Why Should The State Trespass Into The Bedrooms Of Consenting Adults?

Qanawu doesn’t agree with two consenting men, exchanging bacteria (kissing) or having sex. But, he would defend their right to do so in their privacy, without being branded criminals. It was about a decade ago, Qanawu, who was on a Christmas visit to Ghana, was at a club described at the time as the most decent in Accra, Oops! Standing close to the dance floor, nodding his head back and forth to the rhythm, a well-built six footer of a black man came to him, pulled his hand and asked him to join him on the dance floor. Qanawu felt so insulted that he launched a rocket of slags back at the man. The man looked at Qanawu strangely, shook his head and coolly walked off to dance with another fella.

There was something odd but at the same time normal about the episode. A case of cultural de-orientation. Qanawu, instinctively thought the muscular dude was hitting on him. “Whether Oops! was a gay club or not, this man, frighteningly tall, with muscles popping out of his tight shirt was looking Qanawu’s way for the kind of fun Qanawu prefers with XX chromosomes, not with X and Y. But, wait a minute… This was Ghana. Back in 1983 and thereabout, Qanawu remembers the kinder innocent but intimate bone-to-bone dances that went on at the Babylons, Ketekes, Black Ceasers and Finestyles. It was a nice feeling. Ghana remains innocent. Few years to the end of the twentieth century, two men could still walk down the street, hand-in-hand, and nobody would think anything of it. It is not that Ghana is as easy as San Francisco, very tolerant of homosexuals. No. Rather, the age of innocence still reigns supreme. But, is that really true? For those in doubt, the fact that a gay conference was threatened is an indication that a good section, however small, of our society is suffering in silence. Section 104(1) of our Criminal Code, 1960 (Act 29) reads: “Whoever has an unnatural carnal knowledge (a) of any person of the age of 16 years or over without his consent shall be guilty pf a first degree felony and shall be liable to imprisonment of not less than 5 years and not more than 25 years; (b) of any person of 16 years and over with his consent is guilty of a misdemeanour or (c) of any animal is guilty of misdemenour.” The law goes on, very woefully in fact, to define ‘unlawful carnal knowledge: “Sexual intercourse with a person in an unnatural manner or with an animal.”

So what is unnatural? Would the use of a vibrator qualify? What about a banana or any phallus-looking instrument a very lazy husband who can’t afford Viagra may lay his hands on? Is lesbianism captured under this law, since two women cannot possibly have a sexual intercourse in the true meaning of the word because it involves penetration?

Perhaps, we should look back into history. The laws against prostitution and incest are in place largely because of moral objections.

The term ‘homosexuality’ was coined in the late 19th century by a German psychologist, Karoly Maria Benkert. Although the term is new, discussions about sexuality in general, and same-sex attraction in particular, have occasioned philosophical discussion ranging from Plato's Symposium to contemporary queer theory. At the basis of anti-sodomy laws is the natural law and some interpretations of that law as forbidding homosexual sex. “True law is right reason in agreement with nature,” as Cicero put it. When Qanawu started reading Plato’s Symposium with Socrates in that book giving a lecture on that subject called Love, to his surprise, the book described the highest love among humankind to be one between two men, but one driven more by intellect. But even one of the early protagonists of natural law, Plato was himself confused later in condemning homosexuality in The Laws. In the Laws, Plato applies the idea of a fixed, natural law to sex, and takes a much harsher line than he does in the Symposium or the Phraedrus. In Book One he writes about how opposite-sex sex acts cause pleasure by nature, while same-sex sexuality is “unnatural.” In support of the argument, which was common on the airwaves here in Ghana last week was that, it is not every aspect of western culture that we should mimic. Very convincing because gay love was accepted in places in Europe even before Christ. Diogenes Laeurtius, for example, wrote of Alcibiades, the Athenian general and politician of the 5th century B.C., “in his adolescence he drew away the husbands from their wives, and as a young man the wives from their husbands.” Alexander the Great and the founder of Stoicism, Zeno of Citium, were known for their exclusive interest in boys and other men. But, even Europe later on hardened. They became very intolerant in the latter part of the twelfth through the fourteenth centuries. And this intolerance towards gays, interestingly coincided with a similar rise in persecution of Jews, Muslims, heretics, and others. As the scholars remind us, the Church started to appeal to a conception of “nature” as the standard of morality, and drew it in such a way so as to forbid homosexual sex (as well as extramarital sex, nonprocreative sex within marriage, and often masturbation). For example, the first ecumenical council to condemn homosexual sex, Lateran III of 1179, stated that “Whoever shall be found to have committed that incontinence which is against nature” shall be punished, the severity of which depended upon whether the transgressor was a cleric or layperson. Thus, there we have the basis of Section 104 of Act 29 and the origins of ‘Unnatural carnal knowledge.’

But, for even our contemporary discussions, it is important to note that a key category then was the ‘sodomite,’ which differs from the contemporary idea of ‘homosexual’. A sodomite was understood as act-defined, rather than as a type of person. Someone who had desires to engage in sodomy, yet did not act upon them, was not a sodomite. Also, persons who engaged in heterosexual sodomy were also sodomites. There are reports of persons being burned to death or beheaded for sodomy with a spouse. Qanawu contends that, just like in the past, regarding Section 104 the gender of one's partner is again not of decisive importance. This brings in the argument, was the State right to ban the conference? Difficult to say yes. Some compare it to a group of drug barons holding a conference about drug trafficking. Qanawu would rather compare it to a group of women, prostitutes or not, holding a conference advocating for prostitution to be decriminalised. Or even a group of Rastafarians demonstrating against smoking ganja being a criminal offence. Adu Boahen broke that celebrated culture of silent, calling for multiparty democracy at a time that it was against the law to have a political party. The fact that an act is unlawful does not mean people cannot meet and speak freely for that law to be repealed.

When Qanawu heard of a gay conference, it sent a bit of shiver: the thought of that Aussie-Brit, Peter Tatchell, who has made gay rights his life, standing in front of SSS gates with a placard on gay rights came to his mind. But, for how long is Ghana going to pretend it is fiercely resisting that harbinger of ‘modernity’? It may be ugly and vile to your values, but, think deeply… Is it really civilised to discriminate especially on the basis of what a man chooses to do with his sexuality with another consenting adult? The Mayor of Moscow, Yuri Luzhkov vowed without success that gays would not march in his town: “Morality works here. If anyone has any deviations from normal principles in organising their sexual life, those deviations should not be exhibited for all to see.” It’s hard to argue against him if you’ve had to endure what Gabby has at Clapham Common, London, seeing a man in leather trousers, with a big hole neatly cut exposing his very pale buttocks on the streets, you would at least grant him that pass. The truth is Europe is not even united in its support of same-sex relationship. Polish Premier Jaroslaw Kaczynski has also vowed to keep his country’s “culture and morals” pure and away from the “degenerating” western culture. But, he can’t win. The new Pope (not Polish), Benedict XVI describes homosexuality as “intrinsic moral evil,” although some Catholic priests are notorious with choir boys. Not even the house of the Lord could be ‘protected’ from gays. Just nearby in Nigeria, Archbishop Akinola of the Anglican church has managed to push through a severe law against gays.

And, to go back to the point, nowhere in Section 104 does it expressly say that to be gay is a crime. It simply says that to engage in ‘unnatural carnal knowledge’ is a crime. Stretch it logically, then all the husbands who either adventurously or accidentally let their manhood slip into the sodomic territories of their wives have fallen foul of Act 104. The law is most absurd and simply unenforceable.

Even for the Christians who argue that Christianity abhors homosexualism, what is clear, however, is that while condemnation of same-sex attraction is marginal to the Gospels and only an intermittent focus in the rest of the New Testament, the early Christian church fathers frowned not only upon ‘unnatural sex’ but also against premarital sex, fornication, masturbation, etc. Their viewpoint, as expressed in St Augustine, was that procreative sex within marriage is allowed, while every other expression of sexuality is sinful. Should we also not ban premarital sex, too? Should we not also make a crime of extra-marital affairs? If we want to be so moral, then let us abide by the diktats of St Aquinas, who in a significant move, added a requirement that for any given sex act to be moral it must be of a generative kind. So it was ordained that sex for the sake of pleasure even outside of marriage was prohibited by the Church. For a variety of practical reasons, premarital intercourse has slowly become more common and eventually acceptable. There was once a time, especially under Roman Law, in the Justinian's Code, promulgated in 529, when persons who engaged in homosexual sex were to be executed. In Holland in the 1730's, as many as one hundred men and boys were executed and denied burial. Ghana, thankfully, has never gone to such extremities. But, the fact of the matter is that enforcement of Section 104 has been at best episodic. The germane question is this: do we really want the State to police what two consenting adults choose to do in the privacy of their bedrooms? The counter-argument may be that, repeal Section 104 and you fall onto a slippery slope – Ghana becomes a haven for gay tourists, who are already exploiting our love-thy-neighbour-than-thyself kind of hospitality towards foreigners. But, would actually ignoring the issue level-up the slippery slope? It is a truism that homosexual conduct, incest, or adultery all undermine the traditional family – ie, that these practices make it harder for the culture to treat the traditional family as normative. They are all objectionable in Ghana, antithetical to the traditional family, but are they all equally objectionable morally? Though the right to privacy is not as explicitly guaranteed in our Constitution like elsewhere (South Africa, for example), the Supreme Court may easily throw out or back any case of a citizen demanding his right to sodomy under the Constitution, but, we must as a society cool off and seriously allow a debate on these matters, rather than the emotive responses that jammed the airwaves last week.

In 1961, the House of Lords handed down a decision which caused great consternation amongst lawyers and commentators: Shaw v. Director of Public Prosecutions. Shaw had published a booklet called the Ladies' Directory, which advertised the names and addresses of prostitutes. The booklet: “... left no doubt that the advertisers could be got in touch with at the telephone numbers given and were offering their services for sexual intercourse and, in some cases, for the practice of sexual perversions.”

Shaw was successfully prosecuted under a number of provisions of the Sexual Offences Act 1956 and the Obscene Publications Act 1959. He was also convicted on a charge of “conspiracy to corrupt public morals” on the basis that, when he published the booklet, Shaw was conspiring with the prostitutes “... to debauch and corrupt the morals of youth and other subjects of the Queen.”

Shaw complained to the House of Lords, inter alia, that the crime of conspiracy to corrupt public morals was hitherto unknown or innominate. All five law lords upheld the conviction. Only Lord Reid maintained that the crime with which Shaw was charged was an existing common law misdemeanour. The other four law lords went further. They held that courts have a residual power to superintend offences which are prejudicial to the public welfare. The majority built their argument upon the notion, put forward by Lord Mansfield almost two hundred years earlier, that the courts are “guardians of public morals” and that they ought to restrain and punish “... whatever is contra bonos mores et decorum.” The debate, Qanawu believes, must be about whether we should continue to ban a homosexual conduct like sodomy? Should the State interfere in what two consenting adults decide to engage in their own privacy? It is a law, hard to enforce, left on the books, but rarely and selectively enforced, which is unfair and fosters disrespect for law. To ban same-sex sodomy but leave heterosexual conduct, such as extra-marital sex unregulated, seems hypocritically odd if the goal is to promote sexual morality. Section 104 may be so foolish and oppressive, but it may not necessarily be unconstitutional. Any claim to constitutional grounding for the right to sodomy may be at best facetious. But, we must use reason not emotions to deal with the issue. The real concern in Qanawu’s view is how to protect our children from perverts and child molesters. If as a parent you believe in pure Christian values, then by God, attempt to indoctrinate in it in your children, but please don’t make another man’s preference your headache.