British vs. Japanese Homosexuality Criminal Laws

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Homosexuality is one of the most pressing issues in the legislation system of many countries. It is regulated within the framework of LGBT rights. The abbreviation stands for lesbian, gay, bisexual, and transgender (Reichel 2008). The initial term “gay community” was replaced by LGBT as its representatives believed that it did not manage to reflect the variety of sexual relationships promoted by those to whom the term refers. Nowadays, it is used in most of the countries that want to emphasize the diversity of the issue. However, despite the overall acceptance of the phenomenon, homosexual people still do not openly identify themselves in some countries (Gibson 2014).

The attitude of the general public largely depends on the character of the political and cultural environment that may range from discriminatory to highly liberal (Reichel 2008). The perception of the same-sex partnership has changed over time: it was seen as a grave sin or a minor sin, normal relationships or violation of ethical and moral laws. The attitude of Asian and European people towards gay marriages, the right to adopt children, occupy positions of power, and express their sexual identity freely differs rather considerably even despite the globalization effects (Gibson 2014).

The paper at hand is going to compare the criminal legislation concerning homosexual rights accepted in the UK and Japan in terms of advantages and disadvantages of different attitudes.

Homosexual Rights in the UK: Historical and Contemporary Perspective

Evolution of the Attitude

The rights of homosexual people in the United Kingdom have significantly improved with time. Initially, when the country was formed, it had a strong religious orientation, which implied that homosexual relationships were considered to be sinful and were against the civil and religious laws. The Buggery Act of 1533 classified them as criminal and presupposed the highest possible punishment – execution. It was not until the 1960s that the prominence of liberalisation of sex activity started to be discussed as a necessary change in the criminal law (Clements & Field 2014).

However, the issue acquired real significance and support at the beginning of the 21^st century. In 2000, the prohibition to serve openly in the Armed Forces was removed. The Equality Act passed in 2010 was aimed to struggle against all kinds of discrimination including discrimination based on sexual orientation. Moreover, the age of consent was made equal regardless of the orientation (Knight & Wilson 2016). Moreover, couples consisting of partners of the same sex got the permission to enter a civil bond (which was very similar to marriage as far as the rights were concerned) and could even adopt children, first in England and Wales and then in Scotland and Northern Ireland. In 2014, homosexual people have granted the right to enter same-sex marriage (all the countries except Northern Ireland) (Clements & Field 2014).

Nowadays, this population group can enjoy practically the same rights and obeys the same criminal law as the other citizens of the UK, which signalizes one of the most advanced policies concerning sexual orientation in the whole world. Currently, the UK rates the first in Europe in terms of respect for human liberties and equality. Moreover, the country has an unprecedented number of homosexuals in Parliament. There are a lot of LGBT organizations that are aimed to protect their rights. Despite this fact, there are still a lot of people that are not open about their sexual orientation (Knight & Wilson 2016).

Historical Change of the Legislation

However, as it has already been mentioned, the UK was not as tolerant in terms of same-sex couples several centuries ago. The English sodomy law introduced by Henry VIII identified anal sex as a crime (same as zoophilia).The act was transferred from the religious domain to criminal matters (Knight & Wilson 2016). Those who were found guilty were typically sentenced to death. In 1861, the Offences against the Person Act was passed to abolish capital punishment for homosexuality. Nevertheless, it remained illegal and was punished by labour (it is worth noting that only gay men were targeted as lesbians were never considered to be criminals) (Clements & Field 2014).

Even already in the middle of the 20^th century, the government continued to promote policies that discourage sexual relationships between representatives of the same gender. More than a thousand gays were imprisoned and some of them were even subjected to the so-called chemical castration that consists in treating the patient with female hormones (Pakes 2014).

In 1954, the Wolfenden Committee was established to review the UK laws related to homosexuality. It concluded that it should be considered a private issue that can neither be treated as a disease nor punished as a criminal offence (Suffee 2016). Moreover, it was no longer related to mental health distortions. The decision was openly supported by the Archbishop of Canterbury, who claimed that this aspect of life is highly private and cannot be regulated or restricted by criminal law. In 1958, the Homosexual Law Reform Society was formed to ensure the practical application of the new policy (Pakes 2014).

The country was heading towards the total decriminalization of homosexuality in any of its forms. In 1967, the Sexual Offences Act was passed that did not fully remove the criminal responsibility of gay men but still allowed their relationships under three basic conditions (Pakes 2014):

their relationships had to be formed under mutual consent;
the consent age for such couples had to be higher than that set for heterosexual acts;
homosexuality should be forbidden for people who were under 21.

Besides, the possibility of a homosexual act in the presence of any third party (even if another person was in the neighbouring room of the hotel), was excluded and punished by the UK courts (all these limitations were removed by the European Court of Human Rights in 2000) (Clements & Field 2014).

In 1979, it was suggested to reduce the age of consent for homosexual activities to 18 but no law was passed to enact this decision. The same attempt failed in 1994 when the amendment concerning the reduction of the consent age to 16 was defeated in the Parliament. The most commonly cited reason was the desire to protect children from entering gay relationships. However, in 2004, the Sexual Offences Act was finally passed, which removed all the exiting restrictions on homosexuality (Clements & Field 2014).

Homosexual Marriage

As soon as homosexual relationships were decriminalized, the marriage between people of the same gender began to be widely discussed. The point is that it had been prohibited and considered to be a criminal act before the public attitude changed drastically. Even when the civil partnership was already accepted in all the four countries, marriage was still not allowed. The first gay marriages appeared not earlier than in 2013. Nowadays, homosexual marriages give spouses the same rights as heterosexual ones and can follow the approved marriage contract. However, the Church cannot be forced to perform such rituals and in most cases demonstrates its negative attitude to the issue. The marriage can be annulled in case of adultery, unreasonable behaviour or for some other reasons (Knight & Wilson 2016).

As it has already been mentioned, such kind of marriage is still illegal in Northern Ireland (Knight & Wilson 2016).

Adoption

Homosexual couples now have the right to adopt children even though there is a lot of dispute concerning the stability of such relationships as well as their benefits for the child (Pakes 2014).

In 2008, lesbians were allowed to become parents in case of IVF or self-insemination. Both partners can be named parents in the child’s birth certificate. This innovation made a significant contribution to the development and acceptance of women’s rights as for the first time in history they were granted the right to be treated as real parents of the child (Knight & Wilson 2016).

Military Service in Her Majesty’s Armed Forces

It was prohibited for gay people to serve in the Army until 2000. In 2010, any discrimination based on sexual orientation was legally outlawed. At present, everyone on the military service has to adhere to the same rules that ban any kind of sexual bullying, harassment or any other possible demonstrations of intolerance or discrimination (Pakes 2014).

Currently, it is an accepted policy to recruit homosexual people to the Army. Moreover, homosexual sailors have been granted the right to hold a civil partnership ceremony on board the ship (Pakes 2014).

All soldiers of the Army are required to complete the Equality and Diversity course and pass a special test. They have to demonstrate how they learnt to respect others and behave appropriately with representatives of another sexual orientation (Knight & Wilson 2016).

Protection Against Discrimination

Before all the above-listed changes were introduced, it had been rather typical of British employers to discriminate applicants based on their sexual orientation. This kind of treatment was abolished in 2003. The new regulations also concerned discrimination in the form of unequal provision of goods and services. It led to a prolonged dispute with the Catholic Church. The clergy claimed that the adoption of such attitude contradicted the traditional values promoted by the Church (Suffee 2016).

In 2007, the government of the UK announced its intention to pass a new amendment to the criminal justice that would consist of punishing incitement to hatred based on a person’s homosexuality. Northern Ireland became the first country that accepted this innovation in criminal law (Suffee 2016).

The European Union has always acted as a proponent of homosexual rights and liberties. It contributed to the elimination of discriminating attitude towards gay people in the labour market and supported the idea of introducing the equal age of consent for the entire population of the UK. Also, it sided with open military service and the right to enter legal marriage (Clements & Field 2014).

The modern opinion polls show that more than 90% of the British citizens perceive homosexual people either neutrally or positively and do not support any kind of punishment for this act. Homosexuality is not considered to be criminal or shameful (Clements & Field 2014).

Homosexual Rights in Japan as compared to the UK: Historical and Contemporary Perspective

The General Overview of the Issue

The representatives of the LGBT community may encounter legislative restrictions in Japan in the same aspects as they do in the UK. However, unlike the UK, Japan has never expressed any hostility towards people who were different in their sexual orientation. Homosexuality was already legal in 1880 and was not punishable under any law (Stotzer 2014). Nowadays, the age of consent for homosexual and heterosexual couples is equal. Despite this tendency to liberalisation, same-sex households in Japan cannot enjoy the same rights for legal protection that are available for traditional couples (Armstrong & Montal 2013).

According to different surveys, the majority of the population does not have any negative attitude to gay people. Even so, the attitude is not as unanimous as it can be witnessed in the UK (Armstrong & Montal 2013). 36% of the Japanese do not agree that it would be reasonable to recognize homosexuality as a social norm alongside traditional relationships. There are no political institutions that support homosexuality. However, the same as in the UK, discrimination on a sexual basis is prohibited (Stotzer 2014).

Legislation Concerning the Age of Consent

In this case, the situation is rather different from what can be observed in the legislative system of the UK. The point is that the age of consent in Japan is quite young – a person can enter sexual intercourse at 13. Although it is legal, there are still some laws protecting young people from any possible sexual offence or coercion on behalf of adults (Welker 2013). Thus, an adult cannot enter sexual relationships with a young person under 17. However, the Prostitution Prevention Act does not forbid homosexual prostitution since its goal is to punish sexual misconduct only between representatives of different genders (Wieringa 2015).

Unlike the Catholic Church in the UK that generally shows its negative attitude towards homosexuality, the Japanese religions (Shintoism, Buddhism, and Confucianism) do not state anything in particular as it concerns same-age relationships. Despite the religious tolerance and even indifference to the issue, sodomy was considered to be a crime under the Napoleonic Code. Since the end of the 19^th century, the countries have not had any criminal regulations of homosexuality and now it is legal and accepted without prejudice (Wieringa 2015).

Discrimination Problem

While the British government does its best to ensure equal rights of homosexual and heterosexual people, in Japan there exist no civil rights laws that would be guaranteed and protected at the national level (Wieringa 2015). Therefore, it means that in case of sexual discrimination in such areas as education, health care, employment, etc., homosexual people do not receive any support from the state. Nevertheless, it had to be admitted that such cases of discrimination are not typical of Japanese society. The same rule applies to military service. The government supports the idea that there are no obstacles that could hinder the service of homosexual people in the Army as long as their relationships do not create any kind of conflicts or other trouble (Welker 2013).

Unlike the UK that promotes equality in family issues, Japan excludes same-sex partners from the Law for the prevention of Spousal Violence. This implies that homosexual partners do not have support in case they had to deal with physical, psychological or sexual abuse in the family. Also, the government refused to review the Equal Opportunity Law to include the protection of sexual orientation (Welker 2013).

It was not until 2003 that homosexual coupled obtained the right to rent houses and flats from the government agency as heterosexual families do (Wieringa 2015).

Homosexuality and Politics

While the UK has heated debates on the topic of gay liberties and responsibilities, Japan does not tend to discuss it in public. There is no political party that would express its unanimous position explicitly. However, some of them still respond to questions concerning the legalization of homosexual marriage. In 2001, it was even proposed to include sexual identity right in the civil rights code of the country but the suggestion was declined by the government (Wieringa 2015).

Kanako Otsuji was the first homosexual politician who openly admitted his orientation, which is so typical of the British men of power (Wieringa 2015).

The Right to Enter Marriage

Unlike British homosexual people, the Japanese have no right to marry and do not have any of the privileges that heterosexual couples have. Moreover, if the couple married in any other country where this possibility is officially recognized, this marriage will still be illegal in Japan. One partner cannot even receive a visa for the other based on their same-sex relationships as they are not accepted by the country (Armstrong & Montal 2013).

However, there is now a lot of discussion on the possible recognition of gay marriage shortly as Japan is gradually becoming more and more progressive in this respect. In 2015, the district of Shibuya claimed that it was going to change the policy towards same-sex couples as it is highly important for the convenience purposes: this way such couples will be able to organize hospital visits or rent a flat for living together (Armstrong & Montal 2013). Such families will have the right to get a paper that would prove their relationships, which is necessary in many daily matters that could be resolved much easier in this case. This small and seemingly insignificant decision is indeed a huge leap towards tolerance and homosexual rights recognition (Wieringa 2015).

Progressive Views

While Japan is much more conservative in terms of homosexual rights recognition, there are still a lot of celebrities that are gay or transgender. On the whole, the media tend to mock at prejudice about any kind of sexually deviant behaviour (Armstrong & Montal 2013).

In 2002, the government accepted the law that allowed people who had undergone plastic surgery related to sex reassignment to change their gender in their documents. In 2012, there was a case when a transgender woman was transferred to a female institution because of the changed gender (Armstrong & Montal 2013).

Conclusion

The comparative analysis of the legislation concerning homosexuality in the UK and Japan proves that, even though it is no longer considered to be a crime either in Europe or in Asia, European countries tend to be more liberal in terms of acceptance of homosexual marriage and adoption of children. On the contrary, Asian countries are more tolerant of same-sex partnership from the religious point of view.

Reference List

Armstrong, D & Montal, F 2013, ‘The politics of international criminal justice’, The Routledge Handbook of International Crime and Justice Studies, vol. 4, no.1, pp.125-138.

Clements, B & Field, CD 2014, ‘Public opinion toward homosexuality and gay rights in Great Britain’, Public Opinion Quarterly, vol. 78, no.2, pp.523-547.

Gibson, M 2014, ‘Law, religion and homosexuality’, Ecclesiastical Law Journal, vol. 17, no. 3, pp. 382-385.

Knight, C & Wilson, K 2016, Lesbian, gay, bisexual and trans people (LGBT) and the criminal justice system, Springer, New York.

Pakes, F 2014, Comparative criminal justice, Routledge, Abingdon-on-Thames.

Reichel P 2008, Comparative criminal justice systems: a topical approach, Prentice Hall, Upper Saddle River.

Stotzer, RL 2014, ‘Bias crimes based on sexual orientation and gender identity: global prevalence, impacts, and causes’, Handbook of LGBT communities, crime, and justice, vol. 13, no. 2, pp. 45-64.

Suffee, R 2016, ‘Homosexuality and the law: the construction of Wolfenden Homonormativity in 1950s England’, Journal of homosexuality, vol. 63, no. 2, pp.250-277.

Welker, J 2013, ‘Homosexuality and manliness in postwar Japan’, Asian Studies Review, vol. 37, no. 3, pp. 400-402.

Wieringa, SE 2015, ‘Sexualities, Asia and the Pacific’, The International Encyclopedia of Human Sexuality, vol.8, no.1, pp. 43-59.

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