Capital punishment for homosexuality
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Capital punishment for homosexuality was 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 also face extrajudicial killings by state and non-state actors, as in Chechnya in 2019.
In current state laws
As of July 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.
- Iran. Homosexual intercourse is declared a capital offense in Iran's Islamic Penal Code, enacted in 1991. Articles 233 through 241 criminalise both female and male same-sex activity; the death penalty only applies to some cases of male-male penile-anal intercourse, with female-female activity and other cases of male-male activity being punished by flogging instead of execution. 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 has observed a moratorium on the execution of the death penalty since 1987.
- Nigeria, where several northern states have adopted sharia-based criminal laws, though no executions are known.
- 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 are unconfirmed reports that two cross-dressing Pakistani nationals were killed by Saudi authorities in 2017, which Saudi officials have denied.
- Somalia ( Jubaland), where Islamic courts have imposed sharia-based death penalties in some southern regions.
- 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.
Anti-gay purges in the Chechen Republic, a predominantly Muslim region of Russia, have included forced disappearances — secret abductions, imprisonment, and torture — by local Chechen 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 countries such as Uganda, South Africa, Kenya, Liberia, Ghana, Cameroon, and Senegal. 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.
Seven men are known in Australian history to have been executed for sodomy; however, six of those seven cases involved the sexual abuse of minors. In the remaining case, Alexander Browne was hanged at Sydney on 22 December 1828 for sodomy with his shipmate William Lyster on the whaler Royal Sovereign; Lyster was also convicted and sentenced to death, but his sentence was commuted before execution. Additionally, Joseph Fogg was hanged at Hobart on 26 February 1830 for an "unnatural crime", but the nature of the crime is unclear (the term could refer to consensual sex between adult males, same-sex rape, sexual abuse of minors, or bestiality).
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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.
In July 2020, the sodomy law that previously punished gay men with up to 100 lashes for the first offence, five years in jail for the second and the death penalty the third time around was abolished, with new legislation reducing the penalty to prison terms ranging from five years to life. Sudanese LGBT+ activists hailed the reform as a 'great first step', but said it was not enough yet, and the end goal should be the decriminalisation of gay sexual activity altogether.
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 Prison in London.
United States and colonial America
Colonial America variously inherited the laws of the Kingdom of Spain (Spanish Florida and the New Spain); the Kingdom of England to 1707, and from 1707 to independence, the Kingdom of Great Britain; the Kingdom of France (Louisiana and New France); and the Russian Empire (Alaska). The independence of the Thirteen Colonies did not prompt changes to pre-existing legal systems but the subsequent westward expansion of the United States was accompanied by English legal traditions replacing those introduced by the French, Spanish and Russians (except in the future State of Louisiana).
South Carolina was the last state, in 1873, to repeal the death penalty for homosexual behaviour from its statute books. The number of times the penalty was carried out is unknown. Records show there were at least two executions, and a number of more convictions with vague labels, such as "crimes against nature".
- DeJong, Christina; Long, Eric. "The Death Penalty as Genocide: The Persecution of "Homosexuals" in Uganda". Handbook of LGBT Communities, Crime, and Justice. Springer. pp. 339–362. ISBN 978-1-4614-9188-0.
- Mendos, Lucas Ramón (2019). State-Sponsored Homophobia 2019 (PDF). Geneva: ILGA. p. 429.
- "Here are the 10 countries where homosexuality may be punished by death". The Washington Post. 16 June 2016. Retrieved 25 August 2017.
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- correspondent, Hannah Ellis-Petersen South-east Asia (2019-03-28). "Brunei introduces death by stoning as punishment for gay sex". The Guardian. ISSN 0261-3077. Retrieved 2019-03-28.
- "Brunei says it won't enforce gay death penalty after backlash". Reuters. Retrieved August 19, 2019.
- Aengus Carroll; Lucas Paoli Itaborahy (May 2015). "State-Sponsored Homophobia: A World Survey of Laws: criminalisation, protection and recognition of same-sex love" (PDF). International Lesbian, Gay, Bisexual, Trans and Intersex association. Retrieved April 5, 2019.
- Refugees, United Nations High Commissioner for. "Refworld | Iran: Islamic Penal Code". Refworld. Retrieved 2020-07-20.
- Asal, V.; Sommer, U. Legal Path Dependence and the Long Arm of the Religious State: Sodomy Provisions and Gay Rights Across Nations and Over Time. State University of New York Press. p. 64.
- "How homosexuality became a crime in the Middle East". The Economist. June 6, 2018.
- Bearak, Max; Cameron, Darla (16 June 2016). "Analysis - Here are the 10 countries where homosexuality may be punished by death". The Washington Post.
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.
- "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.
- "Under ISIS: Where Being Gay Is Punished by Death". ABC News. 13 June 2016.
- "A Victim of the Anti-Gay Purge in Chechnya Speaks Out: 'The Truth Exists'". Time. 26 July 2019.
- Smith, Lydia (10 April 2017). "Chechnya detains 100 gay men in first concentration camps since the Holocaust". International Business Times UK. Retrieved 16 April 2017.
- Reynolds, Daniel (10 April 2017). "Report: Chechnya Is Torturing Gay Men in Concentration Camps". The Advocate. Retrieved 16 April 2017.
- Rice, Xan (2011-01-27). "Ugandan gay rights activist David Kato found murdered". The Guardian. ISSN 0261-3077. Retrieved 2019-08-01.
- United States Department of State, Bureau of Democracy, Human Rights and Labor (2012). "LIBERIA 2012 HUMAN RIGHTS REPORT" (PDF). state.gov. Retrieved 2019-08-01.
- "Senegal: Gay Couple Brutally Assaulted by Parents". archive.globalgayz.com. Retrieved 2019-08-01.
- "Amid 'Kill the Gays' bill uproar, Ugandan LGBTQ activist is killed". NBC News. 16 October 2019.
- "Born free, killed by hate - the price of being gay in South Africa". BBC News. 7 April 2016.
- "Gay men hacked with machetes and murdered in wave of hate crimes in Kenya". Gay News. 17 July 2013.
- "Cameroonian LGBTI activist found tortured to death in home". GLAAD. 2013-07-17. Retrieved 2019-08-01.
- Carbery, Graham (2010). "Towards Homosexual Equality in Australian Criminal Law: A Brief History" (PDF) (2nd ed.). Australian Lesbian and Gay Archives Inc.
- "Toonen v. Australia, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994)". hrlibrary.umn.edu. Retrieved 2019-10-08.
- Those six cases being:
- John Mead, hanged at Sydney on 29 November 1836 for the forcible sodomy of a ten year old boy
- William Gibson, hanged at Launceston on 31 January 1859 for sodomy of a ten year old boy
- Hendrick Whitnalder, hanged at Hobart on 20 February 1863 for sodomy of a fourteen year old boy
- John Kelly, hanged at Beechworth on 4 May 1867 for sodomy of an eighteen month old boy
- Thomas Ross, hanged at Launceston on 30 January 1861 for an "unnatural crime" against a "little boy" of unknown age
- Dennis Collins, hanged at Launceston on 11 August 1863 for an "unnatural crime" against a seven year old boy
- "Unfit for Publication press cuttings list" (PDF). Australian Lesbian & Gay Archives.
- Ban Barkawi, Rachel Savage (16 July 2020). "'Great first step' as Sudan lifts death penalty and flogging for gay sex". Reuters. Retrieved 17 July 2020.
- Louis Crompton (1976). "Homosexuals and the Death Penalty in Colonial America". Journal of Homosexuality. 1 (3): 277–293. doi:10.1300/j082v01n03_03. Retrieved 20 May 2016.
- "Homosexuality". www.utas.edu.au. Retrieved 2019-08-01.