Capital punishment for homosexuality
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Capital punishment for homosexuality was historically implemented by a number of countries worldwide. It currently remains a legal punishment in several countries and regions, all of which have sharia-based criminal laws. Being prescribed by the law does not necessarily mean that the penalty is carried out in practice. Gay people have also faced extrajudicial killings by state and non-state actors.
In current state laws
As of 2020, the following jurisdictions prescribe the death penalty for homosexuality:
- Afghanistan. A new Penal Code enacted in February 2018 explicitly criminalises same-sex sexual conduct. Sources cited by ILGA indicate that there is a "broad consensus amongst scholars that execution was the appropriate punishment if homosexual acts could be proven”. The sharia category of zina (illicit sexual intercourse), which according to some traditional Islamic legal schools may entail the hadd (sharia-prescribed) punishment of stoning, when strict evidential requirements are met. The Hanafi school, prevalent in Afghanistan, does not regard homosexual acts as a hadd crime, although Afghan judges may potentially apply the death penalty for a number of reasons. No known death sentences for homosexuality have been passed since the end of Taliban rule in 2001.
- Brunei's Sharia Penal Code, implemented in stages since 2014, prescribes death by stoning as punishment for same-sex relations. After international backlash, in May 2019, the Sultan of Brunei explained that a "de facto" moratorium on the execution of the death penalty has been in force in the country for the last two decades. This moratorium could be lifted at any time.
- Iran. Homosexual intercourse is declared a capital offense in Iran's Islamic Penal Code, enacted in 1991. Though the grounds for execution in Iran are difficult to track, there is evidence that several people were hanged for homosexual behaviour in 2005-2006 and in 2016, in some cases on dubious charges of rape.
- Mauritania. According to a 1984 law, Muslim men can be stoned for engaging in homosexual sex, though no executions have occurred so far. The country observes a moratorium on the execution of the death penalty since 1987.
- Nigeria, where several northern states have adopted sharia-based criminal laws.
- Pakistan, where the death penalty for homosexual acts is technically permitted by the law, but not applied in practice.
- Qatar, applicable only to Muslims, for extramarital sex regardless of the gender of the participants. There is no evidence that the death penalty has been applied for consensual same-sex relations taking place between adults and in private.
- Saudi Arabia, which does not have codified criminal laws. According to the country's interpretation of sharia, a married man who commits sodomy, or a non-Muslim who engages in sodomy with a Muslim, can be stoned to death. There were unconfirmed reports that two cross-dressing Pakistani nationals were killed by Saudi authorities in 2017, which Saudi officials have denied.
- Somalia ( Jubaland), ( Somaliland) where Islamic courts have imposed sharia-based death penalties in some southern regions.
- Sudan, for a third conviction.
- United Arab Emirates: Legal experts disagree on whether the federal law of the United Arab Emirates prescribes the death penalty for consensual gay sex or only for rape. Article 354 of the Federal Penal Code states: "shall be sentenced to death penalty, whoever used coercion in having sexual intercourse with a female or sodomy with a male." In addition, same-sex relations fall under the traditional Sharia category of Zina, which encompasses any sexual intercourse outside of marriage, all of which are banned in the UAE. Although application of Zina provisions in the UAE appears to be limited to prosecution of rape, some courts have gone beyond codified laws and passed sentences of stoning or flogging, thus theoretically making same-sex relationship liable to death penalty. A recent Amnesty International report states that they are not aware of any death sentences for homosexual acts.
- Yemen: If the same-sex activity occurs outside of marriage, the death penalty can be enforced. Oftentimes, death is the resulting penalty due to honor killings and vigilante executions.
Anti-gay purges in the Chechen Republic, a part of the Russian Federation, have included forced disappearances — secret abductions, imprisonment, and torture — by authorities targeting persons based on their perceived sexual orientation. An unknown number of men, who authorities detained on suspicion of being gay or bisexual, have reportedly died after being held in what human rights groups and eyewitnesses have called concentration camps.
Report of vigilante executions, beatings, and torture have been reported in highly religious regions of Africa. In these countries, police turn a blind eye or even are complicit in the anti-gay violence.
Australian states and territories inherited British laws relating to homosexuality, and laws passed in nineteenth century colonial parliaments retained the provisions which made homosexual activity a capital crime until 1861. Most jurisdictions removed capital punishment, although in Victoria it remained a capital crime when committed with violence or to a person younger than the age of fourteen until 1949. The last person arrested for homosexual sex in Australia was a man in 1984 in Tasmania. The last part of Australia to legalise consensual homosexual sex between adults was Tasmania in 1997. In 2017, homosexual marriage was legalised.
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Despite numerous countries in Europe, the Americas and Asia beginning to decriminalise homosexuality by the mid 20th century, Adolf Hitler and his Nazi Party, with intense far-right nationalist support, outlawed homosexual groups and included homosexuals as one of the minority groups sent to death camps. An estimated 3000-9000 homosexuals died in concentration camps between 1933 and 1945, with another 2000-6000 survivors made to serve the rest of their sentence in prison under Paragraph 175.
From 1533 the capital felony for any person to "commit the detestable and abominable vice of buggery with mankind or beast", was repealed and re-enacted several times, until it was reinstated in 1563 remaining unchanged until 1861. The last execution took place on 27 November 1835 when James Pratt and John Smith were hanged at Newgate.
United States and colonial America
Colonial America had the laws of the United Kingdom, and the revolutionary states took many of those laws as the basis of their own, in some cases verbatim. The last law where the death penalty was on the statute books was South Carolina, the old British law was not repealed until 1873, twelve years after the mother country.
The number of times the penalty was carried out is unknown. Records support two executions, and a number of more uncertain convictions, such as "crimes against nature".
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Lawyers in the country and other experts disagree on whether federal law prescribes the death penalty for consensual homosexual sex or only for rape. In a recent Amnesty International report, the organization said it was not aware of any death sentences for homosexual acts.
- Mendos, Lucas Ramón (2019). State-Sponsored Homophobia 2019 (PDF). Geneva: ILGA. p. 347.
- Mendos, Lucas Ramón (2019). State-Sponsored Homophobia 2019 (PDF). Geneva: ILGA. p. 359.
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- "UAE Penal Code" (PDF). ADJD.gov.ae. Retrieved 1 February 2020.
- Lucas Ramón Mendos (2019). "State-Sponsored Homophobia" (PDF). International Lesbian, Gay, Bisexual, Trans and Intersex association (13th ed.). p. 479. Retrieved February 7, 2020.
However, it is through the Sharia code that the death penalty theoretically can apply to same-sex sexual relations through the offence of Zina, which applies to sexual relations outside of marriage of any sort. However, it appears that the law is used in rape cases only although in some cases courts have gone beyond codified laws and imposed harsher sentences of stoning and flogging for Zina crimes.
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