Theoretical Setting and Research Corpus

The history of male-to-male sex in Mandate Palestine has gone largely unexplored,Footnote ⁴ aside from Ofri Ilany's analysis of the Hebrew press characterization of homosexuality as “oriental vice.”Footnote ⁵ Ilany assumes that the paucity of scholarship reflects the fact that many practitioners did not define themselves as “homosexuals” and that the clandestine nature of the activity left little documentation. Although he aims to give voice to practitioners of male-to-male sex in Mandate Palestine, his materials yield mostly judgmental views. He presents the perspectives of only three “insiders,” Jewish literary writers (De Haan, Zweig, and Langer) who he claims had internalized European Orientalist concepts. Beyond Ilany's research, male-to-male sex in Mandate Palestine has received only incidental scholarly attention. For example, in his work on colonialism and homosexuality, Robert Aldrich mentions Orthodox Jewish Dutch author Jacob De Haan's relationships with Arab boys, and refers to British troops procuring male-to-male sex;Footnote ⁶ Liat Kozma briefly considers male-to-male sex in her work on the discourse of sexology in the Jewish settler community in Palestine;Footnote ⁷ and Tammy Razi touches on the subject in her study of the life of Jewish street children in Mandate Tel-Aviv.Footnote ⁸ Occasional references to homosexual relationships between Britons and Arabs or Jews and Arabs are found in memoirs and some intelligence reports.Footnote ⁹

Comparative studies of the criminalization of male-to-male sex across the British Empire necessarily explore the perspective of the colonizers, the imperial gaze.Footnote ¹⁰ Other historical scholarship scrutinizes the application of criminal prohibitions in specific colonial contexts. Understanding the local statutory arrangements in their social and cultural context entails the study not only of the perspective of the colonizers but also that of their subjects. What were the local attitudes toward sex between men? How did colonial subjects perceive the criminal prohibitions imposed on them? Did they resist this sexual regulation, internalize it, or overtly react to it in any sense? The foci and findings of such research vary across colonial territories, depending upon local culture and available archival materials. What remains constant is that traces of subaltern voices are often scarce and elusive. Suzanne LaFont, who studies the interweaving of elite and Afro-Jamaican sexual mores, was unable to find colonial era descriptions of sodomy between slaves.Footnote ¹¹ Anjali Arondeker points to the paucity of legal sodomy adjudications in the archives of colonial India, and explores other evidentiary sources. Forensics, juridical rhetoric surrounding the crime, and intersecting debates allow her to examine the local legal translation of native sexuality.Footnote ¹² She further juxtaposes the Western reading of the hijra (transgender eunuch) as a “third sex” with a reading that avoids such gendered reifications. She studies hijras not only from the standpoint of their sexuality but also from that of their relation to the state and the economy.Footnote ¹³ Jessica Hinchy also uses the example of the hijra to illustrate how the regulation of native sexuality intersected with broader colonial agendas and projects.Footnote ¹⁴ She further points to practices of resistance and evasion by hijras across colonial India, who made the most of the uneven enforcement of the regulation against them. Christine Stewart examines the application of colonial Australian law criminalizing consensual sex between men in Papua New Guinea. Relying on several cases that were heard in the years preceding Papua New Guinea's independence in 1975, she points to the tension between the austerity of colonial law and local customs and opinions pertaining to sex between men.Footnote ¹⁵ She further points to the pertinence of sexual roles and race to the local application of law.Footnote ¹⁶ The present article suggests that the study of the process of proof provides nuanced insight into the perceptions and agendas behind the colonial prosecution of male-to-male offenses. It allows for discernment not only the tensions but also the points of compatibility and interaction between the colonial apparatus and subaltern voices.

This study is based on a corpus of 136 legal cases heard in the courts of Mandate Palestine, most of them in Haifa District Court. Although most court files from the Mandate period (1918–48) have not survived, files of criminal cases heard in the Haifa court between 1939 and 1948 are largely extant and provide a comprehensive and systematic picture of the Haifa district during that period. The files contain three types of documents: those related to police investigations, those related to preliminary inquiries (mandated in district court casesFootnote ¹⁷), and those related to trials. The use of criminal case files can enrich understanding of male-to-male sex in Mandate Palestine, as the materials they contain reflect both the hegemonic, regulatory, and labeling perspective of the rulers, and the perspective of those who were tried, examined, and labeled. The files contain not only the voices of the judiciary but also those of accused, victims, and witnesses from diverse social circles. Most of the accused and many of the witnesses were Arab.Footnote ¹⁸ The small amount of scholarly work focused on male-to-male sex in Mandate Palestine has so far completely failed to address the viewpoints of Arab subjects. Furthermore, the case files concern allegations of both consensual and nonconsensual male-to-male sex, and, therefore, provide an opportunity to explore their social differentiation, from both “above” and “below” perspectives.

Mandate Palestine

The British completed their occupation of Palestine in 1918, during the waning days of World War I. The European powers divided up the Middle East among themselves in postwar agreements. Britain took possession of Iraq and Palestine (later separating the area of Transjordan from Palestine), which were not defined as colonies but as “mandates” supervised by the League of Nations.Footnote ¹⁹ Although the stated goal of the mandate system was eventual self-rule, the British maintained military, political, legal, and administrative control, and, from 1921 on, responsibility for Palestine lay with the Colonial Office.Footnote ²⁰ The two formal legal instruments constituting the British rule, the League of Nations Mandate for Palestine and the British Palestine Order in Council, were promulgated in 1922.Footnote ²¹ The British transformed the territory's existing Ottoman legal system into a semblance of the common-law model, resulting in Anglicization qualified by traces of Islamic and French elements.Footnote ²² Article 46 of the Palestine Order in Council limited the application of English common law, and provided that it should “be in force so far only as the circumstances of Palestine and its inhabitants and the limits of His Majesty's jurisdiction permit and subject to such qualification as local circumstances render necessary.” The British refrained from implementing the jury trial, a key element of the English system, the adoption of which would have entrusted local subjects with the power to influence judicial decisions. In addition, they adopted evidence law that did not directly apply common law rules or follow the Indian Evidence Act of 1872, but instead, retained some Ottoman arrangements.

The Ottoman structure of the court system was largely perpetuated, including the millet system, which endowed the religious courts with jurisdiction over matters of personal status (most notably, marriage and divorce).Footnote ²³ Preservation of precolonial legal structures was consistent with an imperial strategy of noninterference with the status quo as a means of forestalling local resentment and disobedience.Footnote ²⁴ Two-tiered secular courts heard civil and criminal matters. Lower courts had jurisdiction over petty criminal and civil cases, and district courts handled more serious criminal and civil matters and also heard appeals of lower court decisions. The Supreme Court in Jerusalem heard appeals taken from the district, sitting in a tribunal that initially included at least two senior British judges, later reduced to one.Footnote ²⁵ Certain judgments of the Supreme Court in civil matters could be reviewed by the Privy Council in London.

Legal Background

The British were scandalized by what they perceived as the prevalence of “sodomy” among the natives in Palestine, and worked to eradicate it through criminal legislation. The criminalization of consensual sexual relations between adult men was a novelty introduced to Palestine by the British. The Ottoman Penal Code (OPC) that existed at the time of the British occupation in 1918 did not contain such a ban. The basic sex offense, as defined in Article 198 of the OPC, forbade the commission of an “abominable act” on “a person,”Footnote ²⁶ the victim being referred to in gender-neutral terms. Dror Zeevi speculates that the main purpose of this phrasing was to avoid discussion of same-sex relations.Footnote ²⁷ Apparently, the Ottoman norm did not apply to consensual same-sex activity. The 1858 Penal Code (revised twice, in 1911 and 1914) was based on the Code Napoléon, which also did not ban homosexuality.Footnote ²⁸

The British, however, treated male-to-male sexual acts as inherently different from male-on-female acts. Their first step, in 1927, was to introduce two distinct sexual offenses, “sodomy” and “rape.” Rape could only be committed with a “female,” whereas sodomy could be committed with “any person.”Footnote ²⁹ Another difference, not spelled out in the wording of the clause but unexceptionally followed in practice, related to the orifice penetrated. Rape, “unlawful sexual intercourse with a female,” required vaginal penetration, whereas “sodomy” criminalized anal penetration of either male or female.Footnote ³⁰ The ordinances that targeted indecent acts, less grave sexual assaults, were phrased in gender-neutral language.Footnote ³¹ The Mandate authorities’ next step, in 1936, was to outlaw consensual homosexual relations between adults.Footnote ³² It is noteworthy that homosexual sex was included in the same category as bestiality in a section that dealt with offenses “against the order of nature.”Footnote ³³ On the face of it, this formulation constructed homosexual sex not merely as a forbidden act but also as unnaturally perverse; therefore, it was consistent with the Foucauldian argument that in the nineteenth century “the homosexual” became a category of personality.Footnote ³⁴ The terminology of offenses “against nature” was in line with the scholarship of leading late nineteenth century sexologists.Footnote ³⁵ However, the criminal prohibition echoed ancient norms, as the conjunction of sodomy and bestiality had existed in English law for centuries. Although the colonial penalty was the same for a person who “has carnal knowledge” of another and for a person who “permits a male person to have carnal knowledge of him” (10 years’ imprisonment), the British differentiated between activity and passivity, penetrating and being penetrated, as distinct offenses. The distinction reflects a premodern patriarchal notion that measured masculinity in terms of sexual roles demonstrated by activity or passivity. Penetration signified subjugation and humiliation of another, whether performed on a woman, a slave, a boy, or a man.Footnote ³⁶ This tradition had long roots in both Muslim society, where sexual relations between males were prevalent despite their prohibition by the Quran, and in Jewish communities within the Ottoman empire.Footnote ³⁷ The Palestine Criminal Code Ordinance (CCO), however, was not drafted with the intent of accommodating local dispositions toward male–male sex but of rooting them out.

The legal ban on homosexuality was a long-standing British norm. The roots of the prohibition date back to 1533. “An Acte for the punysshement of the vice of Buggerie” (25 Hen. VIII, c. 6) made “Buggery committed with mankind or beast” a statutory felony. The prohibition was repealed in 1547 along with all other Henrician statutes (1 Edw. VI, c. 12, 1547, s. 3), but was reinstated in 1562 (5 Eliz., c. 17) and re-enacted in 1829 (9 Geo. IV, c. 31, cl. 15). The term “buggery” denoted several situations:Footnote ³⁸ males or females committing sexual acts with animals,Footnote ³⁹ a male raping another male,Footnote ⁴⁰ and consensual anal sex with a femaleFootnote ⁴¹ or a male.Footnote ⁴² Although both partners to the act were guilty of the same offense, the indictments made reference to their respective sexual roles,Footnote ⁴³ with the penetrating party sometimes described as committing “assault,” notwithstanding the consent of the party penetrated.Footnote ⁴⁴

Nonpenetrative homosexual relations were criminalized in Victorian England. The Offences against the Person Act 1861 (24 & 25 Vict., c. 100) consolidated various acts dealing with offenses against the person, including sexual offenses. The Criminal Law Amendment Act 1885 (48 & 49 Vict., c. 69) revised offenses involving female victims but also promulgated a statutory ban on “gross indecency,” thus widening the criminalization of male–male sexual practices.Footnote ⁴⁵ These last two statutes regulated male–male sexual acts in England during the period of the British Mandate in Palestine.Footnote ⁴⁶ The English legislation used vague terms such as “sodomy” and “gross indecency,” making no distinction between forceful and consensual sexual acts or between adult and minor partners.Footnote ⁴⁷ The meaning and extent of the offense were delineated in case law.Footnote ⁴⁸

Not until 1994 was male rape explicitly and distinctly acknowledged in English criminal legislation.Footnote ⁴⁹ In Palestine, the British had addressed it almost 60 years earlier. The legal prohibition on anal sex recognized two scenarios. One, defined under section 152(1) of the CCO, was sodomy committed on a person against his will by the use of force or threats of death or severe bodily harm, on a person who was unconscious or unable to resist, or with a child under the age of 16, regardless of consent or the absence of force.Footnote ⁵⁰ The other scenario involved sex between consenting adult males, titled “offences against nature” under section 152(2) of the CCO.

Regardless of recurring policy statements about reluctance to interfere with local norms and customs, same-sex activity, albeit consensual, was criminalized across the British colonies.Footnote ⁵¹ The colonial prohibition on sodomy took two main forms. The first, illustrated in the Indian Penal Code 1860 (IPC), was adopted, among other places, in Kenya, Uganda, Tanzania (which later adopted the second variant), and Sudan. Section 377 of the IPC generally forbade “carnal intercourse against the order of nature” and made no distinction between a man who raped another and a man who engaged in consensual sex. The second form is illustrated in the Queensland Penal Code 1899 (QPC).Footnote ⁵² The QPC was the model for the criminal codes of Northern Nigeria, and, later, the federal code of Nigeria. The latter became the basis for the Cyprus Criminal Code Order in Council, 1928, in turn the basis for the Palestine CCO 1936.Footnote ⁵³ Consequently, the language of section 152(2) of the Palestine CCO targeting “offences against nature” was a replica of section 208 of the QPC (except that it specified 10 rather than 14 years’ imprisonment as the maximum penalty).Footnote ⁵⁴ Queensland's provisions, however, similarly to the English law, made no distinction between male rape and consensual male–male sex. In contrast, the Cypriot provisions formulated male rape and male consensual sex as distinct prohibitions carrying different penalties.Footnote ⁵⁵

This criminalization might be construed as signifying a desire to equate the law of Palestine with that of England, where male sex was strictly forbidden. However, the framing of offenses that aimed to introduce British norms to Palestine did not duplicate the law of England. Rather, the statutory provisions reproduced legislation enacted in other colonies, where the British experimented with codification of the criminal law (England, a common law country, did not have a comprehensive criminal code during its colonial era). Furthermore, the rhetoric surrounding the prohibitions of male-to-male sex did not stress similarities between the British and the local inhabitants, but rather, difference. It characterized male-to-male sex as a cultural depravity of the colonial subjects (notwithstanding parallel prohibitions in England).

British Rhetoric Surrounding Male-to-Male Sex Prohibitions

Judicial decisions deplored the prevalence of sodomy in Palestine, sometimes while lamenting English procedural and evidentiary conventions that prevented conviction. When acquitting a man accused of sodomizing a 10-year-old boy, Judge Weldon, President of the Haifa District Court, stated, “I wish to say quite frankly that under application of English law to this country nearly all such offences as the present one cannot be proved; they are all too common in this country and unfortunately it is almost always impossible to bring to book the offender.”Footnote ⁵⁶ In another case, where the accused lured 13-year-old boys to have sex with him, the court expressed sorrow for being unable to order flogging as punishment.Footnote ⁵⁷

The goal of regulating sexuality, however, was complicated by British belief that their colonial subjects were inclined to perjury. Michael McDonnell, Chief Justice of Palestine (1927–36), described conflicting attitudes of his fellow judges regarding the enactment of a prohibition of sodomy:Footnote ⁵⁸

The contradictory attitudes of the judges toward the regulation of sodomy reveal conflicting British concerns: about an inexplicable and shadowy “East,” a realm of uncontrolled sexuality, “appallingly rife” with sodomy, and about deceitful and extortion-minded locals of inferior mentality who were prone to illicit use of the precious gift of British law. The British perception of Palestine was premised on a wider imagery of the homoerotic degeneracy of the Orient.Footnote ⁶⁰ McDonnell's reference to the “East” reflects a general bias against “natives,” one that failed to address the particular characteristics of Palestine and its inhabitants. From the British viewpoint, the “natives” of all colonies constituted one indistinguishable mass. Not only did the word “East” serve to reference an array of ideas about the Orient, “its sensuality, its tendency to despotism, its aberrant mentality, its habits of inaccuracy, its backwardness,”Footnote ⁶¹ but it also created a hierarchical distinction between the British and their “Eastern” subjects. Because the wordings of the sodomy clauses in Mandate Palestine were modeled after a standard colonial formula, they did not target local concerns. Rather, they reflected concerns about colonial subjects in general, whether in Queensland, Nigeria, or Palestine. Although sometimes willing to accommodate the ethnocultural diversity of Palestine's inhabitants—for example, when applying a standard of “reasonableness” for provocation in a murder caseFootnote ⁶²—the British approached sodomy with the explicit intention of eradicating local custom.

In his groundbreaking work on the history of sexuality, Michel Foucault identifies the nineteenth century as a time of change toward sex between males. From merely a forbidden act, “homosexuality” came to designate a category of personality.Footnote ⁶³ The regulation of sexual acts between males (both forcible and consensual) in Mandate Palestine only partially fits this pattern. The British rulers of Palestine expressly aimed to obliterate sodomy, which they condemned as a prevalent depravity among the local population, rather than an individual pathology, and the creation of the “homosexual” as a pathology was present in courtroom practice only to a limited extent.

Sociocultural Patterns Underpinning Prosecution of Sexual Assaults

Rape is often regarded as a gendered crime, with mostly female victims.Footnote ⁶⁴ The data for Mandate Palestine reveal a different reality. Of the 136 cases in the research corpus, 69 involved offenses committed by males on males, 61 of which involved sodomy, indecent acts or attempted indecent acts, or perjury pertaining to such allegations, and 8 of which involved offenses “against the order of nature.”Footnote ⁶⁵

The scope of sodomy as delineated by the CCO included three situations: 1) forcible male rape (through actual force or threats of death or severe bodily harm); 2) sodomy with a person who was unconscious or otherwise incapable of resisting; and 3) sodomy with a child under 16. The underlying assumption in the latter two situations was lack of capacity to give real consent.

In contrast to the practice in England, in Palestine, the British distinguished forceful male sex (sodomy) from consensual acts (offenses against the order of nature). Nevertheless, force was often irrelevant. My data reveal that of the three situations constituting “sodomy,” prosecutions most often targeted sexual contact with children, in which proof of force was not necessary. Notably, of fifty-five sexual assaults (excepting consensual cases from the total count, and eliminating multiple perjury charges pertaining to the same circumstances), most concerned children younger than 16 (forty-four cases). Seven other cases involved minor victims (younger than 18), and of the four remaining cases, one concerned a 23-year-old British soldier who was allegedly assaulted by a fellow soldier, one concerned a 20-year-old, and two concerned victims of unknown age. The pattern of prosecution coalesced around sexual assaults of minors.

One explanation for the high proportion of minor victims is their obvious vulnerability. It may also be the case that the authorities were more interested in protecting children than in regulating sexual relations between adults, notwithstanding the formal criminal prohibitions against both forceful and consensual sexual acts between adult males. But the focus on one “scenario” of male rape may also be accounted for by an underlying myth: that adult men were not rapable.Footnote ⁶⁶ Rendering the element of force negligible in most court cases of male rape (as most involved minors) had the potential to strengthen the myth that men could not be overcome by physical force and, thus, raped. This could then imply that men who complained of having been raped had brought it on themselves and were somehow at fault. Even boys could be blamed for not preventing the perpetrator from committing the act. Such argumentation is found in Judge Curry's acquittal of the accused in a sodomy case, despite medical evidence of a tear in the anal canal of the complainant: “I am very far from satisfied that accused committed the act of sodomy without the consent of the complainant. Accused is not particularly powerfully built and the complainant is a boy of some 15–16 years of age who could quite easily prevent the accused from committing the act had he so wished. It is to be noted that there were no other marks of violence on the complainant other than the evidence of the actual act of sodomy. I disbelieve the Prosecution Witness that the boy was screaming for help.”Footnote ⁶⁷

The “ideal” victim of a “real” rape is a female who is characterized in terms of conformity to patriarchal norms of a “good” woman.Footnote ⁶⁸ In contrast, “bad girls,” less compliant with gender norms, “ask for it.” In the same vein, gendered rape myths construct the ideal male victim vis-à-vis his conformity to masculine gender roles, thus similarly bolstering the patriarchal model.Footnote ⁶⁹ Concentrating on minor victims does not disrupt this model. An adult male who adheres to gender norms can and does defend himself and therefore cannot be raped.Footnote ⁷⁰ The narratives of adult males who are nevertheless attacked are underscored by other rape myths: that only gay men are victims of rape, that homosexual and bisexual individuals are deviant and therefore deserve to be raped, or that a man who was raped must have wanted it.Footnote ⁷¹ Even young boys, who might be expected to lack the strength to fight off their attackers, are susceptible to such interpretations, as the abovementioned example demonstrates. Unsurprisingly, then, beyond the standard impediments to proving sexual assault (general distrust of local witnesses and the evidentiary barrier embodied in the demand for corroboration, especially high when children were concerned), male complainants in Mandate Palestine were met with heightened suspicion concerning their sexual tendencies and history. This suspicion was rooted in cultural scripts that existed outside the courtroom and in formal definitions of the substantive criminal norm.

Alleged male victims were routinely examined for signs of rectal penetration and bodily injuries. The medical examinations were underpinned by British and local beliefs about men's “rapability.” Medical-forensic evidence was highly valued by the judiciary as factual and objective and was seen as emblematic of the British imposition of progress on an undeveloped country.Footnote ⁷² A medical report supporting a claim of sexual assault was, therefore, a trump card. It could not, however, be detached from sociocultural perceptions of male-to-male sex and could become a double-edged sword. Medicolegal reports, for example, customarily indicated whether a child victim was a “habitual sodomist” or a “passive subject.” Dr. Ahmed Kamel followed this form in his report on 12-year-old Moshe, who had complained about being sodomized by two men. In addition to redness indicative of penetration, the physician found that the “anus is funnel shaped and its opening is wider than expected for his age. These are signs which indicate an habitual sodomist.”Footnote ⁷³ In the trial of a man accused of sodomy of a 13-year-old boy, Dr. Kamel testified, “I should think the boy had been used more than once for this purpose, as he had a funnel shaped rectum.”Footnote ⁷⁴

Dr. Ali Akila, who examined Deeb, an 11-year-old victim of sodomy, testified before the magistrates about the fissures and scratches found on the boy's body. He also added that the boy had a funnel-shaped anal canal, indicating that “the boy was used much before.”Footnote ⁷⁵ Reports sometimes indicated the absence of such evidence. For example, Dr. Torian, who examined Mahmoud, a 7-year-old who was brutally attacked, described bruises and tears and also remarked “the Anal Canal was normal not a funnel shape. I mean that the boy was not previously acted on.”Footnote ⁷⁶

Why should the medical evidence have delved into the sexual past of very young children, when the consent of those younger than 16 was immaterial to proof of sodomy? The evidentiary value of the boys’ sexual past was probably analogous to that attached to girls’ virginity: the accused might not be held responsible if penetration could be shown to have occurred prior to the episode described in the charges. Where virginity or its male equivalent was not at issue, the sexual past and consent of a boy younger than 16 were irrelevant to charges of sodomy. Nevertheless, the portrayal of the child as a “habitual sodomist” created an impression of moral depravity, which could have damaged the complainant's credibility. A victim who breached gender norms was blamable. Forensic evidence of a “funnel-shaped” anus was first used in colonial India at the end of the nineteenth century.Footnote ⁷⁷ The reference to an alleged victim as a “habitual sodomist” constructed him as a person with little if any right to refuse sexual advances.Footnote ⁷⁸ The defining characteristic of acts of sodomy was lack of consent. Consensual acts carried lesser maximum penalties (10 years as opposed to 14 years for sodomy).Footnote ⁷⁹ Nevertheless, the formal distinction between forceful and consensual acts was blurred, as the element of force was undermined in most sodomy cases, because the victim was a minor (regarding whom no use of force had to be proved) or someone who had brought the offense on himself by not resisting or through sexual habits that “invited” penetration.

The medical opinions incorporated a widespread theme of Islamic folklore: a boy known to have been sodomized was regarded as “fair game for others.”Footnote ⁸⁰ Interspersed in the testimony of the medical experts were vernacular terms such as “used” or “habitual sodomist,” the latter term pointing to a behavioral pattern more than to medical pathology. The reference to victims’ possible past sexual corruption is consistent with cultural and social doubts about male rapability.

Sociocultural Patterns Underpinning Prosecution of Consensual Male Sex (Offenses Against the Order of Nature)

The offense of “sodomy” drew a sharp line between the perpetrator and the victim, on whom the act had to be committed “against his will by the use of force or threats of death or severe bodily harm, or when he is in a state of unconsciousness or otherwise incapable of resisting.” However, when consensual homosexuality became a crime, both partners were accomplices. Although the term “homosexual” existed in medical and legal literature in Mandate Palestine, many of those who engaged in homosexual practices did not apply the term to themselves, either being unfamiliar with it or not identifying with its implications.Footnote ⁸¹ None of the defendants or witnesses in the cases examined for this article used the term. The word “homosexual” does not appear in the British legislation, and the terminology “against the order of nature” is actually a prohibition on anal sex with either a male or a female partner. In practice, however, the criminal norm was routinely regarded by the authorities as a ban on homosexuality, an interpretation that implied a complete identification of homosexuality with anal sex, “as there was no homosexuality without anal sex, and there was no anal sex without homosexuality.”Footnote ⁸² While judges in colonial India made considerable efforts to extend the scope of the prohibition on sodomy to include oral acts,Footnote ⁸³ the Palestine district court cases consulted for this analysis discussed only incidents of anal sex.

The Mandate cases of “offence against the order of nature” entailed typecasting of the accused according to culturally accepted roles. The recurrent pattern involved an older man who penetrated a teenage boy, sometimes (but not necessarily) in return for payment.Footnote ⁸⁴ Such was the 1943 case involving two laborers at an army cavalry post, Abdel Hamid, a 30-year-old Muslim originally from Egypt but then residing in Haifa, and Ali Mustafa, a Muslim teenager in Haifa.Footnote ⁸⁵ Having been observed by a British soldier with their trousers down, about to engage in a sexual act, they were brought before the magistrate. Abdel Hamid was charged with an attempt to have carnal knowledge and Ali Mustafa with an attempt to permit carnal knowledge. Although active and passive consensual anal relations were offenses carrying the same punishment, the formal legal distinction seems to reflect a power relation: the stronger party penetrating the weaker, resonating with the ancient pattern of age- and status-stratified male-to-male sex.Footnote ⁸⁶ Even in a case in which the ages of the partners were relatively close (20 and 17, respectively), the pattern remained the older penetrating the younger. Mohammad, the older accused in that case, explained that “I asked him to act upon him as I heard that he is used. Whereas I am ignorant and unmarried I entered with him to the shelter in the ditch and acted upon him.”Footnote ⁸⁷ The medical examination revealed that Hussein, the younger accused, was infected with syphilis in his rectum. While not much younger than Mohammad, Hussein seems to have come from the lower end of social spectrum, a vulnerable and exploited boy. The manner in which Mohammad describes the event conforms to premodern images of same-sex relations. For him, having sex with Hussein was not a self-defining act of homosexual identity. As Mohammad was not yet married, the younger boy was merely a passing object for his sexual satisfaction. Mohammad described himself as “ignorant,” an expression that conveys awareness of distinct British sexual norms and submissiveness.

In light of Hussein's syphilis, the judges ordered that he be segregated from other prisoners in the jail. This order implies acknowledgment that the punishment meted out for forbidden male sex—imprisonment—was likely to result in similar acts during incarceration and that these acts would likely conform to the pattern of older and stronger men exploiting the younger and weaker. Conviction and imprisonment, then, were concerned with symbolic demarcation of socially illegitimate acts, perhaps even more than their actual prevention.

Like sodomy suspects, those suspected of “unnatural offences” were routinely examined medically to determine whether they were “habitual sodomists” or “passive subjects.” This practice presupposed that, aside from the presence or absence of venereal diseases, practitioners of anal sex were medically distinguishable. In cases of consensual acts, both partners could be examined, as happened to Abdel Hamid and Ali Mustafa. Both were found to have funnel-shaped anal canals, which was suggestive, according to expert opinion, “of [one] being a passive subject” (Ali Mustafa) and the other “being a passive perversity” (Abdel Hamid).

Medical examinations were also used to determine age. Despite suspicions that they were sodomists, despite having literally been caught with their pants down, and despite the legal prohibition on consensual homosexual relations, both Abdel Hamid and Ali Mustafa escaped legal sanction. An X-ray revealed that Ali Mustafa might have been younger than 16. This possibility had double legal consequences. First, it rendered Ali Mustafa a victim rather than an offender, and the magistrate dismissed the charges against him. Second, Abdel Hamid was charged with the more serious offense of attempted sodomy, as consent was irrelevant when a partner was younger than 16. Nevertheless, the district court discharged him, finding no hard evidence that Ali Mustafa was under age and, therefore, that there was no case for Abdel Hamid to answer. Theoretically, Abdel Hamid could have been made to answer the lesser charge of attempting to have carnal knowledge. One can surmise that this path was not taken because the alleged victim, Ali Mustafa, was a “habitual sodomist” and because the judicial system was more lenient when consent was not questionable.

In England, homosexuality charges were sometimes a practical substitute for more severe sexual charges that could not be proved.Footnote ⁸⁸ Perhaps in Palestine too, the lesser offense “against the order of nature” was used for cases of suspected forceful sodomy that were difficult to prosecute as such because of evidentiary difficulties, for example, insufficient evidence to prove the use of force,Footnote ⁸⁹ or some moral vice of the penetrated party (such as his being a “habitual sodomist” or a prostitute) that might have undermined his claim of being violated.

The substantive statutory arrangement differentiated between having or permitting others to have “carnal knowledge,” thus clearly distinguishing between the roles of penetrator and penetrated. Such distinction had deep roots in Islamic culture as well as in the Arabic language, which has no general term for “homosexual” but, rather, specific terms for active and passive sexual roles.Footnote ⁹⁰ Although both male partners to an act of “carnal knowledge” could be charged, the specific charges differed according to role. Elias, a 20-year-old Christian from Haifa, and Mohammad, a 29-year-old Muslim from Jaffa were listed on the same charge sheet, accused of engaging in consensual sex.Footnote ⁹¹ Elias, however, was charged with permitting Mohammad to have carnal knowledge of him against the order of nature, whereas Mohammad was charged with having carnal knowledge of Elias against the order of nature. The event occurred in Jissir Mejani, where Mohammed was a cook in a restaurant. Originally from Jaffa, he had moved to Jissir Mejani, where his brother-in-law resided. Mohammad's restaurant served workmen from a nearby camp run by the Works Department. On the evening of September 12, 1943, after all the workers had left the restaurant, Mohammad remained in the kitchen drinking brandy, and Elias also remained there. Mohammad stated that Elias asked him for money and offered anal sex in return. Elias asserted that Mohammad closed the door, put a half-pound banknote in his (Elias's) pocket, dimmed the lights, and forced him to commit “the abominable act.” Adel, the owner of another restaurant in Jissir Mejani, arrived and, hearing noises from inside the kitchen, peeked through a crack in the door. He saw Mohammad “riding over” Elias, both of them naked below the waist. Adel called Abdul Karem, a foreman from the work camp, who was sleeping in a room near the restaurant. Through the crack in the door, Abdul Karem also saw what the two men inside were doing and sent for the police. Elias later told the police that the onlookers called, “Come, oh good people, and see” but that Mohammad continued “until he finished his act.” The police subsequently came and arrested him and Mohammad.

The statements and testimony of the accused and witnesses during the investigation and prosecution (first before the magistrate at the preliminary examination and later in the Haifa District Court) illustrate some of the recurring elements of “offences against the order of nature” that were heard in the courts of Palestine. One is that the complaint came from an inadvertent witness. The authorities are never described as initiating an investigation but, rather, as responding to a complaint brought to them. Here, the first move was made by another restaurant owner, the latter perhaps having stumbled on an opportunity to take a competitor out of business.

A second recurring element is the link drawn by the accused parties between homosexuality and male prostitution. Mohammad claimed that Elias asked him for money and offered sex in return, whereas Elias claimed that Mohammad put the money in his pocket and forced him to have sex, and he gave the banknote to the police investigator as evidence. In both versions, anal sex was something to be paid for. However, each defendant manipulated this convention for different purposes. For Mohammad, having sex with a prostitute was the lesser of two evils, preferable to more severe charges of forceful sodomy. Indeed, he told the inspector, “I know this boy previously from Haifa and he is used since old time” (a statement supported by the medical examination, which found that Elias “was used more than once”). Elias described forced payment to negate the claim that he permitted Mohammad to penetrate him and thus to present himself as a victim rather than an accomplice (in vain, as he was eventually charged). The link between sodomy and prostitution meant that banknotes could be produced as evidence of the sodomitic act.

Payments figured in other suspects’ narratives as well. Two Haifa residents, Mohammad, a 30-year-old Muslim originally from Jaffa (Jebaliyeh), and Malik, an 18-year-old Arab Christian originally from Lebanon, were in the bomb shelter under the Central Hotel in Haifa when three other men entered and realized that they had intruded on the aftermath of a sexual act.Footnote ⁹² One of them said he heard Malik demand money from Mohammad, who refused to pay, claiming he had not ejaculated, a statement denied by Malik. Malik told the police investigator that Mohammad had offered him money for a “ride,” and when he responded, “This is not my work,” Mohammad sodomized him by force, beating him and threatening him with a knife. Malik also stated that one of the witnesses also asked him for a “ride.” In his statement, Malik describes himself as a victim and presents Mohammad's offer to pay him as an indication of the latter's sole culpability (to no avail, as he was eventually charged with permitting Mohammad to have carnal knowledge of him). Mohammad told quite a different story. He stated that he had demanded Malik repay a debt he owed him and that Malik had refused, although he had a box rattling with money. Malik, he claimed, offered sex in lieu of the money. Mohammad alleged that he had refused this offer, saying he was too sick to engage in sex. Mohammad's version pointed to Malik as a willing and even an instigating party. His strategy was successful in that he was not charged with forceful sodomy but with the lesser offense of having carnal knowledge of Malik. Mohammad's insinuation that Malik was a prostitute was possibly fortified by the expert opinion that Malik was a “habitual passive subject” and by Malik's own statement that one of the witnesses had asked him for a “ride.”

In one exceptional 1943 case, Abdalla (who claimed to be 16 although the police put his age at 20) was charged not only with permitting a man to have carnal knowledge of him but also with keeping a brothel and living off the earnings of prostitutes.Footnote ⁹³ Abdalla, according to testimony in the file, often wore a woman's robe and artificial breasts, made his face up with powder and rouge, and completed his feminine look by weaving a rose into his long hair. Abdalla's parents lived in Haifa, but he was accused of running a brothel in Acre, where he employed two Arab female prostitutes, Zeinab and Khadijeh, and two Jewish female prostitutes, Rachel and Rashel. The prostitutes testified that they had been recruited by Abdalla, who had told them much of his business was with the army. Upon entering Abdalla's shabby house near 11:00 p.m. on April 19, 1943, police constables, who had been called by an annoyed neighbor, found English soldiers dressing and counting money. The constables left “to avoid collusion with the Army.” When they returned the following night, they found Abdalla and the four prostitutes with a mixed clientele of two English soldiers, one Greek soldier, one Arab soldier, and two nonmilitary Arab clients, one from Tiberias and the other from Acre. All but the soldiers, who refused to accompany the policemen, were taken to make statements at the police station. The information filed in the district court against Abdalla included a charge of permitting a male to have carnal knowledge of him, but the identity of his partner remained unspecified. Abdalla admitted to the police investigator that he worked as a prostitute: “I have been for six years permitting men to have carnal knowledge of me. I am well-known to the public. I dress like a woman and put rouge and powder inside my house. I still permit men to have carnal knowledge of me like the sexual intercourse of a male to female from the rear. This is because I am poor and my right hand is disabled. I take money in consideration of that.” Abdalla pleaded guilty to the charges against him, and the only controversy focused on his age. The judges accepted his claim that he was 16 years old, and, agreeing that it was useless to fine him or send him to prison, gave him a very light punishment, discharging him on his own recognizance with the admonition that he be of good behavior for 3 years.

Prostitution, as this story indicates, was treated as a mitigating story line, a relevant factor in determining whether a sexual act was consensual.Footnote ⁹⁴ Although prostitution places male-to-male sex beyond the borders of the dignified, it is still an enduring social phenomenon. Male-to-male sex in exchange for money does not threaten the social order, kinship, or even masculinity as much as consensual sex based on love or mutual passion does. The penetrator is still fulfilling the classical masculine sex role, and the one who is penetrated is motivated by the money, not by attraction. The testimony in the trials points to a strong link between homosexuality and prostitution. Generally, the cases in my corpus reflect a perception that same-sex relations either were the result of power differences or involved monetary exchange. Romantic love between men was not recognized as a motivation. Male relationships were not equivalent to heterosexual relationships.

It is noteworthy that witness narratives do not portray males who engaged in sex with each other as effeminate. Some penetrators who compared male-to-male sex to sex between male and female, spoke of it as a practical substitute (“I had sexual intercourse with him like women,”Footnote ⁹⁵ “I am … unmarried”Footnote ⁹⁶). Such statements imply that the masculinity of at least some penetrators remained intact and that sex with men was simply an act and not a signifier of a type of personhood, to use the Foucauldian terminology.

Most of those who were penetrated portrayed themselves as weak and exploited but not as effeminate; they rarely compared their sexual role to that of a female. Abdalla, the prostitute from Acre, was exceptional in this respect. Abdalla dressed up as a woman, augmented his physique with artificial breasts, and discursively compared himself to a female, admitting he allowed his clients “sexual intercourse of a male to female from the rear.” Yet even Abdalla explained his choices by reference to his poverty and disability and not in terms of an effeminate disposition. Another rare example surfaces in a 1931 murder case. The police believed that the accused murderer killed his adolescent former lover out of homosexual jealousy. According to one newspaper article, the murder happened after the boy had told the accused, “I am not your wife. I am free.”Footnote ⁹⁷ Even as the boy specifically denied that his role in the relationship could be labeled feminine, he suggested a possible analogy between a penetrated male partner and a “wife.”Footnote ⁹⁸ In a framework of ubiquitous heteronormativity, in which gender categories are reduced to two, man and woman, and are congruent with the sexual roles of penetrator and penetrated, being penetrated implies effeminacy.Footnote ⁹⁹ In the descriptions heard in the Palestine courts, male sex roles were not automatically conflated with gender roles, and same-sex desire was not analogous (nor did it contrast) to a heterosexual sexual or romantic relationship.

Charges of “offences against the order of nature” turned almost exclusively on narratives of homosexual relations. Despite the language that forbade the commission of such offenses with any “person,” prosecution for consensual anal sex with a female was relatively rare. One such case relates to relations that were not forced on but were hardly desired by the female partner. Rushdi, a 25-year-old Muslim carpenter from Haifa, was charged with repeatedly having anal sex with his 20-year-old wife, Fatmeh, to whom he had been married less than a year. When the reluctant Fatmeh finally refused, Rushdi beat her and she left him. Later, Fatmeh, divorced and pregnant, requested the charges against Rushdi be dropped. The magistrate referred the case to the attorney general for consideration. Rushdi was apparently never tried by the district court, despite the ample evidence against him.Footnote ¹⁰⁰ A narrative of “unnatural offences” between a male and a female did not match the stereotypical view of the offense and did not constitute a case that necessarily had to be pursued in court.