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ABSTRACT
This paper explores the representation of queer men’s unequal sexual citizenship in Sri Lanka in a Sri Lankan Anglophone play, focusing on its problematisation of an ambiguous ‘sodomy’ prohibition. I examine The One Who Loves You So (2019), a text in which the illegality of queer men’s offline and online intimacies is paradoxically depicted as both affirmed and open to interpretation. The textual analysis is contextualised by the Sri Lankan state’s consistent history of equivocating on who or what the country’s ‘sodomy laws’ criminalise, particularly when facing international human rights pressure. The state’s equivocation is surprisingly overlooked or dismissed as strategy in most current scholarship and activism: the trend is to think in terms of a hard state stance and a categorical criminalisation. The play lays the ground to grapple with the work done by equivocation, for instance in insidiously regulating same-sex intimacy and marking the conditional status of queer sexual citizenship in Sri Lanka. I plead for attention to the play’s intersectional approach, in particular how queer privilege/disprivilege mediates gradations of empowerment and disempowerment in an uncertain legal situation. The essay argues for moving beyond the idea of strategic evasiveness to recognising a state politics of equivocation on decriminalisation.
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Correction Statement
This article has been corrected with minor changes. These changes do not impact the academic content of the article.
Notes
1. The formulation ‘sodomy laws’ is used provisionally in this paper, as a convenient shorthand common in the literature on this subject. The use of inverted commas signals that it should be treated as a construct, and that neither the colonial and post-colonial meanings of ‘sodomy’ nor what is encompassed by this category is self-evident or fixed.
2. Section 365: ‘Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be punished with fine and where the offence is committed by a person over eighteen years of age in respect of any person under sixteen years of age shall be punished with rigorous imprisonment for a term not less than ten years and not exceeding twenty years and with fine and shall also be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for injuries caused to such person.
Explanation - Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section’. (Penal Code 389E).
3. Section 365A : ‘Any person who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any person of, any act of gross indecency with another person, shall be guilty of an offence, and shall be punished with imprisonment of either the description for a term which may extend to two years or with fine or with both and where the offence is committed by a person over eighteen years of age in respect of any person under sixteen years of age shall be punished with rigorous imprisonment for a term not less than ten years and not exceeding twenty years and with fine and shall also be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for the injuries caused to such person’. (Penal Code 389F).
4. The reply was, ‘Article 12 of the Constitution recognizes non-discrimination based on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any one of such grounds as a Fundamental Right. This measure protects persons from stigmatization and discrimination on the basis of sexual orientation and gender identities’. See Human Rights Committee. (17 September 2014). ‘List of issues in relation to the fifth periodic report of Sri Lanka: Addendum: Replies of Sri Lanka to the list of issues’. CCPR/C/LKA/Q/5/Add.1, 10.
5. The reply was, ‘Article 12(1) of the Constitution of Sri Lanka provides that all persons are equal before the law and are entitled to the equal protection of the law. Article 12(2) of the Constitution ensures that no citizen shall be discriminated, inter alia, on ground of sex. In this context, it must be noted that laws discriminatory of a person on the grounds of sexual orientation would not be constitutional. However, noting the concerns expressed by some parties, regarding the provisions 365 and 365A of the Penal Code, it must be stated that the said provisions are not utilised to target any particular group, but to preserve public order and/or morality’ (Mendis 49–50).
6. See Police Station, Maradana v Wimalasiri, SC Appeal No 32/11, SC SPL LA No 304/2009, HCMCA No 595/04, Magistrate’s Court of Maligakanda, No 7923/C.
7. See ‘Colombo Chief Magistrate dismisses case against three gay men for homosexuality’, Daily Mirror, 10 December 2021.
8. See ‘Wattala court dismisses case filed against a lesbian’, Newswire, August 2, 2022.
9. See S. Fazal, ‘Indo-SL lesbian couple seeking matrimony released’, The Morning, 28 June, 2022.
10. See Rosanna Flamer-Caldera v. Sri Lanka (CEDAW Communication No. 134/2018).
11. In Macaulay’s own words, he was ‘unwilling to insert, either in the text or in the notes, anything which could give rise to public discussion on this revolting subject’, as the corruption of public morals that would presumably result would not ‘compensate for any benefits which might be derived from legislative measures framed with the greatest precision’ (Report of the Indian Law Commission on the Penal Code, October 14, 1837, pp. 3990-91 qtd. in Gupta 17).
12. Cabinet spokesperson, Dr Rajitha Senaratne, said ‘We are a Buddhist country and we too are against it’, but that ‘No one is being arrested for it. It (the homosexual act) is not done in the open. So how can you prove it?’ See P.K. Balachandran, ‘Sri Lankan cabinet decides not to de-criminalize homosexuality’, The New Indian Express, 18 January 2017.
13. I am grateful to Thilini Perera, who conceived the play’s production design, including the rotating stage, for sharing her insights.
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Shermal Wijewardene
Shermal Wijewardene is Senior Lecturer at the Department of English, University of Colombo