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On the Legality of Homosexuality in Vietnam...

a posting by Frank on the VN-GBLF E-mail forum

As far as I've been able to determine, homosexuality has never been explicitly illegal in Vietnam (neither identity nor behaviors). The ancient legal codes of the Le Dynasty (1428-1787) and the Nguyen Dynasty (1802-1945) detail the penalties for crimes such as heterosexual rape, assault, adultery, and incest, but leave homosexuality unmentioned (Nguyen Ngoc Huy and Ta Van Tai 1987; Philastre 1909). The only provisions in the codes that may refer to deviant sexuality are the prohibition against "men who wear weird or sorcerous garments" (Le Code, article 640; Huy and Tai 1987,1:269) and that prohibiting castration and autocastration (Le Code, article 305; Huy and Tai 1987,1:183; Nguyen Code, article 344; Philastre 1909,2:552); Huy and Tai note that both provisions are not found in earlier Chinese codes (1987,2:174; 326). On the few occasions when homosexual activities seem to have been punished, they were treated as adultery (disregarding the fact that both partners were the same sex, and concentrating instead on the fact that one or both were married to other partners) or rape (if the sex was nonconsensual).

Vietnamese legal codes were typically influenced by then-contemporary Chinese codes, but when in 1740 the Ching Dynasty in China elaborated, "for the first time in Chinese history, punishment for sodomy between consenting adults" (Ng 1989:76; cf. Meijer 1985), the Vietnamese did not follow suit, once again omitting any such prohibitions in the Nguyen Code that was promulgated soon after. Nor did the French colonials institute explicit prohibitions against sodomy or pederasty in their colonies, since under the Napoleonic code they did not fall under the purview of the legal system (Sol and Haranger 1930,2).

Although homosexuality or sodomy is not specifically referred to anywhere in modern Vietnamese criminal law, "sex buying and selling in any form" are prohibited (Voice of Vietnam 1993), as are more general and diffuse crimes such as "undermining public morality." As Dao Xuan Dung and Le Thi Nham Tuyet point out in 1996, "The Vietnamese State has not yet had legal documents about homosexuality. Even in the latest Law on Marriage and Family (1986), there is not an article mentioning the State attitude or at least any guidelines for public opinion about this problem. The Penal Code doesn't mention homosexuality while it has articles on incest, rape, prostitution, sexual assault, child marriage" (Dung and Tuyet 1996:30).

The legal silence on homosexuality as such does not mean that Vietnamese authorities cannot find some legal basis for punishing homosexual behavior, since crimes such as "undermining public morality" can be used (as similar crimes of "public indecency" or "soliciting" are in the U.S.) to prosecute homosexuality.


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