Talk:Criminalization of homosexuality/GA1

GA Review

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Reviewer: Danu Widjajanto (talk · contribs) 13:39, 24 January 2022 (UTC)

I am committing myself to reviewing this article, looking forward to reading it. Danu Widjajanto (talk) 13:39, 24 January 2022 (UTC)

Initial comments

• The title is a misnomer and should be changed to "criminalization of homosexual acts". None of the laws themselves criminalized homosexuality. Defenders of these laws often claimed that what they prohibited is the act itself, not the sexual orientation.
  • I can see how this might be seen as misleading, but I do feel that the current article title best reflects the article title criteria, in particular WP:COMMONNAME. As you can see from NGRAMS or Google Scholar results,[1][2] the current title is more used by reliable sources by about a factor of ten. (t · c) buidhe 22:16, 24 January 2022 (UTC)
• "Criminalization of homosexuality is the classification of some or all sexual acts between men, and less frequently between women, as a criminal offense and the prosecution of individuals for consensual sex with another person of the same gender." --> isn't it a bit repetitive? I think the first limb is already sufficient.
  • Done
• "The criminalization of homosexuality originated in Europe and spread elsewhere in the world via colonialism." --> this is an overly Eurocentric view. Criminalization is already mandated by the Hadith since the dawn of Islam, and Islamic countries nowadays criminalized homosexual acts by following the fiqh.
  • Reworded
• The "Ancient through early modern world" Section is also overly Eurocentric. There is no discussion of Islam at all, while all the official schools of jurisprudence of Islam regulate criminalization of liwat extensively (e.g. different punishments for active/passive participants, married/unmarried participants, extensive debate on whether it is the same with zina or not). I would like to suggest the following literatures to enrich this part:
  • Mithliyyun or Lutiyyun? Neo-Orthodoxy and the Debate on the Unlawfulness of Same-Sex Relations in Islam by Barbara Zollner
  • Before Homosexuality in the Arab‐Islamic World, 1500–1800 by Khaled El-Rouayheb.
    • Hi, thanks for the references! I agree that the section on Islamic law should be expanded, but I'm not sure about where to put it. I currently have it in the support and opposition section. I am also not sure about separating Islamic law from other Abrahamic religions, since Jewish law also criminalizes homosexuality and Christianity is often cited as a reason why it should be criminalized. (t · c) buidhe 22:16, 24 January 2022 (UTC)

      I think the solution would be to discuss how Sharia law is enforced by Islamic states (such as the Rashidun Caliphate or the Ottoman Empire) in the History part, so this separates it from the summary of the fiqh. Does this make sense? Danu Widjajanto (talk) 10:05, 25 January 2022 (UTC)

• "The Syro-Roman law book, influential in the Middle East, also contained penalties for homosexuality" --> influential in what way?
  • The source is not clear on this, but says it is part of the "Middle Eastern legal koine" and influenced later legal codes, especially in Lebanon

    "but says it is part of the "Middle Eastern legal koine" and influenced later legal codes, especially in Lebanon” --> could you kindly add this in the text so that it is clearer? Danu Widjajanto (talk) 10:05, 25 January 2022 (UTC)

• "Both the criminalization and decriminalization of homosexuality are European inventions" --> another Eurocentric claim. Aceh has a criminal law against homosexual acts not because of the Dutch, but because they enforced Sharia law.
  • Removed
• Additional note: I also would like to suggest the works of Professor Kees Waaldijk to expand this article. He introduced the term "semi-recriminalization" for countries who decriminalized but still imposed a higher age of consent (e.g. the Netherlands in 1911). See Kees Waaldijk, Civil Developments: Patterns for Reform in the Legal Position of Same-Sex Partners in Europe.

Overall, I believe the issue of Eurocentrism needs to be adressed first, since it is essential to fulfil the criterion "Broad in its coverage". I will proceed with an in-depth review once these are solved. Danu Widjajanto (talk) 14:06, 24 January 2022 (UTC)

In-depth review

Lede

• “such laws are not often enforced with regard to consensual same-sex conduct,” --> how about “laws criminalizing consensual same-sex conduct remain unenforced”? I omitted the “often” because you already wrote “Most of the time” before
• “in many cases founded on the condemnation of homosexuality by the Abrahamic religions (Judaism, Christianity, and Islam)” --> it’s also often based on “traditional values” or “culture”. See the work of Vincent Vleugels, Culture in the State Reporting Procedure of the UN Human Rights Treaty Bodies and you can use control find “homosex” to find interesting excerpts there, which can enrich the article further
• “the French colonial empire did not because the criminalization of homosexuality in France was abolished in 1791 during the French Revolution” --> add a reason why it was decriminalized

History

• Specify who is “Justinian”
• “especially after 1000” --> change to “especially after the year 1000”
• “but Ottoman criminal codes only called for fines” --> I suppose more can be said about the Ottomans from one of the sources I suggested above. It can be moved to its own paragraph to add more nuance
• “Henry VIII codified the prohibition of homosexuality,” --> specify who is Henry VIII and in which jurisdiction the prohibition is applied
• In the history part, you might want to add that there was a report that "Nezahualpilli, king of Tetzcoco, ordered the killing of those engaging in same sex eroticism while he, himself, was described by one source as an "hombre afeminado." His father, while king, reportedly had had his brother killed for the act." Source : Claassen & Ammon, Religion in Sixteenth-Century Mexico: A Guide to Aztec and Catholic Beliefs and Practices (CUP 2022), p. 292. This is just to further broaden the coverage
• “Many Middle Eastern countries, although former British colonies, did not have British law imposed because of more hands-off governance. Criminalization of homosexuality in these countries is not because of British influence.” --> mention the Sharia influence
• ‘some French colonies including Egypt, Tunisia, and Lebanon” --> I don’t think Egypt was a French colony…
• “By 1958, Interpol had noticed a trend towards legalizing homosexuality but maintaining a higher age of consent than for heterosexual relationships.” --> this is where you can add Waldijk’s reference to “semi-recriminalization”
• “partial criminalization of homosexuality (in Belgium, for the first time in 1965)” --> what does partial criminalization mean?
• “The 1981 case Dudgeon v. United Kingdom was the first time that a court called for the decriminalization of homosexuality” --> is it also the first time for a national court? Also specify that it’s by the European Court of Human Rights, which is a regional human rights court
• “Unlike earlier decriminalizations, repeal was not coincidental with the adoption of a new system of criminal law but rather targeted, beginning with Sweden in 1944” --> what do you mean by “targeted”?
• For the “Postcolonial developments” part, there should be an overview of countries in Asia, especially India.
• Also for the “Postcolonial developments”, it is highly relevant to discuss the Caribbean, because many countries there still criminalize homosexual acts, although in some it is often unenforced
• For the discussion of Africa, you can also add the fact that some countries also decriminalized, i.e. Mozambique and Botswana (although in the case of Botswana, it is through the courts)
• “In Uganda, proposals to deepen the criminalization of homosexuality such as the so-called "Kill the Gays" bill have gained international attention.” --> Brunei’s introduction of Sharia law also gained international attention, you should mention it in this section
• “In Egypt, there is no law against homosexuality, but gay and bisexual men, most notably the Cairo 52, are prosecuted under other laws” --> they are criminalized using a law against “debauchery” (fujur), but more on this will be discussed in my review for the Section “Scope of laws”

Scope of laws

• “Laws against homosexuality make some or all sex acts between people of the same sex a crime, often using terminology such as "crimes against nature", "buggery", or "unnatural offenses"” --> specify that that’s only applicable for laws that are inherited from British colonialism
• To further broaden the scope so that it’s not overly focused to the British variety, it would be interesting to add Egypt’s example here. As already mentioned, Egypt criminalizes homosexual acts by considering it a fujur. There is a court ruling which established fujur as including homosexual acts, even though the entire law itself is actually aimed against prostitution. For more on this, I suggest Tommaso Virgili, Islam, Constitutional Law and Human Rights, which has a specific section on the existing law in Egypt
• We should also add the variety of “dead letter law”. The example is Singapore, where they still have a criminal code against homosexual acts from the British and refused to decriminalize it, but the police also has not enforced it for long. I know you have mentioned that criminalization is often unenforced and that this is already bordering on ‘enforcement’, but I think this warrants specific mention because it is an example of the law still being maintained de jure because of its symbolic function.
• It would also be interesting to add that Nigeria specifically criminalized same-sex marriage
• It would also be good to put examples of criminal laws inspired by the Sharia, such as in Aceh or Pakistan, or punishment against homosexual acts that is directly derived from the Sharia without specific codification (such as in Saudi Arabia)
• It should also be mentioned that criminalization may be imposed regionally (e.g. Northern Ireland in the past at the time of Dudgeon v the UK, Aceh in Indonesia, Northern Nigeria)
• “Laws may not target both partners in the sex act equally.” --> this sentence is unclear

Enforcement

• “Laws criminalizing homosexuality are inherently difficult to enforce, because they concern acts by consenting individuals done in private.” --> add the Islamic example that requires four witnesses. In fact, Brunei often defended itself by referring to this ‘difficulty’
• “at least nine states” --> mention an example
• “This practice is considered a form of torture” --> by whom? Certainly not by the transgressing states
• “In Nazi Germany, torture was regularly used to extract confessions from men suspected of being homosexual.” --> it’s weird to see a single sentence hanging alone here, it should be merged with another paragraph
• In Virgili’s book, he also discussed how Egyptian and Tunisian police used ‘evidence’ to convict homosexuals, from condoms to physical examination. I think it’s worth mentioning the use of condoms as evidence here, as it has public health repercussions (people are less likely to use condoms if these can become evidence of a 'crime')

Support and opposition

• “According to the Maliki, Shafi'i, Hanbali, and Ja'afari schools any penetrative sex outside of marriage or a man with his female slave is zina, a more serious crime” --> it would be good to clarify that Hanafi, Maliki, Shafi’i and Hanbali are major Sunni schools of jurisprudence, while the Ja'afari is the major school of jurisprudence in Shia Iran
• For the paragraph that starts with “In Africa, one of the primary narratives cited in favour…”, isn’t it more appropriate to move this to the History part? It discusses more the dynamics in Africa instead of arguments of why homosexuality should be criminalized. If you want to discuss how homosexuality is often defended by referring to protection of morals, health or the rights of others, Vleugels’ book has an excellent overview of these arguments by states
• “A prominent reason cited for criminalizing homosexuality is the belief that it could be spread as a result of "seduction" or "recruitment"” --> you should also add that it’s particularly underpinned by the unfounded fear that criminalization can stop gays from ‘recruiting’ children
• What’s lacking in “Arguments for” is the unfounded claim that criminalization is ‘needed’ to protect public health (‘to stop HIV from spreading’)
• Overall, for the Section “Arguments for”, you can add interesting examples of arguments from Vleugels’ book so that the section becomes more engaging
• “the harm principle sets limits on what conduct can be considered criminal, if it harms people others than those performing the action.” --> you mean “if it does not harm people”?
• Are there “Arguments against” from non-Western authors? This can greatly broaden the scope of the article

Human rights

• What is missing here is which rights are violated by criminalizing homosexual acts. There should be a brief overview, preferably by summarizing each case law
• A case law missing here is Gareth Henry and Simone Carline Edwards v. Jamaica (Inter-American Commission on Human Rights)

I apologize if my review is too long or if I put too many suggestions to add some content. I'm just hoping that these can help to further improve the article so that one day it can become a featured article. Thank you for your kind attention. Danu Widjajanto (talk) 10:05, 25 January 2022 (UTC)

• Thanks so much for your detailed comments! It may take me a while to work through everything. (t · c) buidhe 05:17, 27 January 2022 (UTC)