Sodomy laws
Criminal prohibitions of homosexual acts have been, over time, the most dramatic examples of laws that discriminate on the basis of sexual orientation. For a few centuries, criminal laws, religious in origin, prohibited male-male sexual acts in all parts of Christian Europe. From the end of the eighteenth century, France — and the other European countries which subsequently adopted the Napoleonic penal code — decriminalised homosexual acts. As a result, areas of Asia colonised by France, the Netherlands, Portugal or Spain had no criminal prohibitions, whereas areas colonised by Britain had prohibitions. After the unification of Germany in 1871, that country also had a national criminal prohibition (Sanders 2009). German laws and German-language medical and sexological writings that pathologised homosexual relations were very influential in parts of Asia in the late nineteenth and early twentieth centuries (McLelland 2005: 18).
In China, a prohibition of male-male anal intercourse is found in ‘a supplementary set of statutes applied by analogy’ in the Jianjing reign of the Ming Dynasty, 1522—67. This was superceded by a substatute in 1679, and in 1734 by a substatute that covered consensual male-male sodomy incidentally in longer provisions against male rape (Sommer 2000: 119, 121, 124). The Qing legal code, drafted in 1907 and adopted in 1912, abolished offences by analogy. This was a modernising reform that, incidentally, had the effect of ending the application of the earlier antihomosexual laws. In the subsequent Republican and Communist periods there was no specific prohibition of same-sex sexual acts (Kang 2009: 86, 94,148). While a Western-influenced pathologisation of homosexual desire characterised Chinese society in the 1920s and 1930s (Rofel 2007: 24), there was no criminal prohibition.
Hong Kong inherited an anti-homosexual criminal law from Britain that was not repealed until 1991, before reversion to China. Mongolia had a prohibition, probably copied from the Soviet Union. It was repealed in 2002. Japan had a prohibition from 1873 to 1881, enacted with reference to the Qing and German laws, but this was later removed in line with the French penal code (Pflugfelder 1999: 161—70). With these four exceptions, the East Asian region under discussion has had no history of criminal prohibitions of same-sex sexual acts, although other laws, on ‘hooliganism’ for example, have been used against homosexuals.
The United Kingdom decriminalised male homosexual acts in 1967 for England and Wales. When the Hong Kong Legislative Council repealed its anti-homosexual criminal law in 1991, it copied the UK reform. Twenty-one became the age of consent for homosexual acts, not 16 as provided for heterosexual acts. In 2006 the Hong Kong courts struck down the unequal age of consent in their decision in Leung v Secretary of Justice, making 16 the age of consent for both homosexual and heterosexual activity. In the subsequent case of Secretary of Justice v Yau Yuk Lung, Hong Kong courts repeated the same analysis to end unequal definitions of public space for heterosexual and homosexual activity.
In 2011 the Constitutional Court of South Korea upheld a prohibition of homosexual acts between members of the military. The National Human Rights Commission had submitted a brief to the court arguing that the provision was unconstitutional on the basis that it violated rights to privacy and equality. The court upheld the provision as supporting military morale and national security. Of some concern is the ruling of the Court that the anti-discrimination wording in the constitution did not extend to ‘sexual orientation’ (Cho 2012; ICJ 2011: 133).