Hostname: page-component-78c5997874-4rdpn Total loading time: 0 Render date: 2024-11-05T05:38:13.177Z Has data issue: false hasContentIssue false
  • English
  • Français

Narratives of “Sodomy” and “Unnatural Offenses” in the Courts of Mandate Palestine (1918–48)

Published online by Cambridge University Press:  15 December 2016

Orna Alyagon Darr
Get access Rights & Permissions [Opens in a new window]

Extract

Sixteen-year-old Acre resident Mustafa Naif, suspected of having sex with another man, stated before the police investigator on June 30, 1943, “I know Mustafa Zaharan and is my friend and mate, I used to love him and he used to love me, and that this man had a sexual intercourse with me twice with my consent and free will, because he loves me and I love him.”1 By the time of his trial, approximately a month later, Mustafa Naif must have realized this was the “wrong” story to tell. He recanted his statement and denied knowing Mustafa Zaharan or having anything to do with him. His denial might have been another manifestation of love, as an admission of guilt would have led to his friend's conviction on a sex offense. For his lover's sake, then, Mustafa Naif might have renounced his original romantic version. Indeed, his friend was acquitted as a result of the contradictory statements; however, Mustafa Naif was charged with perjury and was convicted after pleading guilty.

Type
Articles
Information
Law and History Review , Volume 35 , Issue 1 , February 2017 , pp. 235 - 260
Copyright
Copyright © the American Society for Legal History, Inc. 2016 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

Earlier versions of this article were presented at the 2015 Global Conference on Sex and the State/Persons and Sexualities (Inter-Disciplinary.Net, Mansfield College, Oxford) and the 2014 Conference of the Israeli Association of Legal History (Jerusalem). The author thanks Ofri Ilany, Assaf Likhovski, Anat Rosenberg, Yuval Yonay, and the participants of the colloquium at the Radzyner School of Law, Interdisciplinary Center (IDC) Herzliya for their valuable comments. She also expresses her gratitude to Elizabeth Dale and the anonymous reviewers for this journal for their helpful and constructive comments.

References

1. Israel State Archives, Jerusalem (hereafter ISA)/RG 30/Law 2029 (original docket # Cr.C. 222/43).

2. ISA/RG 30/Law 2046 (original docket # Cr.C 211/45).

3. For examples of Western condescension toward the Islamic world through reference to the “depravity” of male sex, see Murray, Stephen O., “Some Nineteenth-Century Reports of Islamic Homosexuals,” in Islamic Homosexualities: Culture, History, and Literature, ed. Murray, Stephen O. and Roscoe, Will (New York: New York University Press, 1997), 204–21.Google Scholar

4. The last three decades have seen the emergence of scholarship on the history of homosexuality in other times and places in the Islamic world; see, for example, Murray, Stephen O. and Roscoe, Will, eds., Islamic Homosexualities: Culture, History, and Literature (New York: New York University Press, 1997)Google Scholar; Najmabadi, Afsaneh, Women with Mustaches and Men without Beards: Gender and Sexual Anxieties of Iranian Modernity (Berkeley: University of California Press, 2005)CrossRefGoogle Scholar; Zeevi, Dror, Producing Desire: Changing Sexual Discourse in the Ottoman Middle East, 1500–1900 (Berkeley: University of California Press, 2006)Google Scholar; and Hassan El Menyawi, “The Great Reversal: How Muslim Nations Went from Tolerating Same-Sex Practices to Repressing LGB People 1750–2010” (2014 working paper in the author's possession).

5. Ilany, Ofri, “A Fine Bequest from Our Neighbors,” in Another Sex: Selected Essays in Israeli Queer and LGBT Studies [in Hebrew], ed. Gross, Aeyal, Ziv, Amalya, and Raz, Yosef (Tel Aviv: Resling, 2016), 281–313 Google Scholar.

6. Aldrich, Robert, Colonialism and Homosexuality (London: Routledge, 2003), 84–85 Google Scholar.

7. Kozma, Liat, “Sexology in the Yishuv: The Rise and Decline of Sexual Consultation in Tel Aviv, 1930–39,” International Journal of Middle East Studies 42 (2010): 231–49CrossRefGoogle Scholar.

8. Razi, Tammy, Forsaken Children: The Backyard of Mandate Tel-Aviv [in Hebrew] (Tel Aviv: Am Oved, 2009), 116 Google Scholar.

9. Ilany, “A Fine Bequest from Our Neighbors,” 300.

10. Sanders, Douglas E., “377 and the Unnatural Afterlife of British Colonialism in Asia,” Asian Journal of Comparative Law 4 (2009): 1–19 CrossRefGoogle Scholar; Gupta, Alok and Long, Scott, “This Alien Legacy: The Origins of ‘Sodomy’ Laws in British Colonialism” (New York: Human Rights Watch, 2008)Google Scholar http://www.hrw.org/sites/default/files/reports/lgbt1208_web.pdf (June 23, 2015); and Han, Enze and O'Mahoney, Joseph, “British Colonialism and the Criminalization of Homosexuality,” Cambridge Review of International Affairs 27 (2014): 268–88CrossRefGoogle Scholar.

11. Suzanne LaFont, “Very Straight Sex: The Development of Sexual Mores in Jamaica,” Journal of Colonialism and Colonial History 2:3(2001), http://muse.jhu.edu/article/7405.

12. Arondekar, Anjali R., For the Record: On Sexuality and the Colonial Archive in India (Durham: Duke University Press, 2009)Google Scholar.

13. Ibid., 90–91.

14. Hinchy, Jessica, “Obscenity, Moral Contagion and Masculinity: Hijras in Public Space in Colonial North India,” Asian Studies Review 38 (2014): 274–94CrossRefGoogle Scholar.

15. Her claim that the issue of ritual homosexuality was not raised in any of the cases seems somewhat mislaid, as none of the cases involved such an occurrence, and she acknowledges that the court, at least in one case, considered whether sodomy violated local custom. Stewart, Christine, “Men Behaving Badly: Sodomy Cases in the Colonial Courts of Papua New Guinea,” Journal of Pacific History 43 (2008): 83, 88Google Scholar.

16. Ibid., 92.

17. An Ordinance to Regulate the Procedure in Criminal Cases within the Jurisdiction of the Court of Criminal Assize or of the District Court [1st September, 1924], § 13.

18. According to statistical reports of the Mandate authorities, in the first half of 1943 all those who were tried in the District Court for sex offenses were Muslims. In the Magistrate courts, of 102 persons convicted and sentenced, twenty-one were Jews, seventy were Muslims, and eleven were Christians. General Monthly Bulletin of Current Statistics, Vol. VIII No. 5–10 1943, ISA/M/5302/9.

19. Robson, Laura, Colonialism and Christianity in Mandate Palestine (Austin: University of Texas Press, 2011), 6 Google Scholar.

20. Strawson, John, Partitioning Palestine: Legal Fundamentalism in the Palestinian–Israeli Conflict (London: Pluto Press, 2010), 42 Google Scholar.

21. Ibid., ch. 2.

22. Likhovski, Assaf, Law and Identity in Mandate Palestine (Chapel Hill: University of North Carolina Press, 2006), 23 Google Scholar.

23. Palestine Order in Council, Art. 39, 51 (1922).

24. Robson, Colonialism and Christianity in Mandate Palestine, 48.

25. An Ordinance Relating to the Constitution and Jurisdiction of Certain Courts in Palestine, Art. 3 (1924, revised 1935).

26. Article 98 of the OPC stated, “If a man does the abominable act to a person, that is to say violates his honour, by force he is placed in kyurek temporarily.” Küreks were hard labor penal institutions; see Omri Paz, “Crime, Criminals, and the Ottoman State: Anatolia between the Late 1830s and the Late 1860s” (PhD diss., Tel Aviv University, 2010), 20, 58.

27. Zeevi, Producing Desire, 73.

28. Sanders, “377 and the Unnatural Afterlife,” 22; Yonay, Yuval, “It Is Not Allowed to Be a Homosexual,” in LGBT Rights in Israel: Gender Identity, Sexual Orientation and the Law [in Hebrew], ed. Morgenstern, Einav, Lushinsky, Yaniv, and Harel, Alon (Jerusalem: Nevo & Hebrew University Press, 2016), 931 Google Scholar; and El Menyawi, “The Great Reversal.”

29. Under Section 3 of the Criminal Law Amendment Ordinance (CLAO), rape occurs when “any person … has unlawful sexual intercourse with a female against her will by the use of force or threats of death or severe bodily harm, or when she is in a state of unconsciousness or otherwise incapable of resisting,” and one “commits an act of sodomy with any person against his will by the use of force or threats of death or severe bodily harm, or when he is in a state of unconsciousness or otherwise incapable of resisting.”

30. A case that illustrates this point is Cr.C. 44/33 (Jerusalem) A.G v. Georgiades and Others (1933), in which the accused's vaginal and anal penetration of his female victim resulted in separate charges of rape and sodomy. ISA/RG 66/M/188/33.

31. CLAO sections 7–9: indecent act with force, indecent act without force, and indecent act committed on a child.

32. Section 152(2) of the CCO provided that “any person who: (a) has carnal knowledge of any person against the order of nature; or (b) has carnal knowledge of an animal; or (c) permits a male person to have carnal knowledge of him or her against the order of nature, Is guilty of a felony, and is liable to imprisonment for ten years.”

33. For more on the statutory sodomy/bestiality association, see Ben-Atar, Doron S. and Brown, Richard D., Taming Lust: Crimes against Nature in the Early Republic (Philadelphia: University of Pennsylvania Press, 2014), 1 CrossRefGoogle Scholar.

34. Foucault, Michel, The History of Sexuality, Vol. 1: An Introduction (New York: Vintage Books, 1990), 43 Google Scholar.

35. Sanders, “377 and the Unnatural Afterlife,” 16.

36. Ben-Naeh, Yaron, “Moshko the Jew and His Gay Friends: Same-Sex Sexual Relations in Ottoman Jewish Society,” Journal of Early Modern History 9 (2005): 81 CrossRefGoogle Scholar.

37. Ibid., 81, 86, 105; and El Menyawi, “The Great Reversal.”

38. Coke, Sir Edward, The Third Part of the Institutes of the Laws of England: Concerning High Treason and Other Pleas of the Crown and Criminal Causes (London: W. Clarke & Sons, 1817), 58 Google Scholar.

39. Old Bailey Proceedings Online www.oldbaileyonline.org, version 7.0 (05 May 2014), July 1677, trial of married woman (t16770711-1); July 1757, trial of James Wales (t17570713-29); and April 1776, trial of Christopher Saunders (t17760417-28).

40. Ibid., May 1694, trial of Mustapha Pochowachett (t16940524-20).

41. Ibid., October 1699, trial of Thomas Davis (t16991011-29).

42. The first example is taken from a conspiracy case, about a man who falsely accused another of having homosexual sex. Ibid., February 1695, trial of Thomas Lane (t16950220-30); and September 1736, trial of George Sealey Thomas Freeman (t17360908-67).

43. As exemplified in the indictment of John Bowes and Hugh Ryly, of St. Paul's Covent Garden: “not having God before their-Eyes, did the former commit that horrible and detestable Sin called Buggery, and did against nature carnally know Hugh Ryly, the 27th of November last, and the latter suffer the same to be committed on him.” Ibid., December 1718, trial of John Bowes Hugh Ryly (t17181205-24). Another case in which both partners (penetrator and penetrated) were indicted was the trial of George Sealey Thomas Freeman (t17360908-67): “Thomas Freeman and George Sealey were indicted, Freeman for committing the said horrid and detestable Crime with the said Sealey; and Sealey for wickedly and wilfully consenting and permitting the said Freeman, to commit the horrid Crime aforesaid.” Ibid., September 1736, trial of George Sealey Thomas Freeman (t17360908-67).

44. Ibid., September 1772, trial of Robert Crook Charles Gibson (t17720909-18); and February 1738, trial of Samuel Taylor John Berry (t17380222-5). Proceedings of and indictments for sexual assaults became scarce at the beginning of the nineteenth century, the subject being considered indecent. Stevenson, Kim, “Outrageous Violations: Enabling Students to Interpret Nineteenth Century Newspaper Reports of Sexual Assault and Rape,” Law, Crime and History 4 (2014): 38–39 Google Scholar.

45. Gupta and Long, “This Alien Legacy,” 20.

46. The Sexual Offences Act 1967 significantly decriminalized homosexual acts (though not entirely) two decades after the termination of the Mandate. Weeks, Jeffrey and Porter, Kevin, Between the Acts: Lives of Homosexual Men, 1885–1967 (London: Rivers Oram Press, 1998), xiGoogle Scholar.

47. The prohibition was statutory by nature, and its “common law” aspect related to a tradition of interpretation. Cocks, Harry G., Nameless Offences: Homosexual Desire in the Nineteenth Century (London: I. B. Tauris, 2003), 17 CrossRefGoogle Scholar; Harvey, A. D., “Prosecutions for Sodomy in England at the Beginning of the Nineteenth Century,” The Historical Journal 21 (1978): 941 CrossRefGoogle ScholarPubMed; and Halley, Janet E., “Reasoning About Sodomy: Act and Identity in and after Bowers V. Hardwick ,” Virginia Law Review 79 (1993): 1759 Google Scholar.

48. Sanders, “377 and the Unnatural Afterlife,” 16.

49. Section 142 of the Criminal Justice and Public Order Act 1994. In an ironic twist of fate, the legal framework England adopted in 1994 was conspicuously similar to the Ottoman rule colonial authorities had despised and steered away from in Mandate Palestine in 1927. This is not to say that the nineteenth century Ottoman arrangement and the late twentieth century English provisions regulated sexuality in the same way. The resemblance only demonstrates that the statutory provisions are a fraction of the broader picture and that their meaning is constructed through their interaction with the wider social environment.

50. Section 152(1) set forth that “any person who … (b) commits an act of sodomy with any person against his will by the use of force or threats of death or severe bodily harm, or when he is in a state of unconsciousness or otherwise incapable of resisting; or (c) has unlawful sexual intercourse or commits an act of sodomy with a child under the age of sixteen years” was guilty of a felony punishable by 14 years’ imprisonment.

51. Kirby, Michael, “The Sodomy Offence: England's Least Lovely Criminal Law Export?” Journal of Commonwealth Criminal Law 1 (2011): 28 Google Scholar; and Gupta and Long, “This Alien Legacy.” See also El Menyawi, “The Great Reversal.”

52. Drafted by the Australian colony's Chief Justice, Sir Samuel Griffith, who drew from a version of a comprehensive criminal code prepared in the 1870s by James Fitzjames Stephen at the request of the Lord Chancellor, but never enacted in England.

53. Shachar, Yoram, “The Origins of the Criminal Code, 1936,” Iyunei Mishpat [in Hebrew] 7 (1979): 75–78 Google Scholar; Abrams, Norman, “Interpreting the Criminal Code Ordinance, 1936—the Untapped Well,” Israel Law Review 7 (1972): 29 CrossRefGoogle Scholar.

54. Sanders, “377 and the Unnatural Afterlife,” 12, 15. On section 208 of the QPC, see Gupta and Long, “This Alien Legacy.”

55. Palestine's CCO adopted the Queensland formulation of “offences against nature.” The Cypriot code's arrangement was different. Section 157 related to both active and passive “carnal knowledge” and meted out 5 years’ punishment. Section 158 set a higher punishment (14 years) for “unnatural offence with violence.” Section 160 forbade “unnatural offences with child under thirteen,” an offense punishable with 14 years’ imprisonment with or without whipping or flogging. Section 161 made bestiality an offense punishable by 3 years’ imprisonment.

56. IDA/RG 30/Law 2032 (original docket # Cr.C 50/44).

57. “It is with great regret that there is no provision in the laws of this country for the infliction of flogging for such bestial offences.” ISA/RG 30/Law 2043 (original docket # Cr.C 92/45).

58. McDonnell's letter to the high commissioner dated March 7, 1929, 3. ISA/RG 2/M/265/7. The letter contained remarks regarding the suggested criminal code. Islamic texts regarded consensual homosexual practices as sexual transgression; however, it was debatable whether they were punishable under Ottoman law. The OPC, however, criminalized sexual violence and the abuse of minors. Zeevi, Dror, “Changes in Legal-Sexual Discourses: Sex Crimes in the Ottoman Empire,” Continuity and Change 16 (2001): 226 Google ScholarPubMed.

59. Ibid., 12.

60. For references by British travelers to sodomy in the Ottoman empire, see Ben-Naeh, “Moshko the Jew,” 85.

61. Said, Edward W., Orientalism (New York: Vintage Books, 1979), 205 Google Scholar.

62. Shachar, Yoram, “The Reasonable Person and Criminal Law,” Hapraklit [in Hebrew] 39 (1989): 82–83 Google Scholar.

63. Foucault, The History of Sexuality, 43.

64. Cohen, Claire, Male Rape Is a Feminist Issue: Feminism, Governmentality and Male Rape (Baskingstoke: Palgrave Macmillan, 2014), 3 CrossRefGoogle Scholar.

65. The eight cases stemmed from seven incidents (in one case, the partners were indicted separately) (Cr.c 140/43 & Cr. c 141/43).

66. For a review of literature on the subject of male rape, see Turchik, Jessica A. and Edwards, Katie M., “Myths About Male Rape: A Literature Review,” Psychology of Men & Masculinity 13 (2012): 211–26CrossRefGoogle Scholar.

67. ISA/RG 30/Law 2038 (original docket # Cr.C 286/44).

68. Cohen, Male Rape Is a Feminist Issue, 39.

69. Ibid., 40.

70. Turchik and Edwards, “Myths About Male Rape,” 212.

71. Ibid..

72. Darr, Orna Alyagon, “Relocated Doctrine: The Travel of the English Doctrine of Corroboration in Sex Offense Cases to Mandate Palestine,” Yale Journal of Law & the Humanities 26 (2014): 199 Google Scholar.

73. ISA/RG 30/Law 2009 (original docket # Cr.C. 168/40).

74. ISA/RG 30/Law 2010 (original docket # Cr.C. 195/40).

75. ISA/RG 30/Law 2015 (original docket # Cr.C. 66/42).

76. ISA/RG 30/Law 2030 (original docket # Cr.C. 252/43).

77. Gupta and Long, “This Alien Legacy,” 33–34.

78. Ibid., 34.

79. The punishment for consensual sex between males ranged from a bond for good behavior to imprisonment for 3 months to 4 years. The punishment for sodomy ranged from 2 years probation and bond to six strokes to imprisonment for a few months to 7 years. It should be noted, however, that both offenses usually involved prison terms of 1–2 years.

80. Murray, Stephen O., “The Will Not to Know,” in Islamic Homosexualities: Culture, History, and Literature, ed. Murray, Stephen R. and Roscoe, Will (New York: New York University Press, 1997), 18 Google Scholar.

81. Ilany, “A Fine Bequest from Our Neighbors.”

82. Yonay, Yuval and Spivak, Dori, “Between Silence and Condemnation,” in Another Sex: Selected Essays in Israeli Queer and LGBT Studies [in Hebrew], ed. Gross, Aeyal, Ziv, Amalya, and Raz, Yosef (Tel Aviv: Resling, 2016), 315–371, 327Google Scholar.

83. Gupta and Long, “This Alien Legacy,” 34.

84. For similar motives in court cases that were heard in the courts of Papua New Guinea prior to its independence, see Stewart, “Men Behaving Badly,” 89–90, 92.

85. ISA/RG 30/Law 2028 (original docket # Cr.C. 157/43).

86. Ben-Naeh, “Moshko the Jew,” 90.

87. ISA/RG 30/Law 2030 (original docket # Cr.C. 230/43).

88. Cocks, Nameless Offences, 33.

89. One example is a 1946 case, in which the medical report pointed to penetration but did not find injuries compatible with the victim's story. The accused was therefore charged with the lesser offense of having carnal knowledge against the order of nature. Ultimately, the attorney general stayed the proceedings. ISA/RG 30/Law 2055 (original docket # Cr.C. 183/46).

90. Other terms designated men drawn to boys, boys and men offering their anuses for penetration, or male prostitutes. Murray, “The Will Not to Know,” 28–32.

91. ISA/RG 30/Law 2039 (original docket # Cr.C. 227/43).

92. ISA/RG 30/Law 2028 (original docket # Cr.C. 141/43) and ibid. (original docket # Cr.C. 140/43).

93. Ibid. (original docket # Cr.C. 154/43).

94. A shining example of the use of prostitution to defend against charges of sodomy is found in a Papua New Guinea case involving two men having sex with a male prostitute. The accused, who claimed to be the prostitute's victims, were given warnings and suspended sentences, whereas the 15-year-old prostitute was sentenced to 9 months’ imprisonment. Stewart, “Men Behaving Badly,” 85.

95. ISA/RG 30/Law 2023 (original docket # Cr.C 481/42).

96. ISA/RG 30/Law 2046 (original docket # Cr.C 211/45).

97. “The Murderer from Sarefend Sentenced to 15 Years, ” Davar, October 30, 1931, 3.

98. Interestingly, Jewish depictions of homosexual relationships characterized the practitioners as effeminate. For example, in his prison memoirs, Abba Achimeir, a Jewish revisionist, related the jealousy that a Jewish prisoner displayed in regard to his Arab partner, whom Achimeir dubs “his wife.” Ilany, “A Fine Bequest from Our Neighbors,” n. 57, p. 300.

99. Najmabadi, Women with Mustaches, 16.

100. ISA/RG 30/Law 2029 (original docket # Cr.C. 211/43). Bestiality, another offense that was introduced by the British and included in the section of “offences against nature” was also rarely prosecuted. During research for this article, only one case surfaced, that of a laborer from Syria who was convicted after being caught in the act with a sheep. ISA/RG 30/Law 2027 (original docket # Cr.C. 131/43).

101. When British or other soldiers (e.g., an Italian sergeant) were involved in consensual sex with local men, they were not prosecuted. Three British soldiers who were accused of sexually assaulting a fellow soldier were eventually acquitted (convicted of assault rather than an indecent act). ISA/RG 30/Law 2028 (original docket # Cr.C 154/43), ISA/RG 30/Law 2046 (original docket # Cr.C 211/45), ISA/RG 30/Law 2009 (original docket # Cr.C 173/40).

102. Jeremy Bentham and Oscar Wilde, for example, identified homosexuality with pederasty. Jeremy Bentham (ed. Philip Schofield, Catherine Pease-Watkin, and Michael Quinn), Of Sexual Irregularities, and Other Writings on Sexual Morality, (Oxford: Clarendon Press, 2014), 97–98. For Wilde's testimony at his gross indecency trial, see http://law2.umkc.edu/faculty/projects/ftrials/wilde/Crimwilde.html (June 23, 2015).

103. Foucault, The History of Sexuality, 43.