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
Decision reversed by UK Tribunal (Immigration and Asylum Chamber) (12
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
Appellant Z v Secretary of State for the Home Department
of November 2011) (reversed bythe England and Wales Court of Appeal in
Z v Secretary of State for the Home Department
 EWCA Civ1578;  Imm A R 75.
Statutes made in Westminster, Anno 25 HEN VIII and Anno Dom. 1533 C A P.VI
The Punishment of theVice of Buggery.
Referred to as the Labouchère amendment named after its proposer.
Section 11. Criminal Law Amendment Act 1885, 48 & 49 VICT, Ch 69.
Report of the Committee on Homosexual Offences and Prostituion
Cmnd. 247 (1957).
Section 1(1) Sexual Offences Act 1967.