Home » Decriminalising Consensual Same-sex Sexual Relations: Amendments Versus Repeal

Decriminalising Consensual Same-sex Sexual Relations: Amendments Versus Repeal

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Photo courtesy of Lanka News Web

In a major development in the human rights arena, SLPP parliamentarian and lawyer Premanath C. Dolawatte handed over a private member’s bill to President Ranil Wickremesinghe seeking to amend laws that marginalise the Lesbian, Gay, Bisexual, Transgender, Intersex and Queer/Questioning (LGBTIQ) community in Sri Lanka. It was handed over to President Wickremesinghe on August 24 but is yet to be debated in parliament.

Currently, statistics by Human Dignity Trust (HDT) show that Sri Lanka is one of 70 countries that criminalises private, consensual, same-sex sexual activity. Due to the country’s colonial past, same sex sexual relations between consenting adults are criminalised by Sections 365 and 365A of the Penal Code, which states that “carnal intercourse against the order of nature” (in other words, any type of sex that is considered unnatural, widely understood to apply to sexual acts between same-sex individuals) and “acts of gross indecency” are criminal offences punishable by law, carrying a sentence of up to 10 years. In 1995, human rights activists attempted to repeal the Penal Code but instead of decriminalising same-sex sexual relations between consenting adults, the amendment substituted the word males in the original legal text with the gender neutral term people, thereby criminalising same-sex sexual acts between women as well.

Mr. Dolawatte’s bill seeks to amend the Sections 365 and 365A as follows:

“In Article 365 of the Principal Statute, the said Article is hereby amended by deleting the words “any man, woman or.”

“In section 365A of the Principal Statute, after the words “publicly or privately or with another person,” insert “under any of the following descriptions, namely:

without the consent of the other person, With or without the consent of the other person when that person is under 16 years of age: With the consent of the other person while on such other person was in lawful of unlawful detention or where that consent has been obtained, by use of force, or intimidation, or threat of detention or by putting such other person in fear of death or hurt; With the consent of the other person where such consent has been obtained at a time the other person was of unsound mind or was in a state of intoxication induced by alcohol or drugs.”

“The intent of the legislature in enacting this legislation must be considered as amending the provisions that makes sexual orientation a punishable offence.”

The President’s Media Division (PMD), issuing a statement on the bill, said, “The society of this country has an extremely backward notion regarding the LGBTQ+ community and as a result, not only in daily life, but even in government and law enforcement agencies, this community has been subjected to various forms of violence, oppression and harassment.”

It added that, “Punishment of individuals based on sexual orientation and sexual identification was spread throughout the world by colonial legal systems in the Victorian era. But in modern psychiatry, this is not considered a crime or a perversion. Also, developed countries have worked to amend the laws that penalise this community and limit their rights.”

Reactions to the bill

The response to the news on the bill was mixed. While some LGBTIQ individuals and activists hailed the proposed amendments as a progressive and positive move, others were more skeptical.

Issuing a statement a group of LGBTIQ rights activists said, “We welcome the Private Member’s Bill by Premnath Dolawatte MP introduced [on] August 24, 2022, to decriminalise same sex sexual activity between consenting adults by amending sections 365 and 365A of the Penal Code. However, we note that the Bill comes amid a number of disturbing developments that directly impact LGBTQI+ Sri Lankans.” They pointed out that the Wickremesinghe regime is engaged in a systematic suppression against the protesters who led the Aragalaya. They went on to note that the use of the Prevention of Terrorism Act (PTA) to arrest and detain protesters is especially alarming. They questioned whether the move to amend Sections 365 and 365A was simply an attempt to “whitewash the government’s repression.” As such, they urged the government to “pass this Bill urgently within the minimum possible time period under Parliamentary procedure.”

Amending rather than repealing

Meanwhile, concerns have also been raised over amending rather than repealing these anti-LGBTIQ laws.

On a positive note, the bill seeks to decriminalise same-sex sexual activity by effectively removing the sodomy provision in Article 365A and making Article 365A’s gross indecency provision to non-consensual acts only. From a pragmatic point of view, it seems to be a first step towards broader changes to anti-LGBTIQ laws if the political will to ensure equal rights to the LGBTIQ community is displayed.

However, as broader sexual offences provisions in Sri Lanka’s Penal Code are outdated and imperfect, decriminalising same-sex sexual relationships between consenting adults through amendments to legislation is an imperfect process that leaves room for loopholes in the law. For instance, Section 365B that discusses grave sexual abuse is gendered and only mentions acts committed for sexual gratification, ignores the myriad other reasons for sexual abuse – power, punishment, humiliation, etc. This is just one example of how making slight amendments to laws can leave gaps when looking at the overall legislation. This leaves room for interpretation of the law that can be harmful to the LGBTIQ community.

This problem is further exacerbated when it comes to the amendments to Article 365A that retain the vague terminology of “acts of gross indecency” without defining the specifics of such acts. As human rights activist, Ambika Satkunanathan, pointed out in one of her tweets, “making minor amendments to laws that violate human rights, does little to address problem.”

It cannot also be ignored that, in the past, Sections 365 and 365A have been used arbitrarily and overwhelmingly against the LGBTIQ community despite the law not criminalising same-sex sexual relations among consenting adults or expressions of diverse and non-heteronormative sexual orientations and gender identities outright. This is due to the colonial legacy of using these archaic laws as sodomy laws during the British occupation in Sri Lanka. There are recorded instances of individuals being arrested by the police under Sections 365 and 365A for simply using birth control. These individuals are then subject to various mental and physical examinations including anal and vaginal probes to “prove their homosexuality.” In this context, it is questionable whether these sections will stop being associated with sodomy laws and stop being arbitrarily used against the LGBTIQ community even with the proposed amendments.

While Mr. Dolawatte should be commended for his attempt to decriminalise anti-LGBTIQ laws, these laws should be repealed rather than amended, thereby leaving no room for ambiguous interpretations of the laws penalising LGBTIQ individuals while ensuring their basic human rights.

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