1. The birth of homophobia and its relationship with criminal law
The cultural-historical roots of homophobia, seen as an irrational feeling of aversion to homosexuality, are ancient and deep and can be found in a threefold millennial history.
The overcoming of homosexuality as a normal expression of an individual's sexuality, a characteristic of ancient civilizations (Greek, Roman[1], Egyptian), coincides with the advent of Christianity, and with its recognition as the religion of the Roman Empire (4th century CE with the Edict of Milan).
Indeed, the demonization of homosexuality is based on an orthodox interpretation (however controversial) of some Old and New Testament passages, which led to a condemnation of homosexual behaviours, judged as acts "against nature".
Although the Christian way of thinking has not always been characterized by rigidity, the evolution of Catholic doctrine has been marked, in more recent times, by the affirmation that a person's homosexuality is intrinsic to her nature, and thus in need of treatment[2]. In other words, homosexuality has turned from sin into disorder, which underlines the "unnatural" character of the homosexual relationship as it is not "fruitful", which is one of the most important criteria of Christian spirituality.
Long story short, Christianity has had a significant impact on criminal laws, especially when it comes to sexual ethics. Historically, these laws have often been influenced by a fear or dislike of sex and homosexuality.
2. The historical path towards decriminalization
Things started to change only in 1791 with the French Revolution and the spread of Enlightenment ideas. Homosexuality stopped being considered a crime in most cases because it didn't meet the essential requirement of being socially harmful[3]. However, there were still some exceptions. While the Napoleonic penal code removed the crime, there were still some French rules that allowed some forms of repression for reasons of public decency.
Moreover, in common law countries and in the continental European countries most influenced by Protestantism, the criminal relevance of homosexuality remained intact until recent times. As a way of example, the criminalization of homosexuality in Germany depended on §175 StGB, the article of the German criminal code (Strafgesetzbuch, 1871) that punished “fornication against nature”. The scope of application of this article was enlarged during the Nazi regime and it was used to justify the internment of homosexuals in concentration camps during the first 1940s. After 1945, this article still represented the justification for putting gay people in prison. However, this ill-famed provision was completely abolished only in 1994[4], three years after the reunification of Germany.
In the United Kingdom, the incrimination of homosexual behaviours was instead rooted in Puritanism and the demographic policies of the Victorian Era[5]. This aversion towards homosexual behaviours completely failed only in 1981 with the landmark ECtHR case Dudgeon v. The UK, in which the Court found that Northern Ireland’s laws criminalizing same-sex acts between consenting adults violated the European Convention on Human Rights, namely article 8 on the right to respect for private and family life[6]. This was the first case on the issue of criminalization to succeed under human rights law anywhere in the world and formed the basis of successful litigation in relation to the Republic of Ireland (1988) and Cyprus (1993). Male same-sex activity was decriminalized in Northern Ireland the following year. It has also had a much greater impact, as the principle of decriminalization that it established under the ECHR became an express condition for prospective states to accept before being admitted to the Council of Europe
Figure 1 - Mr Dudgeon during the 40th anniversary of the decision
In the United States, the definitive abolition of the crime of sodomy dates back to 2003, in the well-known Lawrence v. Texas case, discussed before the US Supreme Court. In a 6-3 opinion delivered by Justice Anthony M. Kennedy, the Court held that the Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause (contained in the Fourteenth Amendment)[7].
Figure 2 - Lawrence v. Texas on the "New York Times"
In Italy, on the other hand, the criminalisation of homosexuality was marginal, since it was formally relegated to the pre-unification codes; already with the 'liberal' Zanardelli criminal code of 1889, the first after unification, the rule that punished homosexual behaviour was excluded. This choice, dictated by a form of hypocritical concealment of reality, was also confirmed in the fascist era, by the Rocco criminal code (1930), which did not reintroduce the crime of ‘homosexuality', delegating the homophobic discrimination of the regime to the instrument of confinement, a preventive measure of administrative nature[8]. With the advent of the Italian Republican Constitution (1948) and with a slow process of affirmation of fundamental freedoms, finally, the recognition of international protection in favour of foreigners persecuted in their country of origin because of their homosexual condition was achieved in Italy.
3. The current situation and future perspectives
In a multicultural society, indeed, the recognition of international protection appears relevant, especially if one considers that homosexuality is still punished in about 70 countries around the world, some of which even with the death penalty. In Iran and Afghanistan, the death penalty is regularly applied for consensual same-sex sexual acts; the death penalty is officially law, but generally not practised, in Mauritania, Saudi Arabia, Somalia (in the autonomous state of Jubaland) and the United Arab Emirates.
To face this international problem, in 2011 the United Nations Human Rights Council passed its first resolution recognizing LGBT rights, following which the Office of the United Nations High Commissioner for Human Rights issued a report documenting violations of the rights of LGBT people, including hate crimes, criminalization of homosexual activity, and discrimination. Following the issuance of the report, the United Nations urged all countries which had not yet done so to enact laws protecting basic LGBT rights.
The 2023 Equaldex Equality Index ranks the Nordic countries (Iceland, Denmark, Norway), Malta, Canada, Spain, and the Benelux countries among the best for LGBT rights. Instead, the index ranks Yemen, Brunei, Afghanistan, Somalia, Mauritania, North Corea, Palestine, and Iran among the worst. These data show that the path toward a widespread decriminalization of homosexuality is still long, but some recent events give reason to hope: in 2022, Antigua & Barbuda, Saint Kitts & Nevis, Singapore and Barbados decriminalized; in February 2023 the Parliament of the Cook Islands voted to remove same-sex sexual activity between men from the criminal code. In October Mauritius’ Supreme Court declared a law that criminalized same-sex intimacy between men unconstitutional. In the judgment, the Supreme Court judges underlined the constitutionally protected right to non-discrimination, stating that “[…] are there any valid reasons for the State to discriminate against the plaintiff having sexual intercourse in the only way available to him? The present case concerns the most private and intimate aspects of the identity of homosexual men, namely the manner in which they have sexual intercourse. Accordingly, there must exist particularly serious reasons for the State to justifiably interfere with the manner in which homosexual men choose to have consensual sexual intercourse in private”.
Figure 3 - People at a march for gay rights and gender equality in Rose Hill, Mauritius
Bibliography
Cantarella, E. (1988), Secondo Natura. La bisessualità nel mondo antico, Mondadori
Equaldex (2023), LGBT Equality Index. Tratto da: https://www.equaldex.com/equality-index
European Court of the Human Rights (1981), Case of DUDGEON v. THE UNITED KINGDOM. Tratto da: https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57473%22]}
Human Dignity Trust (2023, November), A History of LGBT Criminalisation. Tratto da:https://www.humandignitytrust.org/lgbt-the-law/a-history-of-criminalisation/
NBC News (October 2023), Mauritius' top court decriminalizes same-sex relations. Tratto da: https://www.nbcnews.com/nbc-out/out-news/mauritius-top-court-decriminalizes-sex-relations-rcna119130
Riccardi, G. (September 2013), Omofobia e legge penale, Diritto Penale Contemporaneo. Tratto da: https://archiviodpc.dirittopenaleuomo.org/d/2515-omofobia-e-legge-penale
[1] As a way of example, male homophobia was not seen as a crime or as an act against nature in Ancient Greece if it met some conditions. The so-called pederasty (i.e., the sentimental and sexual relationship between an adult man and a young man) was considered a necessary step towards adulthood. Even in Ancient Rome homosexual erotic relationships between men were not criminalized, as long as they took place between a free man (who could only play the active role) and a slave or a male prostitute (who could only play the passive role). This strict rule was broadly disapplied during the late Republic and the imperial period, when some important figures (like Julius Caesar himself, Gaius Valerius Catullus or emperor Hadrian) were also known for their homoerotic relationships. [2] In this respect, see the 1986 Vatican document Letter to the bishops of the catholic church on the pastoral care of homosexual persons. This controversial letter was written by the then Prefect of the Congregation for the Doctrine of the Faith, cardinal Joseph Ratzinger (later Pope Benedict XVI). [3] See C. Beccaria, Dei delitti e delle pene, Livorno 1964 & J. Bentham, On Pederasty, 1785. [4] Although the provision was abolished in 1994, East Germany already limited its scope of application in 1968 and West Germany did the same in 1969 and again in 1973. [5] In this respect, see the trial experience of Oscar Wilde (1895): https://www.history.com/topics/gay-rights/oscar-wilde-trial [6] Case of Dudgeon v. The UK (Court Plenary), Strasbourg, 22 October 1981: “The present case concerns a most intimate aspect of private life. Accordingly, there must exist particularly serious reasons before interferences on the part of the public authorities can be legitimate for the purposes of paragraph 2 of Article 8 (art. 8-2)”. [7] "Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government", wrote Justice Kennedy in the opinion he delivered for the majority.. [8] Many homosexual men were deported to San Domino, one of the Tremiti Islands in the Adriatic Sea, which became a criminal detention community for queer people.
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