Criminal Laws directed against gay men and women.

When corresponding with people who have read some of our site and emailed us we have time and time again been somewhat surprised (perhaps even shocked) at the level of ignorance about just how many laws are directed at gay men and women in an effort to degrade them.

Eventually we hope to have a number of pages that will look at such issues in a general sense - if nothing else it will help stop us having to constantly repeat so many things in our emailed replies! These pages are not meant to be a complete reference source but to merely provide an overview of some of the issues.

United States

Current status of criminal laws directed against gay men and women are a confusing mix of State based statutes, State based constitutional protections and protections based on the Federal Constitution.

Usually termed "Sodomy Laws" such statutes generally prohibit anal or oral sex, even between consenting adults. Penalties range from a $200 fine to a possible 20 years imprisonment.

While most such laws supposedly apply equally to both straight and gay people the reality is quite a different matter. The Supreme Court has ruled that such laws are overstepping guarantees to privacy when such activity occurs within a relationship recognized as a marriage - but of course gay couples are not permitted to marry and are consequently outside this protection at all times. Such an example would be Maryland where the possible 10 year sentence for "Unnatural or Perverted Sexual Practices" (sic) that applies to both gay and straight couples has been found not to apply to private, consensual, noncommercial heterosexual sex (this law is currently struck down pending final appeals). Another example of what can occur is Puerto Rico where the law against "Sodomy" has been interpreted as applying to all same-sex activity but only heterosexual anal sex.

It is also rare for heterosexual men and women to be bothered by the police on such matters and this simply reflects the bigotry of individual law enforcement officials who while ignoring the commonplace breaking of the statues by straight couples will seek to entrap gay men (in particular). It has been pointed out before that if police departments likewise took it upon themselves to send out young female officers dressed in suggestive clothing and then used these young women to coax someone into making committing a "gross lewdness" there would barely be a straight man alive who had not already been arrested as a result!

The sodomy laws also serve another purpose and that is to deny gay men and women rights that heterosexuals can take for granted. Some cities have used such laws to arrest gay people discussing sex together and they have been invoked to justify removing children from gay parents. Many HIV/AIDS prevention programmes have been rendered near useless by the need to stay within local laws - it is quite impossible to provide adequate information when it is illegal to even so much as discuss how the virus can be transmitted. Such laws have also been invoked to prevent homosexuality being discussed as part of any overall sexuality or social education programmes in schools.

Supporters of such laws often claim that they are necessary to prevent the spread of HIV. This is a nonsense, as all of the laws date back well before 1980 and were therefore clearly designed to suit other purposes. In reality they also do much to curtail the public education campaigns that have been the basis for all successful work against the HIV epidemic.

QUESTION: "Is having the law declared invalid the same as having it removed from the statutes?"

ANSWER: No. Keeping the law "on the books" can be a way of frustrating many initiatives and it can also be used to intimidate people.

For a start - there may come a day when circumstances surrounding a case will allow the law to be declared valid again (at least, for cases in similar circumstances). Judgments are made on the case before the Court and unless the law is found to be completely un-Constitutional (as was the anti-gay "Amendment 2" of Colorado) there may come a day when a Court will find that the merits of the case provide for the law to be valid.

Such confusion surrounds the infamous Bower vs. Hardwick case that went before the US Supreme Court in 1986. The defendant - charged under Georgia's sodomy law - had sought to have the law declared as invalid by reason of infringement on Constitutionally protected rights to privacy. Such a decision, obviously, would have applied to either heterosexuals or homosexuals. The Court decided not to make a judgment on the case before it (that is, whether the privacy provision covered such consenting and private acts). It instead decided to rule on whether there was a constitutionally protected right to have homosexual sex. Of course, there is not such a right specifically stated - anymore than a right to sex is stated for heterosexuals in the Constitution.

Other and narrower cases since that time have found that heterosexual citizens do have such a right - by reason that to marry and to have whatever consenting sexual relationship occurs is a basic right conforming to the right to the "pursuit of liberty and happiness" in the US Constitution. As it stands today; apparently if you are heterosexual your pursuit of liberty and happiness is dependent on your access to a sexual relationship of your choice. If you are gay, you are expected to be just as happy without such a relationship. (Note: these judgments were made on "pursuit of happiness" grounds of and by itself. They did not factor in whether the State had an interest in seeing heterosexual sex occur for purposes of child-bearing etc. The judgments said, in effect, that heterosexuals have a right to sex because it makes them happy.)

The Bower vs. Hardwick case has been used many times since as precedent for allowing State laws against gay sex to stand. In recent years a Judge sitting on the case has made clear statements that he now believes he make a mistake at law. As the final decision was 5 to 4 this blunder by a single person has had some horrendous outcomes. (Interestingly; Bower, the notoriously anti-gay Attorney-General for Georgia and long-time claimant to being in favour of "traditional family values", has since emerged as a long-time adulterer. The State of Georgia also has a law against adultery however Bower did not see fit to have himself charged! Bower is also infamous for firing a lesbian staff member on the grounds that she was in an "immoral relationship" and was likely to therefore break the sodomy law. Such laws are apparently only to be used against people you don't like...)

Even in cases when a person charged under such an invalid law will eventually be discharged by the Courts keeping the law in the statutes has some useful purposes for anti-gay forces. For example, police may use the law to harass people and force them to go through the stress and expense of an arrest, questioning and a trial. And of course such laws have been used too many times to count against gay or lesbian teachers - reasoning that since they were of a class of people who often break such laws they were unfit role models for any child (rarely, of course, do such people as would object to a gay or lsbian teacher have any intention of seeing anti-gay laws removed).

It is rather a sad comment on current US society and it's politics as a whole when one realizes most of the legislative removal of sodomy laws occurred during the 1970's and that very little has been achieved since 1980.

Those victories that have occurred since have only done so through the efforts of groups such as the ACLU and the HRC and have required mounting expensive and expensive Court cases in the hope that some of the judgments will find that the specific laws do infringe on rights guaranteed in the Constitution. However, as Bower vs. Hardwick showed such a path can be fraught with danger if a defendant should happen to find themself in front of an anti-gay set of Judges who are willing to bend the case and as the Federal Defence of Marriage Act (DOMA) (sic) showed - there always remains the possibility that anti-gay politicians will readily pass new laws in a bid to get around any lawfully declared rights.

With regards to laws directed against gay men and women the United States remains a bizarre case: that a country so well provided for in terms of natural wealth, education and opportunity should still manage to throw up a political system that remains in large as deeply backward and as ignorantly violent as that seen during the black Civil Rights movement of the 1950's and 60's is one of life's great mysteries.