Part I Experiences of being lesbian, gay, bisexual, transgender and intersex in the Asia Pacific
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CASE STUDY: DECRIMINALISATION OF CONSENTING ADULT
SAME-SEX CONDUCT
Under the old Crimes Act 1961, indecency between males and sodomy were
offences. However in 2009, the Crimes Act underwent its first review by the
Law Reform Commission of Samoa. In the review, the Commission supported
repealing all criminal penalties attaching to sodomy and related acts
conducted in private between consenting adult males. The Commission was of
the view that such legalisation was essential to meet a number of international
human rights, including non-discrimination on the basis of gender and sexual
preference, and respect for personal privacy. The review resulted in the current
Crimes Act 2013. Sodomy still remains an offence, however its provision
was redrafted in a way not to criminalise acts conducted in private between
consenting adult males. Furthermore, the offence of indecency between males
was repealed.103
The Asia Pacific region has not yet seen the emergence of ‘gay and lesbian propaganda laws’, such
as those enacted in Russia and promoted elsewhere by Russia. In 2014, a draft law was proposed in
Kyrgyzstan – Law on the formation of a positive attitude toward non-traditional forms of sexual relations
– but it has still not been enacted.104 In 2015, the Kazakhstan Senate passed two draft laws: On
Protecting Children from Information Harmful to Their Health and Development and On Amendments
and Additions to Several Legal Acts of the Republic of Kazakhstan Concerning the Protection of
Children from Information Harmful to Their Health and Development. The draft laws were rejected by
the Constitutional Council. These developments in Kyrgyzstan and Kazakhstan, though unsuccessful,
reflect a worrying extension to the Asia Pacific region of hostile attitudes towards lesbian, gay and
bisexual people found in Russia and some States in Africa.
In addition, other criminal laws can be misused to target lesbian, gay and bisexual people. The ACJ, in
its report on human rights in relation to sexual orientation and gender identity in the Asia Pacific region,
found that, in addition to laws directly criminalising same-sex sexual conduct between consenting
adults, a range of other laws containing criminal sanctions have been used to target people of diverse
sexual orientations. The ACJ highlighted laws relating to vagrancy, public nuisance, national security,
public morality, obscenity, indecency and public order.
The existence of some such laws, or their discriminatory application, breach rights to equality and nondiscrimination.105
Criminal laws targeting lesbian, gay and bisexual people have both direct and indirect effects on human
rights. Directly, they impose treatment and punishments that violate human rights, including arbitrary
detention, torture and cruel, inhuman and degrading punishment, and arbitrary execution. Criminal laws
provide a legal basis for police to detain lesbian, gay and bisexual people and, when detained, lesbian,
gay and bisexual people are at greater risk of sexual assault. Lesbians particularly report frequent rape
while in police custody. Both gay men and lesbians are at significantly greater risk of rape in prison than
heterosexual prisoners.
103
APF, ‘Office of the Ombudsman of Samoa’, Briefing document for the workshop on the role of National Human Rights Institutions
in promoting and protecting the rights of LGBTI in Asia and the Pacific, 24-25 February 2015, p. 26.
104
Communications report of Special Procedures, 20 August 2014, A/HRC/27/72, p. 55; and Communications report of Special
Procedures, 2 June 2015, A/HRC/29/50, p, 78.
105
APF, ACJ Report: Human rights, sexual orientation and gender identity, 2010; p. 20; at www.asiapacificforum.net/resources/acjreport-sogi/.
Chapter 2: Being lesbian, gay and bisexual in the Asia Pacific | 33