notes from fallow

sim 2

Botswana’s case to decriminalize homosexuality—Letsweletse Motshidiemang and LEGABIBO (as amicus) v The Attorney General (High Court Civil Case no MAHGB-000591-16)—intrigues me. Here’s how the lawyer and academic Gosego Rockfall Lekgowe describes the case:

The applicant was a 24-year-old student of the University of Botswana studying English (African Languages and Literature) who identified as a homosexual. The applicant contended that sections 164(a), 164(c) and 165 of the Penal Code proscribe him from enjoying and engaging in sexual intercourse with a man per anaus. According to him, the provisions prohibited him from expressing the greatest emotion of love through the act of enjoying sexual relations with a consenting male to whom he is sexually attracted. In his application, he argued that his fundamental right to equality, privacy, liberty and dignity were contravened by the law.

As outlined in the ruling, the applicant claimed the sections of the penal code “proscribe and prohibit him from exercising, enjoying and engaging in sexual intercourse per anum; which as a homosexual is his only mode of sexual intercourse.”

This claim about anal intercourse—that it is the applicant’s “only mode of sexual intercourse” is repeated several times in the ruling.

28. As a homosexual, and as long as the said provisions remain extant, he is prohibited from having anal intercourse and to that extent, he is forced to live in secrecy, under a shadow and not to openly and publicly declare his sexual affection and attraction to men or to solicit men he is interested in, for fear that the actions would be construed to be an attempt to engage in carnal knowledge against the order of nature.

134. It is the amicus’s case that the impugned sections [of the penal code] are also discriminatory, in effect, (indirect discrimination). In amplification, learned counsel Mr. Rantao has submitted that sexual intercourse per anum, is the applicant’s only mode of sexual expression and thus denying him his only mode of sexual expression is discriminatory in that the heterosexuals are permitted the right to sexual expression in a way that is preferred by them, and such equates to indirect discrimination founded on sexual orientation.

136. In answer thereto, the Attorney General has submitted that the applicant is a “cry baby” and that he is free to engage in sexual activity as long as it is not sexual intercourse per anus.

144. Anal sexual penetration and any attempt thereof are prohibited and criminalised by Sections 164(a), (c) and 165 of the Penal Code. Effectively, the applicant’s right to choose a sexual partner is abridged. His only mode of sexual expression is anal penetration; but the impugned provisions force him to engage in private sexual expression not according to his orientation; but according to statutory dictates. Without any equivocation, his liberty has been emasculated and abridged.

164. Anal sexual intercourse is, generally, associated with gay men. According to the applicant, as a homosexual man, anal sexual intercourse is his only mode of sexual gratification and expression.

169. An interrogation of the impugned provisions, in my view, reveals that the said provisions, have a substantially greater impact on the applicant as a homosexual, who engages only in anal sexual penetration; than it does on heterosexual men and women. That fact that anal intercourse is the only means available to the applicant, is dispositive. Denying the applicant the right to sexual expression, in the only way natural and available to him, even if that way is denied to all, remains discriminatory in effect, when heterosexuals are permitted the right to sexual expression, in a way that is natural to them.

And so on.

While the case was ostensibly decided on stronger legal grounds—the rights to privacy, liberty, dignity, and non-discrimination—it stands out in decriminalization cases for its focus on sexual pleasure.

To see this more clearly, let me look, briefly, at Lawrence v. Texas 539 U.S. 558 (2003).

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Here is Justice Kennedy’s summary of the facts:

In Houston, Texas, officers of the Harris County Police Department were dispatched to a private residence in response to a reported weapons disturbance. They entered an apartment where one of the petitioners, John Geddes Lawrence, resided. The right of the police to enter does not seem to have been questioned. The officers observed Lawrence and another man, Tyron Garner, engaging in a sexual act. The two petitioners were arrested, held in custody overnight, and charged and convicted before a Justice of the Peace.

The complaints described their crime as “deviate sexual intercourse, namely anal sex, with a member of the same sex (man).”

It’s worth noting that Lawrence v. Texas begins as a criminal case whereas Motshidiemang v. Attorney General does not.

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Justice Kennedy writes for the majority:

We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution.

The question of sex comes up, but is quickly dismissed:

To say that the issue in [Bowers v. Hardwick, 478 U.S. 186 (1986), an earlier, failed attempt to decriminalize sodomy] was simply the right to engage in certain sexual conduct demeans the claim of the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.

As Kennedy clarifies, “When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.” I guess #LoveWins.

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Based on a quick skim (and ctrl+f), the term anal sex appears once in Lawrence v. Texas. In his dissent, which I can only skim because I dislike the man so much, Justice Scalia uses “homosexual acts” several times. And “sodomy” appears to be the most common term in the ruling and dissent. Per Scalia, the ruling decriminalizing sodomy does not establish a “fundamental right to sodomy”; it sediments rights to privacy, even as Justice O’Connor writes, “Texas argues . . . that the sodomy law does not discriminate against homosexual persons. Instead, the State maintains that the law discriminates only against homosexual conduct. While it is true that the law applies only to conduct, the conduct being targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas’s sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class.” We might detect more than a hint of anxiety in the repetition of the word “conduct” in this short excerpt—5 times.

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Again, let me emphasize: Lawrence v. Texas starts as a criminal case and Motshidiemang v. Attorney General does not.

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How do we read the terrain established in both cases? I am especially interested in how these cases map erotic terrain.

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Given that contemporary anti-sodomy laws are widely interpreted as laws against anal sex, it’s gratifying to read Motshidiemang v. Attorney General foreground this point and insist on the right to have anal sex. Foregrounding a sex act does not in any way “demean” the individuals who engage in that act.

But is this risky terrain?

If the state understands “homosexual acts” as primarily, if not exclusively, anal sex, then does that leave homosexuals who engage in a whole other range of sex acts vulnerable to state surveillance and punishment? Will we have to go to court to decriminalize every single act that can be performed by same-sex individuals? I am being absurd, of course. But I am wary of tethering one specific act to a specific population. The case, of course, did not simply decriminalize anal sex for the applicant; it decriminalized it for all who engage.

While I chuckle at the prudishness of the U.S. justices, I wonder if their references to “conduct” and “homosexual acts” provide a broader terrain for thinking with the wide range of sex practices performed by same-sex individuals. (I am trying not to use the word “couples,” as people do all kinds of things alone, in couples, in triples, and in larger groups.)

Although anti-homosexual legislation across Africa—I’m thinking of Uganda, specifically—tends to think in couples (one person penetrating another with genitals or objects or any other body part), the specific attention to how objects are used could be used to criminalize, say, the use of dildos as part of sodomy. It’s good to remember that whereas sodomy in our contemporary moment is understood as anal sex, in its more capacious meaning it refers to any non-reproductive sex act, and so would include individual masturbation with or without a sex aid.

Yet, if the U.S. ruling—are these things called rulings or judgments? some of us did not go to law school—provides a more capacious terrain for thinking about the range of ways homosexuals practice pleasure, it also diminishes the importance of pleasure. Homosexual acts are framed as “sexual practices common to a homosexual lifestyle.” They are considered “one element in a personal bond that is more enduring.” “Homosexual acts” can be decriminalized because they “express” something greater. Something like love? Something respectable?

But what if they don’t have to? What if erotic pleasure is a good in itself? What if cases to decriminalize sodomy laws did not rely on the (implicit) promise that once freed from state harassment—and, in Kenya, threats of blackmail—homosexuals will be respectable and responsible citizens who restrict their “conduct” to private areas where it does not impinge on heteronormative structures and feelings?

What if, following Audre Lorde and Samuel Delany, we insist that erotic practices build and sustain worlds?

Worlds built on the lessons of the erotic—that satisfaction, not suffering, should be how we assess our everyday relations and practices, including our work and social lives—are thriving worlds, necessary worlds, worlds founded in and devoted to making and sustaining good relations.