The influence of Roman laws regarding same-sex acts on homophobia in Africa
Susan Haskins*
Lecturer, Department of Ancient Languages, University of Pretoria, South Africa
ABSTRACT
]]> In recent years there has been a surge of homophobia across Africa. Among the arguments of this discourse against homosexuality is that homosexuality is a pattern of behaviour, not an orientation, that such behaviour is an import from the West and, as such, unAfrican. Paradoxically, this discourse also argues that homosexuality is against religion, where the religion referred to is Christianity, another Western import. However, one of the most dangerous manifestations of homophobia has been attempts not just to socially condemn, but to legally prosecute homosexual acts. Such legal persecution, especially in some of the former British colonies of sub-Saharan Africa, has been possible due to the presence within their penal codes of laws against 'unnatural' sexual acts. Many commentators have noted that these laws are themselves a remnant of colonial occupation and as such do not communicate African values. Nevertheless, they are being used to help justify homophobia in Africa. However, these commentators have not fully realised the implications of the origin of the laws on unnatural sexual acts. These laws can be traced back not just to Britain, but to the first codified laws regulating same-sex acts in the West, namely, the laws of the ancient Romans. This study examines Roman laws on same-sex acts and the consequent establishment of a legal concept of sexuality. It then illustrates how, due to the influence of these laws on the formulation of Victorian laws on unnatural acts, the Roman legal concept of sexuality underlies the laws which exist in many former British colonies. It also briefly outlines the effect of these laws on present-day sub-Saharan Africa. Perhaps understanding the ancient, alien socio-historical context of the legal concept of sexuality behind the Roman laws may assist in subverting the law argument of the African homophobic discourse.Key words: homophobia; homosexuality; sub-Saharan Africa; Roman laws; ancient Roman sexuality
1 Introduction
In 2010, two Malawians, Steven Monjeza and Tiwonge Chimbalanga, classified as men by the Malawian legal system, were sentenced to 14 years in prison with hard labour for conducting a traditional engagement ceremony.1 This example of homophobia2 is just one from a growing trend in recent years, where the prospect of the law being used to persecute homosexuals in parts of sub-Saharan Africa is becoming an increasing threat.3 The West's reaction to the judgment and similar legal manoeuvres in Africa has been outrage.4 The legal persecution of homosexuals conjures images of racism and gender discrimination.5 European countries and the United States (US) have threatened to withhold aid to African countries not supporting gay rights.6 However, this stance could be considered to be hypocritical.7 Homosexuality and most of the main justifications for homophobia in sub-Saharan Africa, namely, Christian morality8 and the laws, are actually imports brought in centuries before by the colonial Western powers.9 The most systematic, pervasive and firmly-established colonial laws against same-sex acts were imposed by the British and can be found as remnants in the penal codes of many of their former colonies.10 Even though commentators have noted the colonial nature of these laws,11 many Africans now call these conservative, Victorian forms of morality their own, and resent what they perceive as Western interference.12 But this is not the end of the story. The origin of the laws used against same-sex acts is actually far older than British colonialism. They can be traced all the way to ancient Rome. Thus, the ancient, non-religious concept of sexuality, which lay beneath the Roman laws, is being used to justify homophobia and persecute homosexuals in a modern, African, Christian context. Perhaps creating an awareness of the older, alien underpinnings to the colonial laws will undermine the legal justification for homophobia in Africa, where other arguments have not, without being an imposition from the West.
2 Perception of 'homosexuality' in Africa
In order to understand how and why the law is being deployed by the homophobic discourse in parts of sub-Saharan Africa, it is necessary to know the nature, and to be aware of the context, of this discourse. First, it is important to realise that homosexuality does not have a uniform or concrete meaning. Homosexuality is a fairly modern term. It was coined in the nineteenth century as part of the growing European field of medical and psychological studies to identify people, mostly men, whose erotic attraction to others of the same sex13 was believed to constitute an innate perversion, or pathology.14 This was a radical change from the previous conceptualisation of sex between men as sodomy, which was seen as a 'temporary aberration',15 not a life-long orientation. As Foucault points out, once provided with an identity and a terminology, 'homosexuality began to speak in its own behalf'.16 Certain men, and later women, used the discourse of homosexuality to justify a valid identity and existence for themselves. The term 'gay', and the language surrounding it, began to be used in the US as part of the counterculture movements of the 1960s and rights struggles of the 1970s, such as those against racism and sexism, as a means of claiming the identity of homosexuality and recasting it in an affirming light.17 Consequently, for many in the Western world homosexuality, or the more popular adjective 'gay', has come to refer to an intrinsic sexual orientation in a person towards one of their own sex.18
The idea of homosexuality as an inborn, life-long orientation is very much a product of the West,19 and it has been transported to Africa mainly through the Western media and aid organisations.20 While several African communities do have identities for men who do not conform to the Western hetero-normative model, no African culture has ever had a concept of sexual orientation.21 The response to such a concept has been multifaceted. Some have accepted it and, where appropriate, taken on homosexuality as an identity.22 However, many Africans cannot, or choose not to, comprehend the concept of a biological sexual orientation.23 Some have seen same-sex acts and those who commit them as simply being re-identified with new, foreign-language terms. A homosexual is therefore a person who commits same-sex acts, not a person with an orientation.24 Others understand the concept of an orientation but refuse to believe it, just as the conservative sexual discourse still does in Western countries. David Bahati, the anti-gay Ugandan Member of Parliament (MP), said that '[i]t's not an inborn orientation, it's a behaviour learnt - and it can be unlearnt'.25 This refusal to accept a homosexual identity and instead to place emphasis on the behaviour of people means that many Africans believe that same-sex acts are a matter of conscious choice:26 Human beings are considered able to choose what behaviour to enact, therefore either those who commit same-sex acts are misguided and can be stopped through counselling,27 or they are wilfully committing the acts and must be stopped through punishment.28
]]>3 Factors contributing to homophobia in Africa
Considering that there is no evidence to suggest that, before colonialism, African cultures systematically condemned and prosecuted same-sex acts or those with an alternative gender identity,29 the recent surge of homophobia across sub-Saharan Africa30 could be seen as surprising. Homophobia, a term coined from the word 'homosexual', refers generally to prejudice against same-sex acts and the people who practise them. This prejudice manifests itself in Africa as 'exclusions, taunting, name-calling and discrimination' as well as 'murder',31 perpetrated not just by individuals but, in some countries, by the media, the state, religious leaders, and group demonstrations and violence.32 Scholars have suggested several factors that they believe are the main driving forces behind this phenomenon. Both Human Rights Watch with the International Gay and Lesbian Human Rights Commission and Epprecht attribute growing homophobia in Southern Africa to polarising rhetoric by some African leaders who are attempting to provide a bulwark to their regimes in the face of the seemingly insurmountable HIV epidemic, economic decline and socio-political inequalities brought about by incomplete democratisation in former European colonies. Condemnation and vilification of homosexuality provides these African leaders with a scapegoat for all society's problems.33 This rhetoric resonates with people experiencing poverty, and a breakdown in health and education systems.34 Nigerian leaders have also used this rhetoric to unite Christians and Muslims in a common hatred, especially prior to elections.35 Concomitantly, Tamale notes that, in Uganda, by tightly controlling same-sex acts and silencing the individuals and groups who practise them, the state sustains its power by preventing these individuals and groups from organising and fighting for their rights.36
Msibi suggests that homophobia is the result of attempts by Africans to try and redefine their identities in a modern world fuelled by Western culture.37 African cultures, which are predominantly patriarchal, create an identity for men which expects them to be dominant in society and fulfil certain gender roles.38 However, men, especially in urban centres, are finding themselves exposed to a contradictory world view based on gender equality. In addition, to prevent the spread of HIV, new modes of sexual and social interaction between people, mainly men and women, are being prioritised, both by African activists and Western aid agencies.39 Women are being encouraged to take control of their sexual well-being and men are expected to respect a woman's physical integrity. The traditional means for males to self-identify are thus being threatened. Many men are responding by privileging 'traditional' gender roles. However, as Epprecht points out, 'traditional' gender roles are actually an internalisation of Western gender roles.40 Nevertheless, these men are reacting with violence to any perceived deviations from the supposed norm. Gay men undermine the traditional dominant male role by choosing another means of self-identification, and lesbians seem to avoid male influence in their lives altogether.41 This privileging of traditional, cultural gender roles means that many Africans, especially African leaders, are suggesting that same-sex desire is unAfrican,42 and did not exist here until it was imported from the West.43 This allows these African leaders to blame the West for their societies' ills, and makes their people hostile to Western calls for their leaders to support gay rights, as they believe the West is trying to encourage homosexuality, and thereby perverting and endangering African children.44
Paradoxically, Epprecht and Msibi point out that, while vilifying the West for introducing and encouraging same-sex desire on the continent, many Africans are also claiming that same-sex desire is against their religion.45 Despite being a colonial import, the most popular religion in sub-Saharan Africa is Christianity. It is currently one of the main groups supporting homophobia. Evangelical church leaders from the US are visiting parts of Africa, such as Rwanda, Uganda and Kenya, and working together with local evangelists and, in some cases, African leaders themselves, are preaching an anti-gay message and conservative sexual values.46 These US church leaders are followed by related church groups which are entering African countries as aid organisations and are using their platform of trying to prevent the spread of HIV through changing patterns of behaviour, to further advocate conservative Christian beliefs in respect of sex and relationships.47 Evangelical Christians tend to hold the belief that there are no such people as homosexuals, only heterosexual people with a homosexual problem. In a radically-changing world, people tend to gravitate to fundamentalist religious movements that claim to have all the answers.48 These movements also promise salvation to a select few and therefore create an 'us and them' mentality. Certain African leaders have incorporated this mind-set into their rhetoric about the protection of African culture and children from Western interference. 'Us' therefore often becomes independent, righteous, heterosexual Africans against an interfering, perverted, neo-colonialist, Western 'them',49 even when 'them' is referring to fellow Africans and countrymen.50 These sentiments all promote intolerance and as such they help to justify and intensify homophobic reactions in Africa.
Politics, adverse social circumstances, culture and religion are probably all contributing factors to homophobia in Africa to different degrees, depending on the circumstances of individual countries,51 but the main reason the judgment in Malawi occurred was because there were laws which made the prosecution of same-sex acts possible.52 Britain imposed legislation on its African colonies to regulate what was considered to be immoral sexual behaviour. Although it changed its own laws concerning same-sex acts, most colonies had already achieved independence by this time and, as such, their systems of law either petrified or moved in a different direction without any influence from later reforms in Britain.53 The laws Britain left behind are contributing to homophobia due to the concept of sexuality which underlies them. However, while the laws may be a remnant of colonial occupation, their origin and the concept of sexuality which underpins them can be traced back to ancient Rome.
4 Roman origins of the laws on same-sex acts
The first Roman law regulating sexuality that in any wav impacted on same-sex relations seems to be the Lex Scantinia,54 which was probably passed in the second or first century BC.55 No text of this law survives, so evidence of its existence has come from other nonlegal, literary sources.56 Needless to say, the purpose of the authors who mentioned the law was not to define or explain its provisions. With such scanty evidence, the interpretations of modern scholars as to the exact provisions of the law have been widely divergent.57 Earlier scholars have suggested in passing that the law banned all male same-sex activity.58 However, according to the extensive evidence on male same-sex desire and relations, both romantic and physical, this interpretation is simply not feasible.59 In ancient Roman society gender, the socially-constructed notion of behaviours, expectations, roles, representations and values that are applied to people by any given society based on whether they are male or female,60 was dependent, not on biological sex, but mainly on social status.61 The normative gender for males was that of the vir, the high-class male whose social position allowed him to penetrate others,62 namely, women, children and slaves, both male and female. There was no prejudice about what the object of penetration and pleasure should be. However, as those who were acceptable objects were considered to be in a subordinate position to the vir, a high-class male who chose, or was seduced into allowing, penetration was automatically perceived as belonging to the subordinate class, and there was strong social prejudice against the actions of such a man.63
More recent scholars, therefore, argue that the law punished men taking the passive role, and/or that it was put in place to protect highborn youths from pederasty,64 and the loss of social status associated with being perceived as a potentially passive adult man. Williams gives the latest and most comprehensive interpretation which incorporates these other interpretations. He bases this on the legal definition of stuprum and on the provisions of the Lex Julia on adultery, passed in 18 BC. Williams postulates that the Lex Scantinia did not make a distinction between crimes committed against men or women.65 Instead, it was a formalisation of the 'traditional Roman [social] sanctions'66 against stuprum, a crime in which a man committed sexual acts with any free-born woman outside marriage or free-born child, male or female.67 In addition, from examining the Lex Julia on adultery, a law which attempted to regulate this one specific form of stuprum, he believes that, just as the Lex Julia punished both partners in adultery,68 the Lex Scantinia could also have punished both the perpetrator of the act and the man who acted inappropriately by allowing himself to be penetrated.69
]]> All these interpretations suggest that the Lex Scantinia and, indeed, all laws on stuprum, established a legal concept of sexuality based on the belief that some sexual acts were appropriate or inappropriate depending on the person who performed them. Appropriate or inappropriate was usually determined by status and gender roles. Free, male citizens should not take on sexual roles that placed them in the position of a woman or subordinate. Women of high status should not move outside their gender roles of chaste, child-producer, by taking a lover. The concern of the laws, therefore, was the interplay between status, roles in the sex act, gender roles and the sex act itself. However, at this time, there was no crime consisting specifically and exclusively of male same-sex acts, nor was there a legal identity based on sexual orientation.The Lex Julia on adultery itself later came to have an effect on the regulating of male same-sex acts. The original wording seems to have provided not only for the crime of adultery in particular, but also stuprum in general. Although adultery was considered to apply to married women, while stuprum could also be committed with a widow, unmarried girl or a male youth, the sources suggest that the general thrust of this law was towards protecting females as commodities. However, in the third century AD the conversion of the Emperor Constantine to Christianity led to a transformation of the Roman Empire towards a Christian ideology. An interrelationship developed between the leadership of church and state. Religious beliefs and state policy became one, guided to a great extent by the emperors themselves,70 under the influence of the Bible, early church fathers and canons passed at church councils.71 This led towards a more conservative stance to sexual acts, especially those outside marriage and which were not for the purposes of procreation,72 such as sexual intercourse between two males. The existence of the word stuprum in the Lex Julia allowed much later jurists to broaden its interpretation to include acts against free-born males.73 Nevertheless, the concept of sexuality behind the laws on stuprum did not change.74 The added interpretation specified a crime which consisted of a male of high status being forced or coerced into an act in which he played the passive sexual role, and consequently moved outside of his gender roles.
Despite this growing conservatism, only a handful of edicts and laws were passed in the next three centuries in the Roman and later Byzantine Empires that in any way regulated male same-sex acts. The Theodosian Code 9.7.3 records a constitution published by Constantius and Constans in 342 AD which seems to be legislating on matters of same-sex marriage, as it refers to a crime 'when a man is married in the manner of a woman'.75 However, both Bailey and Cantarella argue that the word nubere ('to marry') is not intended to refer to one man actually marryinq another, but instead to a male who takes the passive role in sex.76Nubere was most often used of women as it referred to the custom of women veiling themselves to indicate marriage. The word was also sometimes used to describe non-marital sexual relations with implausible marriage objects, such as prostitutes or passive males.77 A similar law to this was published in 438 and is recorded in the Theodosian Code 9.7.6.78 This law refers to the 'disgraceful' custom some men have of acting in a passive role, like a woman, during sexual intercourse. In both cases a man taking the passive role, that of the woman, in sexual intercourse is the object of this law, rather than all men engaging in same-sex acts. Although these men are referred to as seeming to be no different from women; they are not identified as women, but are noted as taking on the role of women. Lastly, these laws seem to be directed at men who take the passive role on a regular basis. While this would suggest the recognition of a legal identity of some men according to their sexual orientation, this is not in fact the case. Code 9.7.3 states that men who 'marry' in such a way are infames ('shameful' or 'disreputable'). Although being infamis identified a person, this identification was based on any act which rendered them shameful, including committing crimes or taking part in shameful activities such as acting or prostitution.79 Code 9.7.6 recognises a sexual preference, but this is not necessarily for sexual intercourse with other males, but simply for playing the passive part. In both these laws, then, men who play the passive role are given a specific identification but in each case it is based on the act in which they take on sexual roles that lead to them flouting gender roles.
The last of the Roman laws on male same-sex acts can be found in the works sponsored by Justinian. In 533 Justinian claimed that the Lex Julia punished 'even those who dared to exercise their shameful lust with men'.80 Novel 77 from 538 includes same-sex acts as one of many blasphemous acts. Justinian enjoins men to refrain from such acts as they have brought down natural disasters.81 Novel 141 from 544, in a similar vein, also speaks of acts and includes the belief that such acts are a matter of choice and men can stop them if they so choose.82 There seems to be a move away from an underlying concept of sexuality in the law based on status, sex and gender roles, although there is still an understanding of sexuality as a series of acts, not an identity. However, in Novel 77 Justinian introduces into law a term from the New Testament, Romans 1.26, possibly influenced by its reiteration in the early church fathers. He writes of men acting contra naturam ('contrary to nature').83 What are we supposed to understand by 'nature' in this context? Considering that these edicts do not institute a new crime, but instead encourage the enforcement of the existing laws on same-sex acts, I believe the use of the word 'nature' is imbuing sex roles and gender roles, as understood by Justinian, with an essentialist force.
Throughout the legislation from ancient Rome and the Byzantine Empire, a definite legal concept of sexuality emerges. Sexuality is conceived of mainly as roles and acts, and the law legislates against those roles and acts which are believed to be wrong, even if the exact definition of these changes over time. Importantly, there is no concept in Roman law of anyone having an identity based on sexual orientation. The closest the laws seem to come is acknowledging habitual offenders.
5 Roman laws in Africa
Once the laws on same-sex acts as laid down by the Roman/Byzantine Empires were established, very few changes appear to have occurred. These laws entered England through church, or canon, law. Canon law was an amalgam of 'the Bible, the writings of the church fathers, Justinian's codification, the Corpus Iuris Civilis, the canons of church councils and the papal decretals',84 and was, according to De Ru, 'basically Roman law as modified to meet the needs of the medieval church'.85 It held sway in England over moral and religious matters such as marriage, sex, heresy and sorcery.86 However, there was some separation of church and state. In the case of same-sex acts, ecclesiastical courts could judge people, but if the court wanted them to be punished with the applicable penalty, death, they had to hand them over to the state. The state could hold its own tribunal to assess the guilt of the party and could act independently of the church in bringing such men to trial, judging and sentencing them.87 The degree to which the laws were implemented by church and state in the medieval period fluctuated and over the centuries Christian writers and law makers felt it necessary to reiterate and refine them.88 However, the attitude of the church did not change substantially.89 In the sixteenth century, the English king, Henry VIII, split from the Roman Catholic Church which led to many laws, including those against same-sex acts, being recodified as secular laws.90 The penalties and the implementation of these laws also fluctuated over time.91 Nonetheless, the basic laws, and the concept behind them, survived until the nineteenth century.
In the mid-nineteenth century Britain updated and, where necessary, changed their laws for implementation in the colonies. The resulting penal code was later implemented across Asia and Africa.92 The sections on same-sex acts can still be found in the Penal Codes of Malawi, Uganda, The Gambia, Nigeria, Kenya and many other former British colonies in Africa.93 The laws used to prosecute Monjeza and Chimbalanga in Malawi provide an excellent example:
]]> Penal Code Cap 7:01 Laws of Malawi 24]]> The concept of sexuality underlying section 153 and, indeed, some of the wording, are the direct result of the Roman laws on same-sex acts. Firstly, similar to the Roman laws on stuprum, the law is interested in any and all sexual acts considered to be against the moral interest of the law makers, regardless of gender, but it also places a special emphasis on acts between males. Section 156 specifically legislates against, notjust acts involving carnal knowledge, but any 'act of gross indecency'94 between two men. Notably, neither Roman nor British colonial law overtly acknowledges female same-sex acts. Secondly, these laws are also legislating against the acts people commit, not the people themselves.95 'Permits' in section 153(c) suggests that once again these acts are considered to be a matter of choice, not an intrinsic part of a certain type of man. Lastly, the wording 'against the order of nature' is Justinian's contra naturam ('contrary to nature').96Section 153 - Unnatural offences
Anyone who -
(a) has carnal knowledge of any person against the order of nature; or
(b) has carnal knowledge of any animal; or
(c) permits a male person to have carnal knowledge of him or her against the order of natureshall be guilty of a felony and shall be liable to imprisonment for fourteen years, with or without corporal punishment.
Section 156 - Indecent practices between males
Any male who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, shall be guilty of a felony and shall be liable to imprisonment for five years, with or without corporal punishment.
'Against the order of nature' and 'act of gross indecency' are not defined by the law. This means that the judge was left to interpret whatever act he disapproved of as 'against the order of nature' or amounting to 'gross indecency'.97 Consequently, it can be seen that both concepts are based on the acts of the people to be punished and the assumption that those acts contravene the judge's understanding of sexual and gender roles. The essentialist word 'nature' is once again being used to refer to socially-defined gender and sex roles. Although status is not an issue, the legal concept of sexuality in former British colonies in Africa is still based on the Roman belief in the importance of the interaction between sexual acts, sexual roles and gender roles. This perfectly coincides with current homophobic mentalities in Africa.
6 Consequences of the Roman sexuality in Africa
The result of this set of circumstances is that these African states have a tool which allows them not only to prosecute homosexuals, namely, those who engage in same-sex acts, but to legally justify denying rights and services to them. On the grounds that it would encourage criminal activity, states with a homophobic agenda are not sponsoring counselling for homosexuals on how to prevent the spread of HIV.98 The men themselves are often uneducated as to the means of HIV transmission with many believing that anal sex is safe. The stigma against homosexuality means that many men are also in sexual relationships with women and are therefore spreading the disease through having multiple partners. Homosexuals also find it difficult to access condoms and condom-safe, water-based lubricants. Some clinics have even turned away homosexuals who wished to receive treatment.99 Needless to say, homosexuals are also denied protection under the law from religious and societal persecution. Violence against homosexuals, openly fuelled by the media and prominent political and religious figures, is rife.100 Many homosexuals are being driven into hiding, further alienating them from education and treatment.101 The Roman concept of sexuality which underpins their laws is therefore perpetuating, and being used to justify, a state-sponsored homophobic agenda in parts of sub-Saharan Africa.
7 Conclusion
The concept of sexuality which governs the laws of most former British colonies in sub-Saharan Africa is derived from a culture that was the basis for much Western thought, a culture that did not consider male same-sex acts, as such, to be worth regulating and which was only interested in protecting the bodily integrity of males of a certain status. The concept also had no basis in religion, and is therefore no more Christian than a concept of sexuality based on identity and sexual orientation. Yet, this is the state tool being used to persecute homosexuality and perpetuate homophobia in sub-Saharan Africa. Understanding this may bring success in undermining the laws where other arguments, based solely on the Western origin of the laws, have failed. The British may have been invaders, but their morals coincide with the current moral conservatism of their former colonies in Africa. Africans may resent colonialism, but they have always taken what they believed to be useful from Western culture and found ways to integrate it with African concepts. Perhaps if the basis for these laws as non-Christian, alien and accepting of same-sex acts is elucidated, the entrenched colonial legal framework may be destabilised, and the African homophobic discourse may not be so accepting of the absolute natural rightness of these laws and be a little more reluctant to make use of them. But even if this is unlikely, knowing the issues behind the origin of these laws adds an important dimension to understanding the origins of homophobia in parts of sub-Saharan Africa.
]]> * BA BA (Hons) MA (Natal), PhD (KwaZulu-Natal); susan.haskins@up.ac.za. This article began as a conference paper presented at both The reception of Rome and the construction of Western homosexual identities conference, Durham University, 17-18 April 2012, and The 30th biennial conference of the Classical Association of South Africa. Reception, University of the Free State, 8-11 July 2013. I would like to thank conference participants, members of Gender Research at the University of Pretoria (GR@UP) and the anonymous Journal reviewers for their invaluable feedback. Any remaining errors are my own.