Decolonizing Decriminalization Analyses: Did the Ottomans Decriminalize Homosexuality in 1858?

Abstract

Assessments of the decriminalization of homosexuality are rarely questioned. It is widely accepted that the Ottomans decriminalized homosexuality in 1858 owing to the absence of penalties assigned to private same-sex intimacy. The reason for this misanalysis rests upon the universalization of the Western formula for the decriminalization of homosexuality. This assumption about the Ottomans has been made without examining how they had criminalized homosexuality in the first place. Two penal cultures that criminalized homosexuality differently cannot decriminalize it by way of the same legal framework. The current method excludes, moreover, the subject country’s history. This elicits neo-orientalist conclusions such as the Ottomans’ decriminalization of homosexuality in 1858 via the introduction of the 1810 French Penal Code, without an accompanying examination of how the Ottomans had criminalized homosexuality before 1858. This assessment method not only facilitates neo-orientalism, but also casts a significant doubt on this method’s validity.