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On April 27, 2024, the Iraqi Parliament voted on the text of the amendment to the Anti-Prostitution and Homosexuality Act, which included punitive texts for homosexuality, transvestism, and sex transition. The reasons for the law were as follows: “In harmony with human nature and human instinct, upon which God Almighty created man, male and female, and to preserve the entity of Iraqi society from moral decadence and calls for homosexuality that have invaded the world, and due to the absence of deterrent punishment in Iraqi legislation for acts of homosexuality and those who promote them, this law was enacted.” In this article, I want to discuss this law as a means of regulation, alongside religious and social regulation, for the case under consideration and to consider the possibility of its success in regulation, given its objectives and regardless of them again.
Legal regulation:
The law addresses three cases: Improper sexual acts, which means any practice that violates healthy sexual customs, such as prostitution or trafficking in it, wife swapping, homosexuality, and other similar cases; effeminacy, which means males resembling females, sex change, and promoting any of these cases.
The amendment was aware of the problems of conflicting laws, so it was keen to confirm the superiority of its texts over other current and subsequent laws and agreements and to cancel previous texts that deal with the same topics. These are all good measures to maintain the stability of the application of legal rules that previous texts in all acts lacked.
However, the text had a dominating punitive tone, which is a flaw in it, but it does not diminish its importance. I mean by this that modern criminal laws have settled on following a scientific approach in achieving the purposes of the regulation that they were enacted to achieve, and this is what was absent in the act, as it settled on the principle of confronting crime with punishment or getting rid of the criminal for the longest possible period. perhaps the amendment texts reveal to us the goals of the regulation.
The objectives of this regulation:
By examining the texts, we can outline some of the objectives that the legislator had in mind when formulating the legal texts:
1- Preventing prostitution and homosexuality by force or consent.
2- Preventing illicit sexual relations.
3- Preventing sex trafficking.
4- Preventing sex transition operations except for medical needs.
5- Preventing the promotion of sexual behaviors that are outside of human nature.
Although it is still too early to evaluate the practical application of the law, we can predict some aspects by looking at the society in which it will be applied. Homosexuality in Iraq as a phenomenon is represented by prostitution and homosexuality in terms of bisexuality, which also takes the form of prostitution. Iraq is a victim of Western pressure to accept these trends, like other countries that take the same opposing position, which prompts us to request an additional legislative approach. But the truth is that the law viewed the homosexual as a criminal, and the truth is that the majority in Iraq are actually criminals, as they practice these acts either by force or through prostitution. But a problem like this cannot be solved with this legislative policy. In fact, it is not surprising that the cases of homosexuality increase, but rather that the voices supporting their interests and opposing the law are rising. This began with the statement of US State Department spokesman Matthew Miller and the Human Rights Watch (HRW) organization, but the truth is that Miller and the organization do not have a history that allows them to comment on Iraq’s legislative policy. For example, the organization was against the decision to prohibit drugs in the United States. It would present individual stories of how American families were devastated by the imprisonment of one of their members for possessing a small amount of drugs, but would ignore the damage that drugs cause to the entire country and to the lives of the individuals whose names it cited (1).
The problem with the legislative policy of this amendment is nothing but a result of the societal view of homosexuality. I mean here the homosexual because of his personal inclinations, as Iraqi society views such people as criminals such as thieves and murderers. The problem with this view is that the criminal is treated as in ancient times by isolating him from society for the longest possible period. And in light of the current global situation, the increasing call for this phenomenon will only increase its spread.
The LGBTQ+ community always appears peaceful and defends the rights of all the oppressed, even if they are not homosexuals. They are even very welcoming to all groups. There is no racism among them, and the letter Q stands for queer. An individual does not even need to be gay to be part of a community that includes it. It is enough for him to not be sure of his sexual orientation. On the other hand, It benefits from any violent response to them, as it appears to be a barbaric, backward attack on modern, advanced ideas.
We will discuss the reasons for this phenomenon at the end of the article. But here we can imagine why the law that views the homosexual as a thief and murderer has not succeeded in preventing the spread of homosexuality.
This situation is divided into two aspects. The first is the traditional aspect in Iraq, where homosexuality is practiced, such as prostitution. I think that the amendment was successful in this aspect. Criminalizing acts explicitly and emphasizing the deviant ones is a good legal treatment in abstraction. It cannot be denied that this process will not succeed in preventing crime in the long term, but that is due to the non-reformative nature of prisons in Iraq, not the text of the amendment. Reforming them requires restructuring the system of the reformative institutions, which is not impossible, and I claim that it is not difficult if taken seriously.
Also, the spread of the law in the traditional media and social media took care of the issue of defining the law instead of stopping at the availability of knowledge. I have previously discussed in my writings that when the law’s mission is to suppress crime through reform, which is the ideal solution, the impact of the text on the minds of the public is as important as its very existence, meaning that everyone’s knowledge of the existence of the law and the penalties resulting from these actions contributes significantly to achieving its goals. This was of course a coincidence, as the law spread because it concerns the conservative Iraqi society and not as a result of a legislative policy that gives this importance to defining the rules in society.
The second aspect of this crime is promoting it as the normal state, i.e., promoting homosexual rights. The amendment addressed this state as we mentioned by promoting it, but confronting these acts by throwing the accused in a cell will only cause the state to spread in the long run, and I can draw this conclusion from the following analysis:
This amendment is a result of society’s opinion of homosexuals and those who advocate for their rights. It views them as criminals like the people of Lot, but the truth is that we—as students of law—know that the criminal is nothing but a victim. The advocate of homosexual rights believes that they are only defending human rights, and we, in return, deprive him of these rights, not to mention the Western and international, and soon Arab, encouragement of this phenomenon. It will inevitably spread as long as we confront it without understanding its nature. Where did it emerge from? When did it spread? What is the philosophy of those who advocate it? What are their arguments? Do our philosophy and arguments confront theirs?
The bottom line is that we will lose this battle as long as we confront the idea with a sword.
The Prophet of God, Lot, peace be upon him, continued to advise and dialogue with his people for many years before God decided to punish them, meaning that these people were given the opportunity for treatment. We must take the same position. We must understand the reason for this thought and its dimensions, determine why we hate it, and compare the arguments. This does not mean opening a dialogue. Here we are setting out what the authorities must do, and giving the right to public dialogue means the inevitable attraction of a group to these ideas. It is the duty of the authorities to monitor the ideas presented to their society.
Reasons for accepting the spread of homosexuality:
We are people of an ideology, so it is shameful to confront a thought with force. This requires us to understand our beliefs, their dimensions, and their results, and in return, to understand the dimensions and results of the opposing thought. In this paragraph, I want to present some broad outlines from which the reader can start in understanding the position of those who defend homosexuals and why he would opposes them, so that he can evaluate the position and delve into it if he wants. Before that, I would like to point out that these broad outlines may be all I have in terms of ability to present the subject.
We Arabs have scholars who have written the subject in the most precise details and analyzed it socially and psychologically. The result of what I read was that the deviant person or the one who is convinced of this condition is a victim of a social ideology that confuses humans with animals. These ideas are generated as a result of the secular individualist philosophy. Individualism convinces humans that he can do whatever he wants as long as he does not harm anyone directly. Secularism convinces him that harm is not real unless it is material. Secularism values everything relatively, i.e., there is no absolute value. The value of everything changes according to the circumstances and situation. As a result, some concepts that are absolute in reality, such as morality, faith, love, and honesty, are placed in a relative position. Then, when man does not have a fixed concept on which to base his ideas, man becomes exactly like a wild animal. The animal does what it wants according to external circumstances. It either eats its prey alive or a carcass if circumstances force it to do so. These circumstances are called nature or matter. When man has no constant that separates him from nature, he submits to it and its laws and then merges with it. Perhaps we can take a step back now and remember that man has tamed nature and controlled it because he is separated from it. We must not forget that man has two sides: an animal side that must submit to nature and another absolutely human side that leads the animal side and tames nature under the authority of his thought.
From here we realize that humans whose governed by their morals and his objective religion. Natural conditions are not of great importance to him. they may prefer death rather than humiliation or prefer to starve tomorrow as long as he shares his food today. All of this happened in Palestine, Sudan, and the Congo this year before our eyes, and it is not a new thing. Therefore, sex is not really important in changing his inclinations. It is nothing but a natural need that the human side tames. Whether man or woman, as long as he possesses constants such as morals that separate him from nature and enable him to tame his senses, sex—even healthy sex—will not be of great importance, but rather it will be a need that humans takes in the necessary amount and in the correct form.
As evidence of this conclusion, we can see that the source of secularism and individualist thought is France, the United States, and Canada. These countries are the largest societies for homosexuality and unhealthy sexual habits (a statistic showed several years ago that 60% of French people were conceived by their mothers out of wedlock) (2). As for the other countries, they gradually accept this phenomenon according to the extent of control over them by those first countries, such as Thailand, South Korea, Italy, and even Lebanon. Lebanon is struggling between Arab and Western influence and is the Arab country with the most widespread calls for homosexual rights. On the contrary, we find that in countries that were not based on secular or individualist thought and did not submit to control, their societies do not support homosexual rights, such as Russia and China. The summary of this paragraph is that the thought related to homosexual rights is linked to secular and individualist thought. The Arab world is still standing in opposition because it adheres to human constants. We are sliding into the abyss of acceptance and submission because we do not realize these constants and their value.
The required moves:
“I was talking to one of my professors, a man of distinguished ideology, may God protect him, about a topic in one of my research papers, and he pointed me to a verse from the Holy Quran. I told him that when you point me to a verse, there is no longer room for analysis, so you are definitely right. But how do I explain that to the atheist world? He replied that our religion addresses the mind.”
We, the private institutions concerned with education and teaching, as well as the public institutions, must review this thought that contradicts our views, evaluate it. We must refrain from violence and condemn it, because every action has an appropriate reaction. We must receive those who are convinced by this thought and surround them with the necessary security to reform them. Let us not forget that we are trying to reform the thief and the murderer, so why don’t we reform those with disturbed principles?
This falls on all authorities, especially the executive, and on private and voluntary educational institutions, as I mentioned. Let us not forget that this proposal is by no means a generalization. Accepting homosexuality and abandoning some constants makes a person the ideal consumer. An Arab abandoning his Arab identity allows him to consume the goods of his enemies, and a Muslim abandoning his Islam allows him to consume goods produced by the dirtiest, harshest, and cheapest means. Therefore, the spread of encouragement of homosexuality plays the role of a cog in a large machine. If we are discussing victims here, there are those who are paid, and they must be confronted with an appropriate response—not killed or tortured, but punished with the correct and appropriate punishment. Differentiating between the victim and the criminal, and the victim criminal, is a task that legal experts have undertaken since ancient times.
resouces:
Statement by Human Rights Watch entitled: United States: The Catastrophic Toll of Criminalizing Drug Use Laws Destroy Families and Undermine Health.
A report on Al Jazeera website entitled: 60% of French children are born out of wedlock.