377 did not explicitly include the word homosexual, it has been used extensively to prosecute homosexual activity. The provision was introduced by British colonial authorities in the British Raj in 1860 as Section 377 of the Indian Penal Code and functioned as the legal impetus behind the criminalization of what was referred to as, "unnatural offenses" throughout the British colonies, in several cases with the same section number.[1][2][3]

Although many former British colonies have gained independence through statehood since Section 377 was implemented, it remains in the penal codes of Malaysia, Singapore (see Section 377A of the Penal Code of Singapore), Pakistan, Bangladesh, Myanmar, and Jamaica. It served as the model for similar laws that remain in force in Bhutan, Brunei, Kiribati, Papua New Guinea, Tonga, Tuvalu, Samoa, Malawi, Mauritius, Sierra Leone, Somalia, Sudan, Solomon Islands, Sri Lanka (as Article 365 of the Sri Lankan Penal Code),[4] Ghana, The Gambia, Kenya, Nigeria, Tanzania, Uganda and Zambia. It was also the model for since-repealed laws in Australia, Botswana, Fiji, Hong Kong, India, and New Zealand.

Text

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 ten 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.[1]

Repeal efforts

In 2018, after decades of grassroots activism, the application of section 377 of the Indian Penal Code to private consensual sex between men was ruled unconstitutional by India's Supreme Court, effectively decriminalizing private homosexual activity.[2][5] As scholars have discussed, "ironically, while Western notions of identity and rights are the engine driving movements to repeal discriminatory laws and practices, in many cases Western colonizers and missionaries either instituted the laws or brought with them the idea that sodomy or 'unnatural sexual practices' were to be equated with Satanism and sin."[1]

See also

References
  1. Stoddard, Eve; Collins, John (2016). Social and Cultural Foundations in Global Studies. Taylor & Francis. p. 135. ISBN 9781317509776.
  2. McCann, Hannah; Monaghan, Whitney (2020). Queer Theory Now. Red Globe Press. p. 163. ISBN 9781352007510.
  3. Chua, Lynette J.; Gilbert, David (2016). "State violence, human-rights violations and the case of apwint of Myanmar". Gender, Violence and the State in Asia. Taylor & Francis. ISBN 9781317325949.
  4. Elliott, Josh (6 September 2018). "India legalized homosexuality, but many of its neighbours haven't". Global News. Retrieved 9 October 2018.
  5. "India Just Decriminalized Gay Sex". BuzzFeed News. Retrieved 2018-09-06.
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