Stating that the selection of an intimate partner is a private and a personal choice between same-sex consenting adults, the Eastern Caribbean Supreme Court (ECSC) has stuck down Antigua and Barbuda’s buggery laws which were challenged by gay rights activist Orden David and the Women Against Rape Inc., (WARI).
The Court found Sections 12 and 15 of the Sexual Offences Act 1995 of Antigua, to have been in contravention of the provisions of Sections 3, 5, 12, and 14 of the Constitution of Antigua and Barbuda.
In those circumstances, the ECSC has annulled the two sections of the Sexual Offences Act which it found to be offending to the Constitution.
The case bears semblance to the local case—on which the ECSC relied—mounted by a group of Guyanese transgender women in whose favour the Caribbean Court of Justice (CCJ) in 2018, ruled that the law prohibiting cross-dressing violated their freedom of expression provided for under Guyana’s Constitution.
Declaring Section 153 (1) (XLVII) of the Summary Jurisdiction (Offences) Act of Guyana as being unconstitutional, the CCJ had expressed the view that the law was from a different time and no longer served any legitimate purpose in Guyana, and thereby invalidated it.
In its action against the State of Guyana, the appellants—Quincy McEwan, known as Gulliver, Seon Clarke, known as Angel Clarke, Joseph Fraser, also known as Peaches Fraser, and Seyon Persaud, known as Isabella Persaud—had argued that the law discriminated against them.
In her ruling delivered on Tuesday, Justice Marissa Robertson of the ECSC would among other things, make similar findings, safeguarding the constitutional right of the freedom of expression of the claimants in the challenge brought before her.
“The selection of an intimate partner is a private and a personal choice… between same-sex consenting adults,” she said.
Against this background, the Judge went on to declare that both Sections 12 and 15 of the Sexual Offences Act of Antigua and Barbuda offended the right to liberty, protection of the law, freedom of expression, protection of personal privacy and protection from discrimination on the basis of sex; as provided for in the Island’s Constitution.
In voiding Section 12, Justice Robertson said that it was inconsistent with the rights of persons 16 years and older to engage in consensual sexual intercourse in private.
Meanwhile, in voiding Section 15, she said it was inconsistent with the rights of persons 16 years and older to engage consensually and in private, in the sexual acts described in Section 15(3).
The sections addressed the offences of buggery and serious indecency.
In light of the annulment of Section 15 of the Sexual Offences Act, the modification ordered by the Court to Subsection (2) (b) deletes the words “a male person and a female person,” which have now been replaced with the word “persons.”
The challenge to the specific sections of the Act was brought against the Attorney General of Antigua and Barbuda by David who described himself in court documents as being openly gay; and the WARI, who argued that they offended their constitutional right to privacy, personal liberty, and to not being discriminated against on the basis of sex; which they contended properly subsumes sexual orientation and freedom of expression.
David is employed as a Counsellor and tester with the Island’s Ministry of Health; working with populations identified by international health organizations as well as the local health ministry, as the most vulnerable to HIV/AIDS.
Meanwhile, Women Against Rape Inc., has as its mandate, the provision of information, education, general support and direct services to the LGBT community; which includes men who have sex with men (MSM) and women who have intimate relations or sexual engagements with other women. In addition, the organization also advocates for the changing of laws and policies which discriminate against members of the LGBT and other similar communities.
Section 12 (1) of the Sexual Offence Act of Antigua and Barbuda provided among other things, that a person who commits buggery is guilty of an offence and liable on conviction for 15 years, if committed by an adult on another adult.
Buggery in subsection (2) of the section was defined as sexual intercourse “per anum” by a male person with a male person or by a male person with a female person.”
Meanwhile, Section 15 (1) provided among other things, that a person who committed an act of “serious indecency” on or towards another, was guilty of an offence and liable on conviction to imprisonment for five years, if committed on or towards a person 16 years of age or more.
Subsection (3) defined serious indecency as 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.”
In accordance with subsection (2) of Section 15, however, the act of serious indecency did not apply to acts done in private between husband and wife; a male and female each of whom was 16 years or more; both of whom would have consented to the act.
The main bone of contention for the claimants had been that Section 12 of the Act contravened the Constitution in so far as the section applied to “consensual and private sexual acts between adults” each of whom would have attained the age of 16.
They then advanced that Section 15 was null and void since it applied to acts in private between consenting individuals of age; and that the section contravened the Constitution because of its “vagueness and uncertain application.”
David and WARI were granted the Orders sought for the insertion at the end of Section 12 (2), the words, “except where the sexual intercourse is in private and between consenting persons each of whom is sixteen years of age or more.”
And to Section 15(2) (b) of the Act, the substitution of the words “a male person and a female person” with the word “persons.”
Premised on the Preamble to the Antiguan Constitution, which recognizes “the dignity and worth of the human person” and “the entitlement of all persons to the fundamental rights and freedoms of the individual,” Justice Robertson found that Sections 12 and 15 of the Act did in fact violate the rights guaranteed to the individual under the Constitution.
In examining the issue of whether the provisions of Sections 12 and 15 of the Sexual Offences Act infringed the fundamental rights and freedoms provided under Sections 3, 5, 12 and 14 of the Constitution, Justice Robertson noted among other things that the supremacy of the Constitution and the requirement for laws to conform thereto, are well established principles of law.
Highlighting the history of the criminalization of buggery in Antigua, Justice Robertson noted the genesis in its colonial past, with the offence being traced back to the Offences Against the Persons Act, 1873.
In response to the climate in England regarding the treatment of homosexual men, however, the Justice Robertson noted that the Wolfenden Committee met in 1954, and three years later published the ‘Wolfenden Report,’ which recommended that ‘homosexual behaviour between consenting adults in private no longer be a criminal offence.
She said that 10 years after the report, Parliament implemented the recommendations in the Sexual Offences Act 1967, thereby decriminalizing same-sex acts between consenting men. She then made the point that the antecedent to Section 12 of the Sexual Offences Act of Antigua had been repealed in England.
The Offences Against the Person Act of 1873 criminalizing the act of buggery in Antigua the Judge then explained, remained in force post-independence; while pointing out that subsequent to the consolidation of Antigua and Barbuda’s legislation in 1992, the provisions of Offences Against the Person Act were updated.
It was then in 1995 she said, that Parliament in Antigua passed the Sexual Offenses Act, to repeal and replace the laws related to sexual crimes, to the procuration, abduction and prostitution of persons and to kindred offences.
Section 32 of the Criminal Law Amendment Act she said, repealed a number of sections of the Offences Against the Person Act; with Section 50 being replaced with the offence of “serious indecency” which was introduced in Section 15 of the Sexual Offences Act, 1995.
Penal sanctions
The law relating to these offences always carried penal sanctions and since the passage in 1995 of the Sexual Offenses Act, the sanction for buggery between consenting adults carried 15 years and serious indecency a period of five years.
In her assessment of the constitutional relief sought by the Claimants, Justice Robertson made it clear that constitutional rights are not absolute and are subject to limitations; but did note that certain rights and freedoms to which the Constitution refers are inalienable to human beings.
The protection of those rights he said, is important to the protection of human dignity; and went on to note that Chapter II of the Constitution fortifies the basic rights and freedom of individuals. Those enshrined rights and freedoms she said, include, but are not limited to the right to life, liberty, personal privacy, legal redress, protection of law, freedom of expression, and protection from discrimination.
The protection of human rights she said, is also safeguarded against derogation under section 19 of the Constitution which she underscored delimits the ability of the Legislature to enact laws which infringe the fundamental rights and freedom of the individuals provided by the Constitution.
The progressive realization of the fundamental rights of the individual Justice Robertson said, is secured and enforced by the Judiciary.
Referencing a plethora of case law authorities including the Guyana cross-dressing case on Freedom of Expression, Justice Robertson said it provides an example of the expansive interpretative approach to the concept.
On this point she went on to quote Justice Adrian Saunders who in the case said, “It is essential to human progress that contrary ideas and opinions peacefully contend. Tolerance, an appreciation of difference, must be cultivated, not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed. A person’s choice of attire is inextricably bound up with the expression of his or her gender identity, autonomy and individual liberty. How individuals choose to dress and present themselves is integral to their right to freedom of expression. This choice, in our view, is an expressive statement protected under the right to freedom of expression”
Against this background Justice Robertson reasoned that similarly, the choice of a consenting adult with whom that adult person is or can be intimately or romantically connected is integral to self-expression.
“This choice is, by its very nature, a personal decision and private and personal form of expression,” the Judge declared.
She said that the infringement on freedom of expression relates not only to the inability of the Claimant David and persons similarly circumstanced from free expression of sexual orientation, but also conceivably infringes the right to hold and express opinions on their sexual orientation without interference.
Meanwhile, considering the matter of protection from discrimination and protection of the law, the Justice Robertson said on its face, the provisions of sections12 and 15 of the Sexual Offence Act of Antigua and Barbuda were discriminatory to the claimants with Section 15 specifically excluding from the offence, consenting heterosexual adult couples and specifically targeting same-sex adults.
As it relates to Section 12, the Court accepted the observation by counsel for the claimants that even “where, as in the case of sections 12 of the Act, a law is expressed in neutral terms as to the gender or sexuality of its targets, such law will still be discriminatory where the acts prohibited are more closely associated with one class of persons…” and “the fact that neutrally expressed provisions can have a discriminatory and disproportionate effect on gay men has repeatedly been recognised by international and domestic courts.”
“The effect of provisions like sections 12 and 15 of the Act is to stigmatize same-sex couples and makes a particular group subject to arrest, prosecution and conviction of an offence which is a part of that group’s human experience,” Justice Robertson said.
The Claimants were represented by Senior Counsel Douglas Mendes and Andrew O’Kola; while the State through its Attorney General was represented by attorneys David Dorsett and Carla Brookes-Harris.
Like arguments raised by David and the WARI in the Antiguan case, the main contention of the claimants in the Guyanese cress-dressing case had been that that Section 153 (1) (XLVII), which prohibits cross dressing “for an improper purpose,” was so vague that it does not define what constitutes an “improper purpose,” which ultimately leads to uncertainty.
That section made every man who appeared in “female attire” and every woman who appears in “male attire,” in any public way or public place “for any improper purpose,” liable to a fine of not less than $7,500 or more than $10,000.
The CCJ found the law to have been unconstitutionally vague, and violated the appellants’ right to protection of the law, contrary to the rule of law and went on to hold that the law resulted in transgendered and gender nonconforming persons being treated unfavourably by criminalizing their gender expression and gender identity.
The CCJ, in its unanimous judgment found that Section 153 infringed the appellants’ right to freedom of expression guaranteed under Article 146 of the Constitution of Guyana.
The court then went on to reason that a person’s choice of attire is inextricably bound up with the expression of his or her gender identity, autonomy or individual liberty.
That choice, the court further reasoned, is an expressive statement protected by under the right to freedom of expression in the Constitution.
In all the circumstances, the Trinidad-based court of last resort for Guyana ordered that the offending section of the Summary Jurisdiction Act be repealed.
The National Assembly of Guyana has since passed legislation in keeping with the Court’s ruling.
