SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

have provisions criminalizing same-sex sexual activity. 140 In 2007, Thailand introduced
amendments to its rape laws that recognized same sex sexual assault. 141
The extent of criminalization in Sri Lanka is extraordinary. Section 365 of the Sri Lankan
Penal Code criminalises “unnatural” offences and provides that any person who “voluntarily
has carnal intercourse against the order of nature with any man, woman, or animal” shall be
punished with imprisonment of up to ten years. Punishment is enhanced from 10 to up to 20
years in cases where the offence is committed by a person over 18 years of age in respect of
another person under 16 years and the court is empowered to grant compensation to the
person in respect of whom the offence is committed for injuries (including psychological or
mental trauma) caused to such a person. An explanation provides that penetration is sufficient
to constitute carnal intercourse. 142
However, this Sri Lankan law goes on to further penalize acts of “gross indecency between
persons” under Section 365A. This provides imprisonment for anyone who commits,
participates in the commission of, procures or attempts to procure “the commission by any
person of any act of gross indecency with another person”. Punishment is enhanced from to 2
to up to 20 years in cases where the offence is committed by a person over 18 years of age in
respect of another person under 16 years and the court is empowered to grant compensation
to the person in respect of whom the offence is committed for injuries (including
psychological or mental trauma) caused to such a person. 143 Importantly, here penetration is
not required to constitute the act of “gross indecency” and nowhere does the law even suggest
that a sexual act is meant to be covered. However, the intent of the legislature was to cover
sexual acts not covered by Section 365 in order to include lesbians within the ambit of
criminalization. Section 365A was legislated for that purpose. 144
Amongst the research countries only the criminal laws of Indonesia and Thailand contain
specific provisions on non-consensual same-sex sexual activity. 145
The de-criminalization of consensual same-sex sexual conduct is at various stages in the
research countries. Those countries that were British colonies (i.e. India, Bangladesh and Sri
Lanka) inherited this legal framework from the British and have struggled with its removal.
Indeed, the Indian judgment striking down the anti-sodomy law recognizes that the
criminalization of same-sex sexual conduct discriminates against homosexuals and its
existence has a negative impact on homosexuals’ health 146 . However it remains to be seen if
this will lead to further recognition and expansion of anti-discrimination laws based on sexual
orientation in India or whether the ruling will have a ripple effect in neighboring
140 See Sanders, Douglas, ‘377 - and the unnatural afterlife of British colonialism,’ Paper presented at the 5 th
Asian Law Institute Conference National University of Singapore, May 22 and 23, 2008.
141 See Thailand Criminal Code Amendment Act (No.19) B.E. 2550 (2007). See also Chapter 5 on Violence.
142 Section 365, Penal Code, 1883 (Sri Lanka)
143 Section 365A, ibid.
144 Section 365A as it stood previously only covered acts between males. It stated: “Any male person who, in
public or private, commits, or is parly [sic] to the commission of, or procures or attempts to procure the
commission by any male person of, any act of gross indecency with another male person, shall be guilty of an
offence, and shall be punished with imprisonment of either description for a term which may extend to two
years or with fine or with both, and shall also be liable to be punished with whipping.” It was amended in 1995
to remove any reference to male persons thereby covering females as well.
145 See Chapter 5 on Violence
146 Naz Foundation (India) Trust v Government of NCT of Delhi & others, WP(C) No.7455/2001 [Delhi High
Court], Date of Decision: 2nd July, 2009
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