Alternative Law Journal
The recent decision of the Fiji High Court in Nadan v State read down statutory provisions criminalising homosexual intercourse and fellatio to the extent of their inconsistency with the Fijian constitution. The existence of parallel statutory provisions in other jurisdictions in which constitutional law and international legal obligations cannot provide a basis for similar rulings calls for a different approach. Judges habitually apply natural law to questions of whether a particular act is natural or unnatural, whether by the application of theological doctrine or by the appropriation of rhetoric that might be termed pseudo-scientific. The challenges of both post-structuralism, in the context of which it becomes impossible to arrive at a reliable definition of what is natural, and logical positivism, in the context of which it is impossible to draw ethical conclusions from observations of nature, render a natural legal approach to determining the distinction between natural and unnatural acts questionable.
In this article I argue that a simple approach based on a new construction of the statutory provisions themselves is both the most adaptable and the most conciliatory toward those whose consensual sexual behaviours have been cast by judges as ‘against the order of nature’. Bringing to an end the casting by the courts of consensual anal sex and fellatio, whether hetero or homosexual, as ‘unnatural’, represents an opportunity for conciliation between the courts and those whose consensual sexual practices have for centuries been cast by the English legal system and its inheritors as abominable.
In Nadan, the High Court of Fiji was asked to consider the validity of s 175 of the Fijian Penal Code, which criminalises carnal acts that are ‘against the order of nature’. The facts of the case were than an Australian man, McCosker, and a Fijian man, Nadan, had engaged in private and consensual acts of homosexual intercourse and were charged pursuant to ss 175 and 177 that they had engaged in carnal acts ‘against the order of nature’, and acts of ‘gross indecency’. The court of first instance convicted both men, but in the High Court the appellants argued that ss 175 and 177 were constitutionally invalid on the basis that they infringed provisions concerning privacy, equality and freedom from degrading treatment. The court found for the appellants, quashing their convictions, as well as reading down the offending sections so that they would continue to operate only in relation to non-consensual sexual acts. The result is that statutory provisions continue to operate in Fiji that prima facie criminalise certain sexual acts on the basis that they are ‘against the order of nature’, rather than because they are non-consensual. The High Court in Nadan did not hear argument in relation to the appropriate definition of an act that is ‘against the order of nature’, such definition not being provided in the Penal Code, and perhaps as a result did not in its decision revise its position in relation to the casting of private consensual sexual acts of adults as unnatural.
The issue is of course much wider than Fiji. Similarly constructed provisions continue to exist in statutes in many former British colonies that inherited and continue to apply the Penal Code. The general form of the relevant provisions is that they make it a crime to engage in a carnal act that is ‘against the order of nature’. For example the Fijian law that was considered in Nadan reads as follows:
175. 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 fourteen years with or without corporal punishment.
Whereas the Indian and Singapore laws are identical to one another and read:
Section 377 Unnatural Offences
Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animals, shall be punished with imprisonment for life, or with imprisonment for a term which may extend to 10 years, and shall also be liable to fine.
These provisions require courts to determine whether a particular sexual act is ‘unnatural’ or ‘natural’, or in what context a particular act becomes ‘unnatural’ where it would otherwise be ‘natural’. Just what is an ‘unnatural act’ and what makes such acts ‘unnatural’? The issue is far from settled, with different jurisdictions applying natural legal rhetoric to yield extremely variable results. In my view this inconsistency between judicial positions points to a deeper inconsistency in the philosophy of natural law itself.
The idea that certain sexual acts are unnatural is itself a product of natural law. According to natural law certain sexual acts constitute a disruption in the fabric of nature as ordered by God, who demands that human sexuality be confined to heterosexual genital coitus. The origin of the principle can be traced to radical Jewish writings in the 2nd century BCE that reinterpreted the myth of Sodom and Gomorrah so as to cast the sin of the Sodomites as that of homosexual intercourse and marginal writings in the following century that attributed to this sinful behaviour a disturbance in the very fabric of creation. These ideas influenced the formation of Christian doctrine on the subject, finding their way into the edicts of the early Christian emperors, the penal legislation of Augustine, and perhaps most influentially the writings of Thomas Aquinas whose Summa Theologica encapsulated two arguments in relation to anal sexual intercourse: (1) the traditional argument that anal sex is unnatural because it is contrary to divine law as set out in the Hebrew Bible; and (2) that anal sex is unnatural because it is inherently lascivious — producing venereal pleasure without any prospect of sexual reproduction.
Aquinas’ medieval theological arguments form the essence of the reasoning subsequently adopted by courts in sodomy cases in many jurisdictions. In some cases this judicial reasoning employs openly theological language, and in others the court makes some attempt to present its decision in language that appears to be rational and scientific. For example, cases from the United States have consistently applied openly theological language, frequently citing the Sodom and Gomorrah myth as authority for the proposition that homosexual intercourse and fellatio are ‘unnatural’ as well as the commentaries of Blackstone and Coke both of which reveal a theological position in relation to unnatural sexual acts. A Puerto Rican court has at least on one occasion cited the Summa Theologica as authority for the premise that homosexual intercourse is ‘unnatural’. Meanwhile in Singapore, and to a lesser extent in India, courts over the last century have tended to avoid theological rhetoric in favour of scientific-sounding language.
Many would regard as uncontroversial the statement that natural law cannot withstand the challenge posed by logical positivism. Hume in his Treatise on Human Nature argued that even if it were possible to establish that something does appear consistently in a certain form in ‘nature’, it would not follow from this conclusion that it is ‘right’ or ‘correct’ that such a thing remain in that form. Further, it is quite impossible to arrive at a universally acceptable definition of nature itself. As Derrida pointed out, nature and culture form a binary pair. The two concepts supplement one another but are also mutually deconstructive, because the definition of each is inherently dependent on that of the other. It is thus impossible to draw a satisfactory line between nature and culture, or the natural and the unnatural. Nature is in fact a term that means different things to different people in different contexts.
The shifting and unreliable nature of the term ‘nature’ renders impractical the application of natural law to judicial determinations of whether a given sexual act is ‘natural’ or ‘unnatural’. This is the case whether the rhetoric employed by courts is theological or ‘scientific’.
The above can be illustrated with reference to case law. An example is the Indian decision of Khanu v Emperor in which the court was required to determine whether fellatio constituted an act of ‘carnal intercourse against the order of nature’ for the purpose of section 377 of the Indian Penal Code. In that case the court wrote the following:
Section 377 punished certain persons who have carnal intercourse against the order of nature with inter alia human beings. Is the act here committed one of carnal intercourse; if so it is clearly against the order of nature, because the natural object of carnal intercourse is that there should be the possibility of conception of human beings, which in the case of coitus per os [fellatio] is impossible.
The position of the court was thus that ‘natural’ sexual intercourse is restricted not only to heterosexual coitus, but further only to acts that might possibly result in conception. Such a formulation of the concept of ‘natural’ sex excludes not only the use of contraception, which is likely to have fallen outside the hegemonic view of normative sexuality at the time, but also heterosexual coitus where one or both partners are infertile, or during the ‘safe’ period of a woman’s menstrual cycle. It is perhaps unnecessary to state that the formulation also excludes oral sex between heterosexual partners and any homosexual act whatsoever.
I include Khanu v Emperor in the present discussion primarily because it was subsequently considered by the court in the 1996 Singapore case of Public Prosecutor v Kwan Kwong Weng, another decision in which the court applied apparently ‘scientific’ reasoning in order to characterise fellatio for the purpose of criminal legislation. In Kwan Kwong Weng the court rejected the reasoning in Khanu v Emperor because its implications in relation to what the court regarded as the ‘normal’ heterosexual practices of adults living in modern Singapore were unacceptable. The court then went on to formulate a more complicated but equally inconsistent definition of a sexual act ‘within the order of nature’. The issue in Kwan Kwong Weng was again whether fellatio constituted ‘carnal intercourse against the order of nature’ pursuant to section 377 of the Singapore Criminal Code, and the court applied the following reasoning in delivering its judgment:
… from a biological point of view, that being the only sensible point of view to take, sexual intercourse in the order of nature is the coitus of the male and female sexual organs. Whether that coitus is for the purposes of procreation or not in our view is quite immaterial. Any other form of sexual intercourse would, it must follow, be carnal and against the order of nature. We use the word ‘carnal’ in the sense that it is lustful.
So, prima facie, fellatio between a man and a woman would be carnal intercourse against the order of nature. However, it is a fact of life, in humans as well as in animals, that before the act of copulation takes place there is foreplay to stimulate the sex urge. Kissing is the most common although there are several others. And here we quote from that well known treatise, Psychology of Sex by Havelock Ellis (12th Ed) at p 41 (also quoted by Sheth J in Lohana):
While the kiss may be regarded as the typical and normal erogenic method of contrectation for the end of attaining tumescence, there are others only less important. Any orificial contact between persons of the opposite sex is sometimes almost equally as effective as the kiss in stimulating tumescence; all such contacts indeed, belong to groups of which the kiss is the type. Cunnilinctus (often incorrectly termed cunnilingus) and fellatio cannot be regarded as unnatural for they have their prototype forms among animals, and they are found among various savage races. As forms of contrectation and aids to tumescence they are thus natural and are sometimes regarded by both sexes as quintessential of sexual pleasure, though they may not be considered aesthetic. They become deviations, however, and thus liable to be termed ‘perversions’ when they replace the desire of coitus.
…when couples engaged in consensual sexual intercourse willingly indulge in fellatio and cunnilingus as a stimulant to their respective sexual urges, neither act can be considered to be against the order of nature and punishable under s 377 of the Penal Code. In every other instance the act of fellatio between a man and a woman will be carnal intercourse against the order of nature and punishable under s 377.
An analysis of the above judgment reveals that the court adopted a number of premises. The first is that it should make judgments purely in secular terms and ‘from a biological view, that being the only sensible point of view to take’. The second premise, although it is presented as a conclusion reached on the basis of the first, is that natural sexual intercourse is ‘the coitus of the male and female sexual organs’. The third premise is that the question of procreation is an ‘immaterial’ consideration for the purpose of characterising a sexual act as ‘natural’ or ‘unnatural’. The court’s subsequent conclusion — that fellatio is prima facie ‘against the order of nature’ — flows naturally from what is postulated above. However, the court goes on to quote a psychologist as authority for the principle that while fellatio and kissing are ‘natural’ acts when engaged in as an ‘aid to tumescence’, when they take the place of heterosexual coitus they become ‘deviations’ and thus ‘perversions’. The result of all this, according to the court, is that heterosexual fellatio in which the male partner does not ejaculate, and which is followed by heterosexual coitus, irrespective of whether that coitus has any prospect of resulting in conception, is an act ‘within the order of nature’, whereas any other form of fellatio, that is heterosexual fellatio in which the male partner ejaculates, as well as any homosexual activity, are ‘against the order of nature’.
The approach of the court in Kwan Kwong Weng is noticeably awkward. In the first instance, while the court’s first premise — that it should apply rationality rather than theology to the problem at hand — appears sensible, the court’s second premise — that ‘natural’ sexual intercourse is ‘the coitus of the male and female sexual organs’ — is not accompanied by any definition of the term ‘natural’. If, as would seem to be the case, by ‘natural’ the court means ‘occurring in nature’, then ‘biological fact’ is inconsistent with the premise that heterosexual coitus is the only form of sexual intercourse that occurs in nature. Bagemihl in his survey of homosexual behaviour in about 300 wild mammal and bird species concluded that animal homosexuality is extremely prevalent and takes many forms, involving both male and female homosexuality. These include complex courtship behaviours, kisses, ‘wuzzles’ and ‘necking’, mounting (which in certain species includes male genital anal penetration), homosexual pair-bonding and homosexual parenting. Despite Ellis’ contention that such behaviour occurs only as an ‘aid to tumescence’, such behaviour in certain animal species frequently involves male ejaculation. Consider as an example the following description of male homosexual intercourse in orang-utans:
Orang-utans engage in a variety of homosexual activities, including a range of different sexual techniques and various affectionate and pairing behaviours. Mounting among male Orangs, especially younger adults (10–15 years old) and adolescents (7–10 years old) often develops into full anal intercourse, with erection of the penis, pelvic thrusting, penetration, and ejaculation. In a more unusual type of homosexual penetration, a male sometimes tries to insert his penis into the small hollow formed when his partner’s penis retracts. Another prominent homosexual activity is fellatio (oral-genital contact): one male will lick and suck another’s erect penis. In some cases, males take turns fellating each other. Males occasionally also fondle and touch the erect penis of another male, often examining the organ closely by parting the hairs in the genital region.
To argue that ‘biological fact’ dictates that only heterosexual coitus is a natural sexual act is therefore contrary to scientific observations of animal behaviour, as well as a growing body of scientific investigation which appears to demonstrate that homosexuality is both biologically based and normal in humans. The court’s reference to ‘biological fact’ points conspicuously to a restatement of theological doctrine in an apparently secular guise. Foucault in History of Sexuality pointed to this phenomenon, whereby theological principles about sexuality are restated in pseudo-scientific terms in order to create an apparently ‘scientific’ basis for discourses supporting the repression of the ‘fruitless pleasures’ — activities that are not sexually reproductive. Foucault argued that these discourses, both church and state, were aimed at, and succeeded to some extent in, constructing an ‘economically useful and politically conservative’ hegemonic conception of sexuality.
The court’s third premise — that it is immaterial to the present discussion whether the heterosexual coitus in question could possibly result in conception — reveals that the court in its reasoning has equated the term ‘natural’ with the concept of something normative. In other words, since it is commonplace for heterosexual couples to engage in coital intercourse that cannot be sexually reproductive, this must be ‘natural’. This reasoning is applied inconsistently by the court, which does not extend its application to homosexual intercourse of any kind, or heterosexual fellatio that results in ejaculation — both of which are also widespread human behaviours. This seems to suggest that the decision arises from an aesthetic consideration rather than a rational one.
The final premise is also unconvincing. By citing the work of a psychologist as the source of this premise, the court avoids making the most clearly theological pronouncement of all — that where non-coital acts are engaged in instead of heterosexual coitus, rather than as foreplay prior to it, such acts are inherently deviant and perverse. Presumably this is for the reason originally given by Aquinas — because such acts are ‘lascivious’. Taken to its logical conclusion, the passage cited by the court would make s 377 of the Penal Code applicable to heterosexual couples kissing in the privacy of their own homes if that kissing were not followed immediately by heterosexual vaginal coitus — a conclusion which no doubt was outside the intention of the court.
The court’s reliance on a psychological treatise is not a unique phenomenon in sodomy case law. For example in the North Dakota decision of State v Nelson the court relied on Krafft-Ebing’s Psychopathia Sexualis in rendering its judgment in relation to homosexual intercourse. Foucault wrote about this process, whereby the supplanting of theological law by ‘laws of nature’ results in an increased reliance on scientists and psychotherapists in order to explain the ‘causes’ of ‘normal’ and ‘abnormal’ sexual appetites and provide ‘tests’ and ‘cures’ for sexual deviance. While the language of the discourse has changed, the practices that are now framed as ‘unhealthy’ or ‘unnatural’ are in fact the same as those that were previously framed as ‘sinful’ or ‘lascivious’. An example of this phenomenon identified by Foucault was that of Freud’s genitally centred sexuality in which sexual behaviours other than heterosexual coitus were viewed as the result of psychopathological ‘fixations’ on infantile stages of psychosexual development.
Judicial inconsistency between jurisdictions at the edges of what is considered ‘unnatural’, particularly evident in a survey of cases on fellatio which is criminal in some Penal Code jurisdictions, legal in others, and legal only in limited circumstances in still others, is, as I have already indicated, illustrative of the problems inherent in attempting to characterise any sexual act as an ‘unnatural’ one. It is impossible to arrive at a satisfactorily enduring definition of what kinds of sex are natural. Attempts by judges to apply a ‘biological’ or ‘rational’ approach to sodomy statutes invariably result in the clothing of theological arguments as pseudo-scientific ones — as in Kwan Kwong Weng where the position adopted by the court was substantially similar to that of Thomas Aquinas. Whether framed scientifically or theologically such arguments are tenuous because they are drawn from natural law, and their result — the criminalisation of private sexual acts engaged in by consenting adults — is inconsistent with international law. Whether or not courts are in a position to strike down criminal legislation of this kind on a constitutional basis or on the basis of international legal obligations, the analysis that has been presented here points to a more appropriate solution arising from the construction of the provisions themselves. Since the definition of an act ‘against the order of nature’ is never given at statute, judges should consider applying a more rational perspective and find that no sexual act is ‘unnatural’, instead relying on legislators to make adequate provision for the criminalisation of non-consensual acts.
[*] ANDREW DAVIS teaches law at the University of Technology, Sydney.
© 2006 Andrew Davis
  FJHC 1.
 For up-to-date information about the status of legislation in various jurisdictions see the website of the International Lesbian and Gay Association at <http://www.ilga.org/countries.asp> at 31 January 2006.
 Harford Montgomery Hyde, The Other Love: A History and Contemporary Survey of Homosexuality in Britain (1970) 30–1.
 Derrick Sherwin Bailey, Homosexuality and the Western Christian Tradition (1955) 9–28.
 Hyde above n 3, 30.
 Saint Augustine Bishop of Hippo, Confessions (Henry Chadwick trans, 1998 ed) Book 3, Chapter 8 [trans of Confessiones].
 Saint Thomas of Aquinas, Summa Theologica (Timothy McDermott trans, 1989 ed) Second part of the second part, question 154, articles 11-12.
 Davis v State (1810) 3 H & J 154; Commonwealth v Pointdexter et al (1909) 118 SW 943, 944; Parris v State (1966) 190 So.2d 564, 565; State v Stokes (1968) 163 SE2D 771, 774.
 William Blackstone, Commentaries on the Laws of England Volume IV (first published 1765–1769, 1978 ed) 216.
 Edward Coke, The Third Part of the Institutes of the Laws of England (first published 1644, 1978 ed) 185.
 For example see Bowers v Hardwick et al.  USSC 194; (1986) 478 US 186 (Burger CJ).
 People v Santiago Vasquez (1967) 95 PRR 581, 584–5.
 Public Prosecutor v Kwan Kwong Weng  1 SLR 697; Lohana Vasantal Devehand & Ors v State (1968) Cr LJ 1277; Khanu v Emperor (1925) 26 Cr LJ 945; Khandu v Emperor (1934) 35 Cr LJ 1096.
 Patrick Parkinson, Tradition and Change in Australian Law (2nd ed, 2001) 43.
 Jacques Derrida, Of Grammatology (Gayatri Chakravory Spivak trans, first published 1967, 1998 ed) [trans of De la grammatologie].
 (1925) 26 Cr LJ 945.
 Public Prosecutor v Kwan Kwong Weng  1 SLR 697, 702.
 Ibid 703–4.
 The court erroneously cites ‘Hamelot’ Ellis as the source of the passage quoted. In fact the quote comes from the work of Havelock Ellis, Psychology of Sex (1933). The same passage was cited by an Indian court in Lohana Vasantal Devehand and Ors v State above n 13. It is difficult to speculate as to why the Singapore Court of Appeal chose to rely on such antiquated scientific material.
 Bruce Bagemihl, Biological Exuberance: Animal Homosexuality and Natural Diversity (1999)
 Ibid 13–14
 Ibid 15–18
 Ibid 18–20
 These species include Orang-utans, Rhesus Macacques, Bison and Bighorn rams: ibid at 19.
 Ibid 20–3.
 Ibid 23–6.
 Ibid 285.
 Joan Roughgarden, Evolution’s Rainbow: diversity, gender and sexuality in nature and people (2004).
 Michel Foucault, A History of Sexuality Vol 1, (Robert Hurley trans, first published 1976, 1979 ed) 37–41 [trans of: Histoire de la sexualité].
 Ibid 36.
  163 NW 278.
 Richard Krafft-Ebing, Psychopathia Sexualis, with special reference to contrary sexual instinct, (first published 1892, 1998 ed)
 Above n 30, 41.