Around the world, numerous countries are complicit in the killing of actual and perceived sexual minorities. However, the reasons for these deaths are often misunderstood, distorted, or covered up.
A new report, State-Sanctioned Killing of Sexual Minorities: Looking Beyond the Death Penalty, exposes the sheer extent to which states are involved in the killing of sexual minorities. This report was drafted as part of Eleos Justice, a Monash University initiative.
Thirty years ago, consensual same-sex sexual acts between adults were criminalised in the majority of countries worldwide. Today, of the 69 countries that continue to do so, the death penalty may be applied for same-sex intimacy in 11. However, the report reveals that the state-sanctioned killing of sexual minorities is often perpetrated well beyond the boundaries of the law, and even in countries that do not criminalise such conduct.
In fact, the findings suggest at least 23 states are complicit in the killing of individuals on the basis of their sexual orientation. This is the first report to look beyond the use of the death penalty for same-sex intimacy, and explore alternate avenues – both direct and indirect – by which states commission, condone, endorse and enable the killing of sexual minorities.
“Around the world, numerous states are complicit in the most extreme response to sexual diversity: homicide,” says Associate Professor Mai Sato, Director of Eleos Justice, Monash University, who co-authored the report with Christopher Alexander, Fellow, Eleos Justice.
“While 11 countries retain the death penalty for same-sex intimacy, our research has identified alternate forms of state-sanctioned killing of sexual minorities in at least 23 states, revealing the pervasive extent of this issue.”
The report has been endorsed by Victor Madrigal-Borloz, United Nations Independent Expert on Protection Against Violence and Discrimination Based on Sexual Orientation and Gender Identity, as well as Michael Kirby, former justice of the High Court of Australia, and patron of Capital Punishment Justice Project and the Castan Centre for Human Rights Law at Monash University.
In praising the report, the former Justice recognises that while the formal criminalisation of same-sex sexual acts is declining globally, in conformity with the international legal prohibition on the imposition of the death penalty for same sex sexual conduct, sexual minorities still face the most extreme threat of all – death – for same-sex intimacy in many countries.
“Countries that formerly may have imposed, and even welcomed, the infliction of the death penalty on sexual minorities for their ‘unspeakable crimes’ are now gradually backing away from doing so. This is a virtue of transparent global dialogue advanced by organs of the United Nations.”
“But to confine the problem of violence against sexual minorities to those who are actually executed on conviction of a capital offence would gravely underestimate the challenge, as evidenced by the report State-Sanctioned Killing of Sexual Minorities by Eleos Justice,” Kirby says.
He also notes that Australia does not escape culpability: “The clearest instance of state-sanctioned killings of sexual minorities can be seen in so-called ‘gay panic’ cases where the law affords a defence for the murder of a same-sex attracted person and where self-defence or provocation can be invoked successfully to escape public punishment. Until 2020 this defence was still available in Australia, with South Australia the final state to abandon it,” the former Justice says.
Major findings of the report include:
· In at least 23 countries, sexual orientation – actual or perceived – may be the motivating factor in the state’s commission, endorsement, enabling, condoning or excusing of killings of sexual minorities
· In 11 countries, same-sex sexual acts may carry the death penalty.
· 2 states – Iran and Saudi Arabia – actively execute persons convicted of having engaged in same-sex sexual acts
· Since 2004, Iran has carried out at least 79 executions for same-sex sexual offences
· Extrajudicial killings of sexual minorities take place in the Chechen Republic, Afghanistan, Iraq, Libya, Somalia, Syria and Yemen
· Legal provisions distinguishing ‘honour killing’ from murder: In Iran and Jordan, killers have received reduced sentences—or been acquitted entirely— upon claiming that they killed their relative perceived to be gay or lesbian to preserve family honour.
· ‘Gay panic’ defence: In 2018, a United States court sentenced a convicted killer to six-months’ imprisonment after he claimed that he killed his victim—a gay man—in response to being sexually propositioned. On 1 December 2020, South Australia became the final Australian jurisdiction to abolish the gay panic defence.
The report was commissioned by Capital Punishment Justice Project (CPJP) and part-funded by the Department of Foreign Affairs and Trade (DFAT), Monash University Faculty of Law, and John Willem de Wijn AM QC.