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Speak out on gay criminalisation

13 September 2013

The C of E should condemn anti-gay laws as a matter of justice, says Jonathan Cooper


Victim: the funeral of David Kato, the gay-rights activist murdered in 2011

Victim: the funeral of David Kato, the gay-rights activist murdered in 2011

The Church of England was a champion of the decriminalisation of male homosexuality in the UK in the past. Church committees and the Archbishops of Canterbury spoke in favour of the repeal of laws governing buggery and gross indecency.

But now the Church as a body is silent about decriminalisation, even in those countries of the Commonwealth which still criminalise same-sex sexual conduct, and in which the Anglican Communion has a powerful presence.

In 1954, the C of E's Moral Welfare Council published The Problem of Homosexuality: An interim report, unexpectedly calling for the repeal of laws that criminalised gay men, and thereby ending more than 400 years of the Church's falling in line with the persecution of consensual same-sex sexual relations between adults.

This document, which fed into the Wolfenden report of 1957, recognised the place of the state in regulating society, but it also acknowledged that the rights of homosexual men were being violated - today, we would call it persecution - and in the name of justice and humanity, the Church called for a change in the law.

More than 80 jurisdictions around the world still criminalise same-sex sexual relations between consenting adults, and this leads to serious and systemic violations of human rights: they destroy lives, and cultivate impunity. Forty-two of these jurisdictions are members of the Commonwealth, where anti-gay laws are a sad residue of a distinctively British colonial past.

It is not hard to find the source of common law jurisdictions' anti-gay legislation: in 1533, Henry VIII introduced what has become known as the Buggery Act, which was to replace canon-law sanctions, and to shift the jurisdiction of such offences from ecclesiastical courts to civil ones. Through Parliament, the Crown placed the regulation of private conduct under the supreme power of the state rather than under the Church, which had until then been a (somewhat liberal) guardian of public morals.

The Buggery Act, give or take a few amendments, remained on the statute books until the passing of the Sexual Offences Act in 1967; this partially removed criminal sanctions for same-sex sexual relations between two consenting adults in private. The then Archbishop of Canterbury, Dr Michael Ramsey, actively supported the Bill on its passage through Parliament, incurring the disdain of its vociferous opponents in the House of Lords.

Since those days, the Church of England has been disturbingly quiet on the subject. It has consistently fallen short of an outright condemnation of criminalisation in the Commonwealth, and the consequential persecution that flows from this.

Recently, some individuals have been unequivocal in condemning the criminalisation of LGBT people: in a House of Lords debate, the Bishop of Leicester, the Rt Revd Timothy Stevens, called on all countries to end criminalisation. He was supported by the Bishop of Newcastle, the Rt Revd Martin Wharton.

Yet the official C of E position appears obscure. This cannot be attributed simply to the structure of the Anglican Communion. Statements from Lambeth Palace and Church House, Westminster, tend to conflate all things relating to sexuality. The Church's position on gay marriage, gay clergy, and gay bishops should have no bearing on the serious and systemic human-rights violation that is the criminalisation of gay sexual identity.

To give him his due, when he was Archbishop of Canterbury, Lord Williams spoke of how criminalisation creates an unlevel playing field; he condemned harsh criminal sanctions, although he does not seem to have denounced criminalisation per se.

The present Archbishop of Canterbury, in his address to the General Synod in July, attacked homophobic bullying in schools, and pointed with horror to the executions of gay men in countries such as Iran. He admitted that ordinary people in Britain were increasingly intolerant of homophobic behaviour: they "look at us [i.e. the Church of England], and see what they do not like".

He mentioned the need to demonstrate "the lavish love of God to all of us". But it is still not sufficient for the Church to oppose the death penalty for consensual homosexual offences, which in itself could imply that criminalisation could be acceptable.

To compare same-sex marriage to the Holocaust, as Lord Carey, a previous Archbishop of Canterbury, has done, is certainly of no help to persecuted LGBT people across the Commonwealth.

In a recent challenge to homophobic laws in Belize, for example, the Anglican bishop there joined other Churches to intervene against attempts to decriminalise.

Despite the C of E's record of support for decriminalisation in England, it is now silent about other jurisdictions. What is it about the quality of a gay man in England that makes him more worthy of the Church's benediction than a gay Ugandan or Belizean?

THE criminal law has no business regulating private sexual conduct between adults. Sixty years ago, the Church of England recognised this when it called for decriminalisation in the UK. What the main institutions of the Anglican Communion say, or fail to say, matters, because across the world millions listen.

The consequences of criminalisation can never be underestimated. It causes misery to all of those affected, cloaking people's identity in illegality, and reducing it to sexual acts. Families are shattered. Murder, violence, and discrimination are tolerated.

The effect of criminalisation is to put people who have sex with people of the same gender beyond the protection of the law, affecting the entire community. Impunity flourishes. Criminalisation is also costly for the states that maintain it. It has a significant impact on public health, preventing states' creating effective health-education programmes and delivering health care to those who need it.

Yet the Church remains silent. It must show leadership, and make an unequivocal and universal statement calling for worldwide decriminalisation now.

Jonathan Cooper is a human-rights lawyer and the chief executive of the Human Dignity Trust.

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