parties involved30. Racist and anti-Semitic ideology concluded that such congress could not be aimed at producing offspring. The prevailing procreation fetish was thus violated and the act thus regarded as sodomy. The emphasis on sex as unlawful and sinful unless solely as a procreative act is well illustrated by the example given the Roman-Dutch jurist Leyser31 of a case of a man charged with adultery. The procreation fetish required ejaculation in situ for the crime to be more that merely an attempt. The accused in that case sought to avoid the charge by alleging that he had withdrawn prior to ejaculation. In the result he was found guilty of committing the sin of Onan. Instead of the fine which would have been imposed for the offence of adultery, the greater sin of wasting the seeds of reproduction attracted a flogging and banishment – and that after a brief consideration by the judges as to whether the death penalty should be imposed32. Technically the death penalty was applicable for masturbation, whether solitary or assisted but the “high frequency of the offence makes it difficult and almost impossible to enforce the penalty” 33. Sodomy at that time was a species of unnatural offence. An unnatural offence was any sexual act not aimed at procreation. Since then, the common law evolved so that “unnatural offences” have moved from their rationale in the procreation fetish to be directed almost exclusively against the gay community. Hence, consensual heterosexual anal or oral sex is no longer regarded as “sodomy” or an unnatural offence.34. Yet homosexual anal and oral sex remain a crime. The embodiment of this discrimination in the system of criminal justice throughout the history of Zimbabwe, both pre- and post-colonial independence satisfies the requirement of both systematic and historical discrimination. Discrimination as Gross Unfairness Criminal prohibitions on sex between men impact negatively and severely on the lives of gay men. Although there are very few prosecutions of sex between consenting male adults35, the effect of the law is to reduce the status of gay men to “un-apprehended felons” 36. Hence President Robert Mugabe shamelessly encouraging this discrimination declared: If you see people parading themselves as lesbians and gays, arrest them and hand them over to the police 37. Criminal prohibitions of the physical expression of same-sex love enforce and fosters opprobrium outside the judicial arena. The general public and officials in public positions feel they have the sanction of the law to make noxious discriminatory statements against those who do not conform to the dominant heterosexual normative paradigm. These discriminatory statements utilise the lexicon deployed to demonise difference, which was previously more frequently encountered in racist pronouncements. Those who differ from the dominant group are portrayed as a threat to 30 Cameron op. cit. p. 453 31 Medicat ad Pandect (Spec 589) 32 Rcounted in R v Gough and Narroway 1926 CPD 159 at 162 33 Propotkin op. cit. p. 6. Mathaeus 1661 par. 48.3.6.8 34 R v Masuku 1968 RLR 14 35 Only two such cases have received the attention of the High Court: S v Roffey, 1991 (2) ZLR 47; and S v Derks and Storey HC-B-124-84 36 37 Cameron op. cit. p. 455 citing Mohr, R Gays/Justice – A Study of Ethics, Society and Law (1988) p. 4 The statement was made during a now internationally notorious speech on Heroes Day Holiday in Zimbabwe, 11th August, 1995. Reported in The Herald, 12th August, 1995.