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October 31, 2004 

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Your Advocate

Q. Dear lawyer, I want to know about the stand of Bangladesh's law and order system on "Homosexuality". It is important to know if Bangladesh still has laws that go against homosexuals. I hope you would give me a detailed answer to this question. I mean can homosexuals be prosecuted in Bangladesh solely on grounds of their sexuality?
Tanveer On E-mail.

Your Advocate: The stand of Bangladesh on homosexuality is very clear. This is considered to be a serious offence affecting private morality of persons and is strictly prohibited by law. Section 377 of the Penal Code says- "Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine. Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section."

Once you go through the law quoted above, I hope, you will get the answers of your queries. Law is so clear on this point that a plain reading will at once lay bare its spirit, nature and intent. This being a penal clause providing punishment it would not be difficult for you to understand that there cannot be any punishment/penalty without prosecution. Therefore, prosecution, being necessary corollary, will follow the charge of unnatural offence of any kind including homosexuality.

It follows, therefore, that in Bangladesh there is law that goes heavily against homosexuals and that homosexuals are liable to prosecution on ground of their sexuality alone.
The answers to the queries patent in your words are sought to be so far given. But in view of the overtone of your query, which is suggestive of oddly curious position of Bangladesh in this regard, I feel like adding a few more words. As I understand, you have indicated the legal position touching upon the question of private morality of consenting adults. You are not unaware of the nature and kind of our society, which is, essentially tradition-bound, conservative and non-permissive. The conservative and traditional attitude towards sex-.morality is not only true of Bangladesh it is true of the overwhelming majority of the countries of the world. In the advanced societies of the West conservative sentiments and values are still found to influence decisions at all levels. Therefore, there must be reflection of the society in its laws. Where sexual behaviour offending against natural order is an offence, consent is immaterial. In case of sexual behaviour contemplated in Section 377 of the Penal Code question of 'consenting adults', to my mind, is of no avail. There is no, at least I have not come across any, decision of the Supreme Court on this point.

In many western countries homosexuality is no more an offence. But gay rights, same-sex civil marriage, rights of the same-sex couple's etc. are concepts that are currently gaining ground in those countries not yet widely sanctioned by the society or law. With the peculiar background of homosexuality in the most advanced societies you can easily guess, instead of being bemused the position of homosexuality in a society where sex is by and large, a taboo.

Your Advocate M. Moazzam Husain is a lawyer of the Supreme Court of Bangladesh. His professional interests include civil law, criminal law and constitutional law.


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