Capital punishment for homosexuality

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Capital punishment as a criminal punishment for homosexuality has been implemented by a number of countries in their history. It currently remains a legal punishment in several countries and regions, most of which have sharia-based criminal laws except for Uganda. Gay people also face extrajudicial killings by state and non-state actors, as in Chechnya in 2019, though it is denied by the Chechen authorities and Russia.

Imposition of the death penalty for homosexuality may be classified as judicial murder of gay people, which has been analyzed as a form of genocide.[1]

  Executions for sex between consenting adults of the same sex practiced
  Death penalty on the books, but not a legal certainty[2]

In current state laws[edit]

Further information: LGBT rights by country or territory, LGBT in Islam, Capital punishment in Islam, and Sharia § Islamization

All nations excluding Uganda currently having capital punishment as a potential penalty for homosexual activity base those laws on interpretations of Islamic teachings.[3] As of March 2023, the following jurisdictions prescribe the death penalty for homosexuality:

  • Afghanistan Afghanistan. A Penal Code enacted in February 2018 explicitly criminalised same-sex sexual conduct under the Islamic Republic of Afghanistan.[4] Sources cited by the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGBTIA) indicated that there was a "broad consensus amongst scholars that execution was the appropriate punishment if homosexual acts could be proven".[5]: 429  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 have potentially applied the death penalty for a number of reasons. No known death sentences for homosexuality occurred after the end of Taliban rule in 2001.[6][7] However, following the Taliban takeover of Afghanistan in 2021, fears of reprisal including death for those suspected of homosexuality were renewed.[8] A Taliban spokesman told Reuters in 2021: "LGBT... That's against our Sharia law".[9] A Taliban judge said that "For homosexuals, there can only be two punishments: either stoning, or he must stand behind a wall that will fall down on him".[10][11]
  • Brunei Brunei. Sharia Penal Code, Prescribes death by stoning for gay men (temporarily in abeyance),[12][13][14][15] up to 10 years in prison, whippings, fines, and deportation.
  • Iran Iran.[16] Male-male anal 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; for a first offence, 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. Under the combination of articles 136 and 238, a woman convicted for the fourth time of the crime of musaheqeh (tribadism) is to be executed; there is no death penalty for non-genital-genital female-female sexual conduct.[17] Though the grounds for execution in Iran are difficult to track, there is evidence that several gay men were executed in 2005–2006, 2016 and in 2022 mostly on alleged charges of rape.[18][19]
  • Mauritania Mauritania.[16] According to a 1984 law, Muslim men can be stoned for engaging in homosexual sex, though no executions have occurred so far.[20] The country has observed a moratorium on the execution of the death penalty since 1987.[5]: 347 
  • Nigeria Nigeria. Several northern states have adopted sharia-based criminal laws, though no executions are known.[5]: 359 
  • Qatar Qatar. Same-sex sexual activity is prohibited under the Penal Code 2004, which criminalises acts of "sodomy" and "sexual intercourse" between people of the same sex. These provisions carry a maximum penalty of seven years' imprisonment. Both men and women are criminalised under this law. Also, the death penalty is applicable only to Muslims, for certain types of extramarital sex regardless of the gender of the participants. However, there is no evidence that the death penalty has been applied for consensual same-sex relations in private taking place between adults.[6]
  • Saudi Arabia Saudi Arabia. Does not have codified criminal laws.[16] 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.[20] There are unconfirmed reports that two cross-dressing Pakistani nationals were killed by Saudi authorities in 2017, which Saudi officials have denied.[16] Verified executions occurred in 2019.[21][22] Homosexuality in Saudi Arabia is proven by four eyewitnesses who have seen the penetration, or a self confession; if these conditions are not met they can not be stoned but can be given discretionary punishments like lashing and jails.[23]
  • Somalia Somalia. Insurgents and Somali officials have imposed sharia-based law in several southern states.[16][20]
  • Uganda Uganda. In March 2023, Ugandan lawmakers passed a bill, prescribing the death penalty for those who have homosexual sex with someone over the age of 75 or with a disabled person, as well as for those who are convicted of homosexuality more than once.[24][25] The bill was signed into law on 29 May.
  • United Arab Emirates United Arab Emirates. Article 354 of the Federal Penal Code states: "shall be sentenced to the death penalty, whoever used coercion in having sexual intercourse with a female or sodomy with a male."[26] In addition, same-sex relations fall under the traditional Sharia category of Zina. Some courts have gone beyond codified laws and passed sentences of stoning or flogging, thus making same-sex relationships liable to the death penalty.[27][28]
  • Yemen Yemen. Punishment for homosexuality in Yemen can originate from the codified penal code, or from people seeking to enforce traditional Islamic morality. Article 264 of the national penal code prohibits private consensual homosexual acts between adult men. The stipulated punishment in the law for unmarried men is 100 lashes and up to a year in prison. The law stipulates that married men convicted of homosexuality are to be put to death by stoning.[29] Article 268 of the national penal code prohibits private consensual homosexual acts between adult women. The law stipulates that premeditated acts of lesbianism are punished with up to three years in prison.[29] In addition to the penal code, punishment for homosexuality can originate from people seeking to enforce traditional morality within their own family or for the broader society. In vigilante cases such as this, the punishment for homosexuality is oftentimes death.[30]

Extrajudicial killings[edit]

Further information: Social cleansing, Honor killing, Significant acts of violence against LGBT people, and Persecution of gay and bisexual men by ISIL

In some regions, gay people have been murdered by Islamist militias and terrorist groups, such as Islamic State of Iraq and the Levant in parts of Iraq, Libya, and Syria, the Houthi movement in Yemen and Hamas in the Gaza Strip.[16][31][32]

In February 2016 Hamas,[33][34] which controls the Palestinian National Authority and rules Gaza, executed by firing squad Mahmoud Ishtiwi—one of the group's leading commanders—for homosexual activity.[35][36]

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.[37] Of 100 men, who authorities detained on suspicion of being gay or bisexual, three have reportedly died after being held in what human rights groups and eyewitnesses have called concentration camps.[38][39]

Extrajudicial killings have occurred in Iraq.[40] Cases include abductions, torture, rape and murder by vigilante mobs, millitia and perpetrators. LGBT people living in fear of their lives, campaigners Human Rights Watch (HRW) and IraQueer found. HRW's LGBT rights researcher Rasha Younes said: "LGBT Iraqis live in constant fear of being hunted down and killed by armed groups with impunity, as well as arrest and violence by Iraqi police, making their lives unliveable."[41]

Report of vigilante executions, attacks, beatings, and torture[42][43][44][45] have been reported in heavily Christian and Muslim regions of Africa, in countries such as Algeria,[46] Uganda,[47] South Africa,[48] Kenya,[49] Liberia, Ghana, Cameroon, and Senegal. In these countries, police turn a blind eye[43][50] or even are complicit in the anti-gay violence.[51]

History[edit]

See also: List of people executed for homosexuality in Europe

Australia[edit]

Australian states and territories first passed laws against homosexuality during the colonial era, and nineteenth-century colonial parliaments retained provisions which made homosexual activity a capital offence until 1861.[52] Most jurisdictions removed capital punishment as a sentence for homosexual activity, although in Victoria it remained as such when committed while also inflicting bodily harm or to a person younger than the age of fourteen until 1949.[52] The last person arrested for homosexual sex in Australia was a man in 1984 in Tasmania.[53] The last part of Australia to legalise consensual homosexual sex between adults was Tasmania in 1997. In 2017, same-sex marriage was legalised by the Australian government.[54][55]

Of the seven men in Australian history known to have been executed for sodomy, six cases involved the sexual abuse of minors; only one of the seven cases was for consensual acts between adults.[56][57] In that sole 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.[58] Joseph Fogg was hanged at Hobart on 24 February 1830 for an "unnamed crime", also described in one source as an "abominable crime".[59][60] The exact nature of his crime is unclear; while likely a same-sex sexual offence given the labels applied ('unnamed', 'abominable'), it is uncertain whether it was for an adult consensual act, same-sex rape, or abuse of a minor.[61]

Germany[edit]

Main article: Persecution of homosexuals in Nazi Germany § Death penalty

During the period of Nazi Germany from 1933 to 1945, homosexual men were persecuted with thousands being imprisoned in concentration camps (and eventually extermination camps) by the Nazi regime. Roughly 5,000–15,000 were sent to the concentration camps, with the death rate being estimated to be as high as 60%. Homosexuals in the camps suffered an unusual degree of cruelty by their captors, including being used as target practice on shooting ranges.[62][63][64]

In a 1937 speech, Himmler argued that SS men who had served sentences for homosexuality should be transferred to a concentration camp and shot when trying to escape. This policy was never implemented, and some SS men were acquitted on homosexuality charges despite evidence against them.[65] A few death sentences against SS men for homosexual acts were pronounced between 1937 and 1940.[66] In a speech on 18 August 1941, Hitler argued that homosexuality should be combatted throughout Nazi organizations and the military. In particular, homosexuality in the Hitler Youth must be punished by death in order to protect youth from being turned into homosexuals, however the Hitler Youth never implemented this policy.[67]

After learning of Hitler's remark, Himmler decided that the SS must be at least as tough on homosexuality and drafted a decree mandating the death penalty to any member of the SS and police found guilty of engaging in a homosexual act. Hitler signed the decree on 15 November 1941 on the condition that there be absolutely no publicity, worried that such a harsh decree might lend fuel to left-wing propaganda that homosexuality was especially prevalent in Germany. Since it could not be published in the SS newspaper, the decree was communicated to SS men one-on-one by their superiors. However, this was not done consistently and many arrested men asserted that they had no knowledge of the decree.[67]

Even after the decree, only a few death sentences were pronounced.[68][69] Himmler often commuted the sentence especially if he thought that the accused was not a committed homosexual, but had suffered a one-time mistake (particularly while drunk). Many of those whose sentence was commuted were sent to serve in the Dirlewanger Brigade, a penal unit on the Eastern Front, where most were killed.[68] After late 1943, because of military losses, it was the policy to recycle SS men convicted of homosexuality into the Wehrmacht.[70]

The 1933 law on habitual criminals also allowed for execution after the third conviction.[71] On 4 September 1941 a new law allowed the execution of dangerous sex offenders or habitual criminals when "the protection of the Volksgemeinschaft or the need for just atonement require it". This law enabled authorities to pronounce death sentences against homosexuals, and is known to have been employed in four cases in Austria.[72][73] In 1943, Wilhelm Keitel, head of the Oberkommando der Wehrmacht, authorized the death penalty for soldiers convicted of homosexuality in "particularly serious cases".[74][75] Only a few executions of homosexual Wehrmacht soldiers are known, mostly in conjunction with other charges, especially desertion.[74] Some homosexuals were executed at Nazi euthanasia centers, such as Bernburg or Meseritz-Obrawalde. It is difficult to estimate the number of homosexuals directly killed during the Nazi era.[76]

United Kingdom[edit]

From 1533, under the Buggery Act 1533, capital felony for any person to "commit the detestable and abominable vice of buggery with mankind or beast", was enacted, repealed and re-enacted several times by the Crown, until it was reinstated permanently in 1563. Homosexual activity remained a capital offence until 1861.[77] The last execution took place on 27 November 1835 when James Pratt and John Smith were hanged outside Newgate Prison in London.

United States[edit]

See also: Sodomy laws in the United States

During the colonial era of American history, the various European nations which established colonies in the Americas brought their pre-existing laws against homosexuality (which included capital punishment) with them. The establishment of the United States after their victory in the Revolutionary War did not bring about any changes in the status of capital punishment as a sentence for being convicted of homosexual behavior. Beginning in the 19th century, the various state legislatures passed legislation which ended the status of capital punishment being used for those who were convicted of homosexual behavior. 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".[77]

Sudan[edit]

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 same-sex sexual activity altogether.[78]

References[edit]

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  12. ^ Brunei implements stoning to death under new anti-LGBT laws
  13. ^ "Brunei backs down on gay sex death penalty after international backlash". CNN. 6 May 2019. Retrieved 6 May 2019.
  14. ^ Brunei won't impose death penalty for gay sex – but it's still illegal
  15. ^ Office of International Religious Freedom; United States Department of State (June 2, 2022). 2021 Report on International Religious Freedom: Brunei (Report). United States Department of State. A 2019 de facto moratorium on the death penalty remained in place.
    Kelleher, Patrick (17 May 2022). "11 countries where LGBTQ+ people still face death penalty urged to abolish it". PinkNews. According to Human Dignity Trust, the death penalty is implemented in Iran, Northern Nigeria, Saudi Arabia, Somalia and Yemen, and remains a "legal possibility" in Afghanistan, Brunei, Mauritania, Pakistan, Qatar and UAE.
    Yee, Claudia (31 August 2021). "What explains Brunei's expansion of the death penalty in 2019?". ELEOS. Monash University.
    Patto, Kasthuri (29 October 2021). "ASEAN Summit Should Draw Attention to Brunei's Appalling Human Rights Record". The Diplomat: Know the Asia-Pacific. The moratorium is still in place, but the human rights situation in Brunei remains appalling.

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  22. ^ "Man executed in Saudi Arabia admitted to gay sex in "invented" confession". 29 April 2019.
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  27. ^ Lucas Ramón Mendos (2019). "State-Sponsored Homophobia" (PDF). International Lesbian, Gay, Bisexual, Trans and Intersex association (13th ed.). p. 479. Retrieved 7 February 2020. However, through the Sharia code the death penalty applies to same-sex sexual relations through the offense of Zina, which applies to sexual relations outside of the marriage of any sort. Courts have gone beyond codified laws and imposed harsher sentences of stoning and flogging for Zina crimes.
  28. ^ Foundation, Thomson Reuters. "Stoning- where is it legal?". news.trust.org. {{cite web}}: |first= has generic name (help)CS1 maint: url-status (link)
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  57. ^ Those six cases being:
    1. John Mead, hanged at Sydney on 29 November 1836 for the forcible sodomy of a ten year old boy
    2. William Gibson, hanged at Launceston on 31 January 1859 for sodomy of a ten year old boy
    3. Hendrick Whitnalder, hanged at Hobart on 20 February 1863 for sodomy of a fourteen year old boy
    4. John Kelly, hanged at Beechworth on 4 May 1867 for sodomy of an eighteen-month-old boy
    5. Thomas Ross, hanged at Launceston on 30 January 1861 for an "unnatural crime" against a "little boy" of unknown age
    6. Dennis Collins, hanged at Launceston on 11 August 1863 for an "unnatural crime" against a seven year old boy
  58. ^ "Unfit for Publication press cuttings list" (PDF). Australian Lesbian & Gay Archives.
  59. ^ "Executions". Colonial Times. Hobart. 26 February 1830. p. 3. Retrieved 9 March 2017. This morning, the awful sentence of the law was carried into execution upon four other persons, viz.-John Jones and Samuel Killen, for sheep-stealing; Joseph Fogg, for a nameless offence, and Thomas Goodwin, for cutting and maiming with intent the kill.
  60. ^ "Convict Records: Joseph Fogg". convictrecords.com.au. Retrieved 31 July 2022.
  61. ^ Coad, David (2002). Gender trouble down under: Australian masculinities. Valenciennes: Presses universitaires de Valenciennes. p. 34. ISBN 9782905725301.
  62. ^ Burleigh, Michael (1991). The Racial State: Germany, 1933–1945. Wippermann, Wolfgang, Mazal Holocaust Collection. Cambridge [England]: Cambridge University Press. ISBN 0521391148. OCLC 22597244.
  63. ^ Giles, Geoffrey J (2001). Social Outsiders in Nazi Germany. Princeton, New Jersey: Princeton University Press. p. 240.
  64. ^ Plant, Richard (2013). The Pink Triangle: The Nazi War Against Homosexuals. New York: Henry Holt and Company. ISBN 9781429936934. OCLC 872608428.
  65. ^ Giles 2010, p. 393.
  66. ^ Lorenz 2018, p. 15.
  67. ^ a b Giles 2010, pp. 393–394.
  68. ^ a b Giles 2010, p. 394.
  69. ^ Longerich 2011, p. 239.
  70. ^ Schlagdenhauffen 2018, p. 33.
  71. ^ Lorenz 2018, pp. 12–13.
  72. ^ Scheck 2020, p. 422.
  73. ^ Lorenz 2018, p. 13.
  74. ^ a b Storkmann 2021, p. 28.
  75. ^ Lorenz 2018, pp. 14, 16.
  76. ^ Lorenz 2018, p. 11.
  77. ^ a b Crompton, Louis (1976). "Homosexuals and the Death Penalty in Colonial America". Journal of Homosexuality. 1 (3): 277–293. doi:10.1300/j082v01n03_03. PMID 798008. Retrieved 20 May 2016.
  78. ^ 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.

Bibliography[edit]

  • Giles, Geoffrey J. (2010). "The Persecution of Gay Men and Lesbians During the Third Reich". The Routledge History of the Holocaust. Routledge. pp. 385–396. ISBN 978-0-203-83744-3.
  • Longerich, Peter (2011). Heinrich Himmler: A Life. Oxford University Press. ISBN 978-0-19-161705-8.
  • Lorenz, Gottfried (2018). Todesurteile und Hinrichtungen wegen homosexueller Handlungen während der NS-Zeit: Mann-männliche Internetprostitution. Und andere Texte zur Geschichte und zur Situation der Homosexuellen in Deutschland [Death sentences and executions for homosexual acts during the Nazi era, male-male internet prostitution, and other texts on the history and situation of homosexuals in Germany] (in German). LIT Verlag. ISBN 978-3-643-13992-4.
  • Scheck, Raffael (2020). "The Danger of "Moral Sabotage": Western Prisoners of War on Trial for Homosexual Relations in Nazi Germany". Journal of the History of Sexuality. 29 (3): 418–446. doi:10.7560/JHS29305.
  • Schlagdenhauffen, Régis (2018). "Queer life in Europe during the Second World War" and "Punishing homosexual men and women under the Third Reich". Queer in Europe during the Second World War. Council of Europe. pp. 7–20, 21–38. ISBN 978-92-871-8464-1. Archived from the original on 17 February 2022.
  • Storkmann, Klaus (2021). Tabu und Toleranz: Der Umgang mit Homosexualität in der Bundeswehr 1955 bis 2000 [Taboo and Tolerance: Homosexuality and the Bundeswehr 1955 to 2000] (in German). De Gruyter. ISBN 978-3-11-073290-0.
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