Routes to decriminalization: A comparative analysis of the legalization of same-sex sexual acts

Abstract

In many places around the world, sexual acts between persons of the same sex have been criminalized for centuries. The process of decriminalization started as early as 1791 but has not been completed as same-sex acts remain illegal in 77 countries. This article analyses this process showing that in the course of the last two centuries it expanded in several dimensions. Geographically, legalization was for a very long time almost exclusively limited to Europe and Latin America until it became a global phenomenon in the 1980s. For 200 years, national legislators and scientific elites in advisory functions were the drivers of decriminalization. The late 20th century marks a critical turning point. Gay and lesbian movements, national and international courts, and international and supranational organizations such as the Council of Europe and the European Union came on the scene as key players in driving decriminalization. Countries that still criminalize same-sex acts are increasingly put under pressure by the international community to legalize them, which most African and Muslim countries have withstood so far. External intervention is perceived as the continuation of colonial politics, particularly in sub-Saharan Africa.

The Birth of Modern Criminology and Gendered Constructions of Homosexual Criminal Identity

“…Whether societal prejudice and the threat of criminal prosecution posed obstacles to maintaining homosexual relationships, and thus pressured homosexual men to seek non-monogamous and fleeting sexual encounters, did not enter into Lombroso's analysis. Significantly, sodomy was not decriminalized in Italy until the nation-state passed its first penal code in 1890, after Lombroso had released the fourth edition of Criminal Man (Vassalli, 1974;Hildebrandt, 2014). Lombroso himself described samesex intimacy as "unmentionable love" in the passage, which demonstrated the stigma attached to homosexual intimate relationships.…”

Homonationalist/Orientalist Negotiations: The UK Approach to Queer Asylum Claims

“…This polarised image-contrasting State-protectors and State-persecutors of lesbian and gay 11 See, for example, Anderson (2011) or Gettelman (2010. 10 The UK only decriminalised sodomy in Northern Ireland in 1982, after being forced by the European Court of Human Rights (Hildebrandt 2014). Meanwhile in the US, states' sodomy laws were only completely invalidated by the US Supreme Court in 2003 (Kane 2007). people-becomes instrumental in justifying a need for international intervention, in which the British government is represented as personally invested.…”

Christianity, Islam and Modernity: Explaining Prohibitions on Homosexuality in UN Member States

“…As homosexuality is covered relatively openly by Western media, it has been argued that homosexuality is a Western import that should be warded off. Strangely misconceiving the historical facts, the laws imposed by the colonial powers are perceived to be national traditions that must be defended against Western influences (Gupta, 2008;Hildebrandt, 2014). The seventh hypothesis therefore reads H7: Male homosexuality is more likely to be prohibited in former British colonies than in other countries.…”