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From Sodomy to Safety? The case for defining persecution to include unenforced criminalisation of same-sex conduct

From Sodomy to Safety? The case for defining persecution to include unenforced criminalisation of same-sex conduct

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Published by: LGBT Asylum News on Sep 11, 2011
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From Sodomy to Safety?
 
The case for defining persecution to include unenforced criminalisation of same-sex conduct  
S Chelvan 
1 |Page 
From sodomy to safety?: the case for defining persecution to include unenforced criminalisation of same-sex conduct.
1
S. Chelvan, Barrister No5 Chambers, UK *
 
2
 Abstract:
 Asylum duty-bearers have concentrated for too long on the ‘privacy’ of the bedroom as providing a safe haven from where Lesbian, Gay and Bisexual asylum seekers can conduct their ‘sex’ lives, without fear of harm, even where such conduct is criminalised. Thisworking paper seeks to address this misconception head on, drawing the decision-maker outside the bedroom, out of the front door and into the ‘outside world’, where expression of identity, or identification of agency, is governed by the threat of harm flowing directly out of a fear of arrest, detention, torture and in some cases, execution. Criminalisation is the great enforcer, whether actual criminalisation of same-sex conduct is actually enforced. Thiscommon narrative in the life of LGB human beings exists even in nations of the Global North. In countries where there exists no effective state protection, then the ability to be ‘open and live freely’ is directly affected, and this results in the ‘fear’ of persecution. This paper drives force in this notion from cases in Italy, Austria and the United Kingdom, drawing on the2004 Refugee Qualification Directive as a primary source of European Law, to enableharmonisation of this issue on a European level.
B A C K G R O U N D:
“[C]riminalisation reinforces a general climate of homophobia (presumablyaccompanied by transphobia), which enables State agents as well as non-State agents to persecute or harm LGB(TI)s with impunity. In short, criminalisation makes LGBs intooutlaws, at risk of persecution or serious harm at any time.”
Fleeing Homophobia Report 2011
3
 
1
 
This is a working paper and should not be cited without prior permission of the author. The author identifieshis copyright.
2
 
Barrister of the Inner Temple (Call, 1999): Major Scholar, LLM (Harv): Kennedy Memorial Trust Scholar,BSc (SocSci) (First Class) Politics and Law (Soton), PhD Candidate in Law (Part-Time), King’s CollegeLondon (commenced 2008, upgraded 2010, thesis due 2014): Professor Robert Wintemute (KCL) (FirstSupervisor) Professor Jenni Millbank (University of Technology Sydney – Second Supervisor). The author hasbeen a Trustee of the UK Lesbian and Gay Immigration Group since 2005, and since 2010 has held the positionof Vice-Chair.
3
 
Jansen and Spijkerboer “
Fleeing Homophobia: Asylum Claims Related to Sexual Orientation and Gender  Identity in Europe”
(September 2011), § 2.1, p. 26.
 
From Sodomy to Safety? 
76 countries are marked red in the ILGA 2011 Map
4
, highlighting the countries of the worldwhere there exists laws which criminalise same-sex conduct. These countries are defined byILGA as countries where ‘persecution’ exists. Nevertheless, since
F v UK 
5
Force in the paper’s central theme has been explored in 2005 by Jenni Millbank 
 
in 2004,European countries have in general not accepted that countries where there exists unenforcedcriminal laws result in successful refugee claims from Lesbian, Gay and Bisexual (‘LGB’)asylum applicants, until now.
6
within thecontext of the UK’s approach up to 2003. Millbank (2005) states:
7
“Criminalizing of sex is a very obvious and clearly state-sanctioned form of  harm against gay and lesbian people. … Yet decision-makers in Britain have demonstrated a marked reluctance to view criminalization of gay sex per se as persecutory.” 
Since the UK Supreme Court’s July 2010 judgment in
 HJ (Iran) and HT (Cameroon) v.Secretary of State for the Home Department 
[2010] UKSC 31; [2011] 1 A.C. 596, LGBindividuals have been given a right to live “openly and freely” without the threat of harm [§55], on the same basis as their straight counterparts [§ 78]. Domestically, this also includesthe Court’s acceptance that governments need to mobilise to tackle such harm [§ 3].Internationally, the UN Human Rights Committee in March 2011
8
The paper explores the development of the recent jurisprudence on this point in the exampleof the United Kingdom, Austria and Italy, referring specifically to the 2004 QualificationDirective’s, has declared suchcriminal laws to end [§ 10].
9
definition of persecution including a discriminatory legal measure (Article 9 (2)(b)). The paper will also refer to the case country example of Uganda, where the authorvisited in July 2011
The paper will propose that the conference adopts an approach which accepts thatcriminalisation does amount to persecution, as it results in persecution., in order to show how criminalisation of same-sex conduct, evenwithout implementation results in persecution, be it through state or third party actors. Thiswill also provide force to the paper’s inclusion within the ‘sexual orientation: act or identity’discourse, as it is a fixation with the ‘act’ which results in the persecution of the identity.
4
 
2011 ILGA State-Sponsored Homophobia Report (see specifically
 Lesbian and Gay Rights in the World 
rd
September 2011).
5
 
 Application 17341/03
(22
nd
June 2004)
6
 
Millbank, Jenni
 A Preoccupation with Perversion: The British Response to Refugee Claims on the Basis of Sexual Orientation 1989-2003,
Social and Legal Studies Vol. 14, pp. 115-138, 2005.
7
 
 Ibid 
at 125.
8
 
“Ending Acts of Violence and Related Human Rights Violations Based On Sexual Orientation and Gender  Identity.“
 
(22 March 2011)
 
UN Human Rights Council.
9
 
Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of thirdcountry nationals or stateless persons as refugees or as persons who otherwise need international protection andthe content of the protection granted
(
Official Journal L 304 , 30/09/2004 P. 0012 – 0023).
 
10
 
International Association on the Study of Forced Migration (IASFM 13), Kampala, Uganda, 3
rd
to 6
th
July2011.
 
The case for defining persecution to include unenforced criminalisation of same-sex conduct  
S Chelvan 3 |Page 
T H E S O D O M Y F I X A T I O N:
When did you first engage in buggery with your boyfriend?
 Question posed by UK Immigration Judge, First-Tier Tribunal (Immigrationand Asylum Chamber) to gay man from Uzbekistan, Summer 2010
The real mischief, as we are well aware, that is likely to be caused by allowing his appeal is by encouraging a flood of fraudulent Zimbabwean (and no doubt other) asylum-seekers posing as sodomites (to correct the spelling of the Marquess of Queensberry's famous phrase).
John Freeman, Chair, UK Immigration Appeal Tribunal, 2001
The United Kingdom is clearly responsible for the exportation of criminalisation of initiallymale same-sex conduct throughout her British Empire. The
Vice of Buggery
in 1533 resultedin
 
an Act of Parliament which codified what was earlier Church law, making anal intercoursebetween men a criminal, capital offence in England 
. This was a necessary moral vein towhich England’s Henry VIII could show that despite his lack of sexual mores, he could showthat there were still black lines relating to sex which could not be crossed. The unequal legalstatus of gay men, would be extended in 1885 where the Criminal Law (Amendment) Actcame into force, and enlarged the range of offences to include ‘gross indecency’ whichencompassed any sexual act between men which did not include buggery
. This was thelegislation which enabled Oscar Wilde’s conviction for gross indecency, with two years hardlabour
An unequal age of consent, as compared to straight men and women, continued until 2003with the Sexual Offences Act, which equalised the age of consent to 16 (bar exceptions forstraight and same-sex conduct where one of the parties holds a position of responsibility tothe other, ie teacher). Legal and social landmarks between these dates include the WolfendenReport on Homosexuality and Prostitution in 1957following his infamous trails in 1895, where he referred to the ‘love that dare notspeak it’s name’.
, which recommended for the first timethat there should be an age of consent of 21; the 1967 Sexual Offences Act
 
11
 
Decision reversed by UK Tribunal (Immigration and Asylum Chamber) (12
th
July 2011) (unreported).Finding of Immigration Judge on sexual identity held to be perverse. Asylum appeal allowed.
, which actuallyimplemented that recommendation, the Criminal Justice and Public Order Act of 1994, which
12
 
 Appellant Z v Secretary of State for the Home Department 
(01TH02634) (8
th
of November 2011) (reversed bythe England and Wales Court of Appeal in
 Z v Secretary of State for the Home Department 
[2004] EWCA Civ1578; [2005] Imm A R 75.
13
 
Statutes made in Westminster, Anno 25 HEN VIII and Anno Dom. 1533 C A P.VI
The Punishment of theVice of Buggery.
14
Referred to as the Labouchère amendment named after its proposer.
15
Section 11. Criminal Law Amendment Act 1885, 48 & 49 VICT, Ch 69.
16
 
 Report of the Committee on Homosexual Offences and Prostituion
Cmnd. 247 (1957).
17
 
Section 1(1) Sexual Offences Act 1967.

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