by M. Thompson
Under Section 156 therefore, the State must establish where mere indecency ends and where gross indecency begins as mere indecency is no offence under Section 156. That is the observation of the Defence. (Criminal Case Number 259 of 2009)
The two accused persons stand charged with three counts. The first count relates to the first accused person Steven Monjeka Soko. He is charged with buggery or having carnal knowledge of the second accused person Tiwonge Chimbalanga Kachepa against the order of nature. This is contrary to Section 153(a) of the Penal Code. Under the second count Tiwonge Chimbalanga Kachepa is also charged with buggery or a charge of permitting the first accused person to have carnal knowledge of him against the order of nature. This is contrary to Section 153(c) of the Penal Code. In the alternative, both accused persons are charged with the offence of indecent practices between males contrary to Section 156 of the Penal Code.
The law has a pornographic imagination, coded with words like “buggery” and “indecent,” justified by codes in books that provide intelligibility. Disgust coded into legislation. Indecent. As children, we termed everything that made us uncomfortable “bad manners.” A colonial inheritance, I used to think. But no. A hybrid, hydra-headed creature, invented to manage the ruptures and hybridities of colonial modernity. Bad Manners. Caught between then and now, who we were and who we wanted to be. The Malawi case is about Bad Manners. Legislation against nettle-stung nerves.
The simple facts of this case that are not in dispute are that both Tiwonge, also known as Aunt Tiwo, and Steven are men. They are of sound mind. At one point they associated themselves with a certain Christian Church called Abraham Church where Tionge performed womanly chores. Finally on 26th December 2009 they were successful to conduct an engagement ceremony or Chinkhoswe at Mankhoma Lodge in Blantyre. This is a place where Tiwonge was staying and working.[the court document shifts between Tiwonge and Tionge, as though unclear of its object, unsure of its subject, scared to be precise. Such “slips” are telling, psychoanalysis tells us]
Lineaments begin to emerge. The two are men. Gender identity is fixed. This case is about gender transgression. The transgression of a man who “feigns” womanhood, who performs “womanly chores.” What happens when men perform “womanly chores”? Something is threatened, something that must be preserved, something that, perhaps, is not clear is threatened. Gender Trouble. The facticity of manhood is at stake. The making of womanly work, work that women do, work that produces women, is also at stake. This is a transgression against labor. Against work. We cannot lose sight of this. Their offence is to invade the gendered space of work, the work that women do. Tiwonge works “under false pretenses,” and this work sustains intimacies. Intimacies that gendered work, work understood as gendering, should not sustain. Let us not forget this.
Chinkhoswe. A foreign word. A word that is a metonym for culture, for authenticity, for purity. No matter its actual meaning. It cannot simply be “an engagement” No. It needs this modifier. We need to reminded that the law might have a colonial origin—indecency, buggery, such colonial terms—but it operates in an African setting. The offence is against Chinkhoswe.
Chinkhoswe, I dip into scholarship. A glossary offers “marriage surety or guardian of a partner to a marriage.” Cryptic. I feel lost. Cultures are not words with foreign OEDs. I persist.
By chance: Malawi Law Journal.
Section 22 (5) of the 1994 Malawi Constitution “provides for the recognition of marriage by custom. . . . [M]arriages contracted according to customary laws are valid. Thus, persons who are party to such marriages are entitled to all rights applicable to married persons.” (Mwambene 2007).
Persons. Such an odd, gender-neutral term. Does the Constitution use the term persons? Or is this Mwambene’s phrasing? Much is at stake in this, too much.
Mwambene argues that “the right to culture enjoys the same status as all other rights in the Malawian Bill of Rights.” The right to culture. Culture must be defended.
And marriage must be defended. This gets difficult as, Mwambene notes, “There is no comprehensive law in Malawi that deals with rights pertaining to marriage. Separate systems of laws apply to different forms of marriage” (2007). In the absence of comprehensive laws, marriage must be managed, gendered in particular ways. But I get ahead of my reading.
A footnote: “In Malawi, there are two customary marriage systems. These are the patrilineal and matrilineal systems. Patrilineal systems are defined by lobola while matrilineal systems are characterised by chinkhoswe” (2007). Lobola is defined. Chinkhoswe is not, not yet anyway.
Some clarity emerges. So much hinges on this one word, Chinkhoswe:
Notes from a 1979 court case, as cited by Mwambene, elsewhere:
We know that marriage is a social agreement between two persons, but in order that such marriage may acquire legal recognition under traditional customary law, the agreement must be sanctioned by the establishment of chinkhoswe. And as it has been said in a number of cases, this court does not recognise any union or cohabitation as constituting a valid marriage in the absence of chinkhoswe. (2005)
A handy footnote:
Chinkhoswe: the ceremony whereby the two marriage guardians (from the man’s and woman’s sides respectively) formally meet and exchange their consent to the marriage in question. (Mwambene 2005)
A partial understanding, but one that is necessary. I try to resist here the sense of gay outrage, buttressed by human rights claims, which is inattentive to local meanings, to local situations, local specificities, and so can be ignored.
Intervention cannot be a loud shouting in a foreign language. I try, here, to cobble a guidebook, to understand what is at stake, even as I prepare my whisper.
Chinkhoswe is at stake here: a matrilineal practice of certifying marriages that the law must recognize. Chinkhoswe validates marriage. This is huge. Huge. It pits customary practices against legal judgments.
The accused have staged a revolution within their own cultural norms. I cannot process this yet.
Chinkhoswe is a productive process. It produces and sustains matrilineality. It produces and sustains in-law relations. It produces and sustains generational authority—marriages must be certified by one’s relatives. It produces and sustains the terms of kinship. And it produces and sustains gender. All of this is at risk in this revolution.
And so the court’s question: how to prove “buggery” and “indecent acts.”
The accused remain silent for the duration of the trial—this, too, needs parsing.
A doctor testifies that he does not know how to examine for evidence of “buggery” and is not aware of any doctor in Malawi who does. Perhaps he needs to watch episodes of Law and Order. This strange statement, so strange, as though sex does not leave its mark. A reluctance to know how to read the marks that sex leaves. There is much to be said here about the labor of knowledge. Knowing can be taint. To know is, somehow, to be complicit. What is at stake? What does the doctor risk in daring to know?
Of the nine witnesses, including the male doctor, four are women. Three testify that they ask or compel Tiwonge to undress. They include his boss and a “friend” who lent garments for the chikhoswe. Duress is a problem in this case. And the testimony does not help.
Listen, for instance.
Flony Frank, a friend of Tiwonge’s, reads a newspaper that claims Tiwonge is a male.
She was annoyed. She together with a Mrs. Piringu went to Tionge’s house to hear the truth from the horse’s mouth. . . . She stated that Tionge then voluntarily took off her clothes and everyone there present including this witness saw that Tionge had the private parts of a male. [Flony Frank] then told the court that she discovered that the second accused person has male genitals though they did no look normal to her. She said Mrs. Piringu undressed herself to lead by example. During cross-examination, [Flony Frank] said that she with the other women made Tionge to undress.
The anger is familiar, the gender policing even more so. Of course the genitals will “no look normal.” How can they? Tiwonge/Tionge is being written on and written over, named and re-named, re-narrated. Tiwonge/Tionge’s histories are being re-though, made to line up with gender norms, to stay within the lines. Although this wavering name, this Tiwonge/Tionge/Tiwo resists such mappings.
(I am not sure that terming them “a gay couple” captures the richness of their sense of gendered configurations, and we lose the sense of how gender might be at stake, how femininity as well as masculinity might be threatened by their lives, their gendered practices, their re-writing of tradition.)
As much as I can, I want to be clear about my thinking here: this case is as much about legislating gender as it is about protecting tradition and punishing sodomy. Recent legislative histories in Malawi’s history that affect women are a key subtext, important in ways I cannot map here, at least not yet.
The evidence is, the judge admits, circumstantial. The two lived together and had a chinkhoswe ceremony. Under questioning, whether or not it was under duress, they confessed to having intercourse, anal intercourse. All of this is said by witnesses. The two remain silent. It is not clear what truth is or can be in this case.
Based on the circumstantial evidence, the two are condemned for gross indecency.
Steps to this judgment:
It was observed by Lord Woolf CJ. R v Smethurst (2002) Cr. App. R. 50 at p. 58 that the society is the ultimate guardian of decency.”
Therefore, the State argues, an engagement in a Malawian setting takes place between a man and a woman. Similarly only a man and a woman can live together as husband and wife.
The two accused person both being male were living as a husband and wife, says the state, and later they went further to have an engagement ceremony and this is conduct which is totally against the accepted moral standards.
The engagement and the living together as husband and wife of the two accused persons, who are both males, transgresses the Malawian recognized standards of propriety since it does not recognize the living of a man with another as husband and wife and two men having an engagement ceremony with each other. Both these acts were acts of gross indecency.
Indecency is defined by the Oxford Advanced Learners Dictionary (1989 4th Ed) as being indecent or doing indecent behavior and ‘indecent’ is defined as something offending against accepted standards of morality. [do dictionary definitions hold so much power in a law court? Especially Advanced Learners?]
Gross indecency: gender transgression, marriage transgression. Notice the absence of sex.
In his summation, the judge notes duress might have been present, wibbly wobbly, as he goes:
Confessions cannot be inadmissible at a mere suggestion that it was obtained by force. It must be proved that force was in fact used. Or the court must make a finding that force was in fact used. In fact even if force is used that fact goes to the weight to be attached to the evidence.
We can read the judge’s desire here.
[T]he Prosecution’s proof beyond reasonable doubt of a man who behaves like a woman and likes to be treated as such; the wearing of female clothes by one; the engagement or purported engagement of the two (to the extent of hiring a photographer); the soundness of their mind [as established by a psychiatrist]; their both being male; and the lie which Tionge had been telling people that he was a woman; all these leave us with one rational conclusion or inference leading to only the guilt of Steven having anal carnal knowledge of Tionge and Tionge permitting it by the anus c/s 153(a) and (c) respectively and thereby convict both of them of the offence of buggery. Otherwise the law would fail to protect the community.
[A]ll the offences carry with them a sense of shock against the morals of a Malawian society.
[T]he convicts have not shown any remorse. They actually seem proud of what they did. . . . Further the court is called upon to consider “the scar the case will leave on our morality.”
Interesting metaphor. Cases scar morality. Morality is a thin skin.
And the judge, to justify the sentence, invokes a case of terrorism, of hijacking, where the convicted demanded $5 million dollars or they would “blow up the aircraft.” This comparison is apt, as the judge’s sentiments prove.
I cannot imagine more aggravated sodomy [where Malawian morality is the victim] than where the perpetrators go on to seek heroism [a jab at the international recognition of the case, and where the local wants to assert its authority over the global] without any remorse in public and think of corrupting the mind of a whole nation with a chinkhoswe ceremony. For that [for violating and re-writing chinkhoswe?], I shall pass a scaring sentence [commit gender and sexual terrorism] so that “the public must also be protected from others who may be tempted to emulate their [horrendous] example.”
Society must be protected: Society must be scared: Another African Story
I have tried to construct, here, a basis from which to think about the homo-scandal of Malawi. It is a rickety structure, marked by my illiteracy in legal discourse, my lack of more knowledge about Malawi, my sense that activism must be grounded, and my utter and complete rage about this case.
Right now, there is a lot of stuff making the internet and mailbox rounds, petitions and so on, and I do support this work. At the same time, I am hoping that our responses will be attuned to what is at stake, that we will understand what this chinkhoswe ceremony threatened, and that we will take our lead from activists in Malawi.
To understand the scandal of this particular chinkhoswe as simply “another gay marriage” is actually a profound misreading, a truncated and partial one. And we need to read the court documents and Malawi legal documents and historical and anthropological documents if our engagements with this case aim to engage with Malawi, not simply read it as a case of African homophobia.
Clearly I’m procrastinating and I think you should, too.
I know we all have a Gaga and Beyonce obsession and I thought you’d like to take a quick break. Take a look at this short video and let me know what you think. These little girls GO HARD!
Ridiculous? Are these girls too young? What do their parents say? What is BEYONCE saying?!
A Newsweek journalist criticized gay actors claiming that “it’s ok for straight actors to play gay” but “it’s rare for someone to pull off the trick in reverse”. The article argues that out gay actors are not believable as straight characters and points specifically to Sean Hayes and Jonathan Groff. The article has spawned controversy and a response letter from Kristen Chenoweth**.
A recent poll of Maryland voters has found that 46% favor same-sex marriage and 44% are opposed while 10% have no opinion. Comparing this poll with those from previous years, it seems that Maryland voters are slowly shifting towards a majority favoring same-sex marriage and supporting the recognition of the rights of couples married in other states.
Recently the administration of Hope College in Michigan brought their policy on homosexuality up for a review. Hope College, a traditionally Christian college, was addressing the concerns of petitioners who began mobilizing in 2009 after the administration did not allow a screening of the film “Milk” to be held on campus.
All of these stories represent an array of differing aspects of the Queer/Race crossroads. The queering of individuals in the arts, in politics, and in education are all hot button issues going on at the moment. I thought that it was important to find articles that were both positive and negative. While the writer of the first article is, in my opinion, setting the image of gay actors back 50 years (if not more), the poll made me feel a bit more optimistic about the acceptance of queer individuals. I also thought it was interesting to read about the “gay policy” of a religious college. Being a product of public schools for my whole life, I can’t imagine going to a college that would have a policy that condemns homosexuality but “supports fair and kind treatment for people with homosexual orientation”. How is it “fair” to condemn someone’s identity whether sexual, racial, etc.? Even more surprising to me was the Newsweek article’s criticism of out gay actors. The article seriously implied that gay actors would have better careers if they did not come out. By criticizing both Hayes and Groff, both of whom have recently officially come out, the writer is supporting a culture in which actors stigmatize themselves.
As mentioned in class, if anyone is able to write a small blurb about communication in their family that would be a great help. Just a couple of sentences on where you first were introduced to the idea of sex or how much you know about your family members’ lifestyles and opinions. Were particular lessons passed on to you or did you have to figure them out on your own? You can post comments here or email me at email@example.com. Either would be greatly appreciated. Thanks so much!
As a queer person who underwent a gendered coming out process/ritual at a particularly young age (10 years old) I have always been fascinated by the phenomena of youth who exhibit non-normative gender and sexual tendencies. There have been a number of thoughts passing through my head space pertaining to these phenomena. On one of my favorite shows, Rupaul’s Drag Race, one cast member speaks quite frequently about being expressively queer at a young age. Contestants around her immediately showed resentment to this, baiting her with themes like “tranny” and “real girl don’t do shows,” attempting to make her more drag-like rather than realness. Tatianna, as she is known on the show, came out to a fifth-grade class and from elementary school was as flamboyant as can be. Doing drag in middle and high school come up often to unfortunate glances from her fellow show members. I wondered if they too wished they had the courage and self-knowledge at that age to do what she had done, or if they were trying to enforce their masculinity in a television program dedicated to its betrayal. Her elimination interview sheds some light on her position, she even uses the term genderfuck.
In trolling YouTube myself, I found a number of young children performing non-normative gender to an incredibly comical effect. A blog post on The Daily Beast titled “Should Baby Boys be Singing Beyonce?” addresses one of such videos. Though the blog itself posits that this could be a sign of social progress, the title alone is based in an ingrained dichotomous gender paradigm. Many comments responded to and interpreted the child’s implied queerness. One response even states that singing Lady Gaga exploits the young boy to the point that “somewhere out there in cyberspace there is likely more than one sick bastard getting off on these things.” Another questions importantly “how in the hell is a baby dancing in his little diaper sexual?”
As of recently, I have found myself greatly fascinated by the emerging number of anti-gay politicians and church leaders who have been discovered as having sexual relations with members of the same-sex. The Catholic Church is constantly being discussed in media, but there is a new highlighted form of homophobia in town, that of the closeted gay, anti-gay politician. Usually, this is the man who votes down LGBT rights but enjoys gay sex behind closed doors. There have been many examples (Larry Craig, Ted Haggard, ext.) but this latest case involves CO-FOUNDER of the Christian-based anti-gay group, “Family Research Council.” His name is George Alan Rekers and he is a very interesting fellow. Other than writing books about how homosexuality can be cured and why same-sex couples should not be allowed to adopt children, he also makes his statements publicly known and adds to the fire of hatred and misunderstanding. He was recently photographed with a very young man who he met on “rentaboy.com” (NSFW). He argues that he needed this young twink to help him out with luggage (sure…). I generally respond to articles like these with annoyance, but as of recently I find the reveals of many of them to be quite humorous. In many ways, these cases are examples of internalized homophobia and society’s general attitudes toward homosexuality- the closet is viewed as “safe.” After so many reveals (and likely more to come), I can only conclude that sometimes the most homophobic people are the ones most struggling with their own sexualities.
Watch the complete short film here>> IN THEIR ROOM (nsfw)
* * *
In Their Room is about gay men, bedrooms, sex and intimacy. The film
veers into the bedrooms of eight different men where you see them
doing everything from the most banal to the most erotic. Complimenting
the revealing nature of their everyday activities are confessional interviews
about fantasies, turn ons and vulnerabilities. You never leave their
bedrooms, but this is unmistakably San Francisco of the present.
The film was featured to great praise in Butt Magazine, and later won
“best erotic film” at Good Vibration’s Indie Erotic Film competition.
* * *
At a few points during the semester we talked about pedagogies of pleasure and intimacy. What kind of stories do we tell about our intimate lives? about our desires? “In Their Room” is a short film directed by Travis Mathews which takes a look into the private worlds of young gay men living in San Fransico by filming them as they inhabit their bedrooms. What do we find? Perhaps what you might expect: they make phone calls, they listen to music, they masterbate. (Okay, so they also cross-dress.) But these kinds of banal private activities are represented to us in ways that feel like we are peeking into the private, hidden and the intimate worlds of these young men….into one of the most vulnerable spaces.
I think sometimes we forget that the representations of sexual practices are somewhat limited to a few forms and to a few select groups of people. Mostly straight, mostly white, mostly heteronormative….(of course there are pornographic genres for pretty much every kind of fetish you can think of). “In Their Room” draws on some of the techniques documentary, erotica, pornography with a voyeuristic twist. As stated above the aim of the film to “reveal.” It might also shock us, or bore us, turn us on or off; perhaps make us want to know more.
I decided to share this indie erotic film because, unlike specifically political issues major and minor, this film focuses on everyday life, how people live it, and how they feel about it. And I feel that in some ways this is just as important as the political. Or perhaps it is political…perhaps what kinds of things we are allowed to say or show or do relate directly to the political. The contemprary philosopher, Jacques Ranciere, refers to this as ” le partage du sensible” – the distribution of the sensible- as way of means of politicizing aesthetics. For Ranciere, political struggle occurs when the excluded seek to establish their identity, by speaking for themselves and striving to get their voices recognised as legitimate and heard. Politics is thus a struggle between the established social order and its excluded ‘part which has no part’. Perhaps this is one of thinking about the ways the aesthetic suture queerness and race to the political, as addenda to Audre Lorde.
“In Their Room” will for some audiences just seem like artsy gay erotica, but for others it is a new mode of representing the “private” (the space of sexuality/pleasure/intimacy/vulnerability)…of giving the private a public.
I decided to write my final paper on gay parenting because it’s an issue that’s not discussed as much as other issues. We talked about gay marriage in class and even when a partner in a heterosexual marriage becomes gay but never really touched upon gay parenting. Causing me to look further into investigating and researching about gay parenting. Gay Parenting is definitely way more common than it used to be. However, gay people still struggle to live their lives they way they choose in a heteronormative society. The issue is that heterosexuals feel that its wrong for gay people to raise children and fear that gay people aren’t fit parents. Although research does not indicate much difference between homosexual and heterosexual in parenting styles and concerns, gay and lesbian families are always facing the question of viability.
Those who are against same-sex couples adoptions and second adoptions try to frame the debate as protecting children or say it’s because of family values. Those who against same-sex couple adoptions or having a baby claim that allowing same-sex couples to adopt allows them to “experiment on children”. However if you look down at the pictures below these couples and their children look happy. Most studies that have been conducted on children raised by gay parents have found that they turn out no better or worse than children from traditional families according to several factors including friendships, self-esteem, behavior, academic achievements, and family relationships.
Look at these couples in these pictures they are happy and their families are beautiful. This the perfect family portrait two people who love each other and the love they have shines through to their child. Why do you heterosexuals think there’s something wrong with this picture? Get it over because homosexuals are here to stay and are not going to change their life to make you feel better about yourself! According to the 2000 census, there were 163,879 households with children being raised by same-sex couples. That number is said to have climbed from between 1 and 9 million children.
So please keep your homophobia to yourself! Let gay people experience life just like everyone else because they deserve a family and the joy that comes with it too!