This Alien Legacy

corruption. Where precolonial peoples had been permissive, sodomy laws would
cure them—and defend their new, white masters against moral contagion.
Chapter II of this report traces the history of Britain’s law on “sodomy,” or “buggery,”
from its medieval origins to the nineteenth-century attempt to rationalize the chaos
of common law. The draft Indian Penal Code, the first experiment in producing a
criminal code anywhere in the Empire, was a test of how systematizing law would
work. Colonial officials codified sodomy as a criminal offense—and refined its
meaning—in the process of writing comprehensive codes. This began in India, and
traveled from Nigeria to the Pacific in the imperial bureaucrat’s baggage.
Chapter III shows how the sodomy provisions connected to other laws and practices
that strengthened the colonial state’s authority: laws that marked out whole
populations as “criminal,” and medical practices that marked off some bodies as
intrinsically, physiologically perverse. Both assumed that laws should not just
punish specific sexual acts, but help control certain types of dangerous persons. 38
Chapter IV traces how courts, under colonialism and in the newly independent states,
interpreted the vague language laid down in the colonial codes. Three themes
emerge.
o First, judges tried to bring an ever wider range of sexual acts within the laws’
punitive reach: descending, while doing it, into almost-comical obsessions
with orifice and organ, desire and detail.
o Second, the sodomy laws almost universally made no distinction on the basis
of consent, or the age of the partners. The horror lawmakers and judges felt
for homosexual conduct simply obliterated these issues. The “homosexual”
therefore emerged before the law deeply tarnished by the association with
pedophilia and rape—as a sexual monster.
o Finally, British provisions on “gross indecency” gave police opportunities to
arrest people on the basis of suspicion or appearance. And they were an
opening for governments looking to criminalize sex between women as well.
38
See Leslie J. Moran, “The Homosexualization of English Law,” in Didi Herman and Carl Stychin, eds., Legal Inversions:
Lesbians, Gay Men, and the Politics of Law (Philadelphia: Temple University, 1995).
11
Human Rights Watch December 2008