EDITORIAL: The legitimacy of two sexual offences
1.The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.
2. For the purposes of this Convention, “person” means every human being. – American Convention on Human Rights
The recent petition to the Inter-American Commission on Human Rights to have the local laws that criminalize same sex intimate relations struck down for their inconsistency with the American Convention on Human Rights, to which we are a state party, was hardly unexpected.
A much more highly visible local and regional LGBT community in recent years, doubtless emboldened by the decisions of international courts elsewhere, would have felt it opportune to challenge those provisions of our Sexual Offences Act that stipulate a maximum penalty of life imprisonment for the offence of buggery at section 9 and oddly criminalizes “any act involving the use of the genital organs for the purpose of arousing or gratifying sexual desire” as the offence of serious indecency in section 12.
On a literal construction, this latter provision would cover not only sexual congress between adults of the same sex in private but also, indeed, any sexual contact between any two individuals anywhere, including a husband and wife in the privacy of their own home.
It bears remarking that similar legislation elsewhere in the region has recognized these anomalies and have made due exception. For instance, the comparable statute in Trinidad & Tobago provides further in respect of the identical offence-
Subsection (1) does not apply to an act of serious indecency committed in private between—
(a) a husband and his wife; or
(b) a male person and a female person each of whom is sixteen years of age or more, both of whom consent to the commission of the act.
(3) An act of “serious indecency” is an act, other than sexual intercourse (whether natural or unnatural), by a person involving the use of the genital organ for the purpose of arousing or gratifying sexual desire.
The Commission has given Barbados three months to answer the petition and the Honourable Attorney General has duly signified our intention to do so. And while we would not wish to presume that response, the reality that these provisions are scarcely enforced locally might well form part thereof. However, this factor would scarcely be a sufficient answer to the retention of these laws, forming rather, in our view, a cogent justification for repealing them, given the high incidence of their non-application.
The truth is that the two provisions are both a legislative
overreach. We have earlier illustrated how the serious indecency offence in its current form is far too wide in its ambit.
So too, we submit, is the buggery provision that also covers the consensual act between a man and a woman, including a married couple, in private. This provision also purports to proscribe even such consensual conduct between males in private.
Successive administrations have declined to tamper with the ambit of both of these provisions, influenced, we suspect, by that not insignificant local constituency that considers male same sex relations especially to be Biblically taboo and therefore, we suppose, justifiably criminally prohibited.
In light of the recent jurisprudential developments and the clear overreach of our legislation, that argument is beginning to sound increasingly shrill.