Ignoble lies in public debates

Mark A. Sammut He wrote on Facebook that in the 19th century, Malta adopted Great Britain’s Penal Code which criminalised homosexuality. I asked my friend where he got this information from, and he referred me to a Wikipedia page, which in turn refers to a book published by Routledge, no less: Who’s Who in Gay and Lesbian History: From Antiquity to World War II (Vol. 1). It carries an entry by Maltese-Australian lawyer Joseph Chetcuti on the situation in Malta.

The adoption of Great Britain’s Penal Code is not only a myth but also an ignoble lie.

First of all, there never was something called the Penal Code of Great Britain! I am mystified that the book’s editors published this piece of historical fiction, if it is what Mr Chetcuti really wrote.

Secondly, when Malta finally got its Criminal Code in 1854, it ber of times. In the 1840s, the original text was modified by the Scottish lawyer Andrew Jameson, much to the chagrin of the Maltese members of the commission tasked with drafting the text. Despite Jameson’s interventions, the Code maintained its strong link with its Sicilian and French progenitors. To say that Malta adopted Great Britain’s Penal Code is both absurd and heretical from the legal history point of view.

Lastly, the Maltese favoured the trend espoused in the Penal Codes of France and the Italian states of being tolerant toward “irregular” sexual behaviour, such as incest, bestiality and homosexuality. The fixation with criminalising sex was puritanical and British, and had little support in Malta. Jameson, the Scottish lawyer engaged by the colonial administration, wrote in his report that “no man who is acquainted with the South of Europe will hesitate to declare, that the tone of public sentiment with regard to [these] of- fences is much in need of improvement” (pp. 112-113). Indeed, as Mr Chetcuti himself points out, when a Maltese male law professor was charged and found guilty of inappropriate behaviour with a British sailor, “all the elected members of the Legislative Council, the Archbishop of Malta, and 3,000 citizens petitioned for his release”.

In this case, the truth is (i) the Maltese did not adopt the (fictitious) Penal Code of Great Britain ... because there wasn’t one; (ii) the Maltese followed the French and Sicilian Codes when drafting their own Criminal Code; and (iii) the Maltese were not in favour of socially castigating “irregular” sexual behaviour when the Criminal Code was promulgated in the mid-19th century, but were tolerant and lenient.

I think it is important to avoid myths. It is the duty of those who take part in public debates to keep to the truth as can be found in, or deduced from, documents.