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Wednesday, 14 September 2011

Paper: From Sodomy to Safety? The case for defining persecution to include unenforced criminalisation of same-sex conduct

Homosexuality mapImage via Wikipedia
By S. Chelvan, Barrister No5 Chambers, UK

Asylum duty-bearers have concentrated for too long on the ‘privacy’ of the bedroom as providing a safe haven from where Lesbian, Gay and Bisexual asylum seekers can conduct their ‘sex’ lives, without fear of harm, even where such conduct is criminalised. This working paper seeks to address this misconception head on, drawing the decision-maker outside the bedroom, out of the front door and into the ‘outside world’, where expression of identity, or identification of agency, is governed by the threat of harm flowing directly out of a fear of arrest, detention, torture and in some cases, execution.

Criminalisation is the great enforcer, whether actual criminalisation of same-sex conduct is actually enforced. This common narrative in the life of LGB human beings exists even in nations of the Global North.

In countries where there exists no effective state protection, then the ability to be ‘open and live freely’ is directly affected, and this results in the ‘fear’ of persecution. This paper drives force in this notion from cases in Italy, Austria and the United Kingdom, drawing on the 2004 Refugee Qualification Directive as a primary source of European Law, to enable harmonisation of this issue on a European level.

From Sodomy to Safety? The case for defining persecution to include unenforced criminalisation of same-sex...
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