As it had done just over a month ago regarding Antigua and Barbuda’s buggery laws, the Eastern Caribbean Supreme Court (ECSC) yesterday stuck down similar legislation in St. Kitts & Nevis.
Justice Trevor Ward QC found that Section 56 and 57 of the Offences Against the Person Act contravened Sections 3 and 12 of the Constitution of the Federa-tion of Saint Christopher and Nevis.
The latter two provisions provide for the right to protection of personal privacy and the right to freedom of expression.
As Justice Marissa Robertson had ruled back in July, Justice Ward also made the point that sexual conduct between same-sex consenting adults in private was personal.
Against that background, he ruled that both offending Sections—56 and 57—were null and void and of no force and effect to the extent that they criminalized acts constituting consensual sexual conduct between adults in private.
Given the ruling, Section 56 of the Act is now to be read as if the words “This section shall not apply to consensual sexual acts between adults in private” were added at the end of the section.
Meanwhile, Section 57 of the Act is now to be read as if the words “save and except where the acts which would otherwise constitute an offence are done in private between consenting adults.”
The action had been filed against the Attorney General of St. Kitts & Nevis by local, Jamal Jeffers, who described himself in court documents as being gay; and the St. Kitts and Nevis Alliance for Equality (SKNAFE)—a community based non-profit organization.
SKNAFE represents, provides services to and advocates for the rights of members of the LGBT community in St Kitts. Its founder and one of its directors— Tynetta McKoy— identifies as a gender non-conforming queer woman.
At issue in the claim which the Court had to determine was the constitutionality of Sections 56 and 57 of the Offences Against the Person Act, in so far as they respectively criminalized buggery and indecent assault against males.
The claimants sought declarations that Sections 56 and 57 contravened their constitutional rights enshrined in Sections 3, 12 and 15 of the Constitution of St. Kitts and Nevis, and, as such needed to be voided to the extent that they applied to consensual sexual intercourse in private between persons 16 years and older.
Outlining the historical colonial evolution of the now struck-down provisions, Justice Ward said that the Buggery Act of 1533 made the crime of buggery punishable by death; and so remained until the enactment of the Offences Against the Person Act 1861 which removed the death penalty and imposed a term of ten years to life imprisonment.
It provided, “Whosoever shall be convicted of the abominable crime of buggery, committed either with mankind or with any animal, shall be liable, at the discretion of the Court, to be kept in penal servitude for life or for any term not less than ten years.”
Meanwhile; gross indecency he said was introduced by Section 11 of the Criminal Law Amendment Act, 1885 at a time when homosexuality was illegal only as it related to the act of buggery.
Section 11 provided, “Any male person who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be guilty of a misdemeanour, and, being convicted thereof, shall be liable, at the discretion of the Court, to be imprisoned for any term not exceeding one year with or without hard labour.”
This provision the Judge said, had the effect of making all homosexual acts of gross indecency illegal.
He explained in his ruling that because of colonial legacy, the Offences Against the Person Act was introduced as part of the laws of St. Kitts & Nevis by Act 7 of 1873, noting that Section 56 retained its original form; while Section 57 was amended in 2012 to increase the maximum penalty for indecent assault from four to 10 years.
Section 57 of the Act he went on to note provides: “Any person who attempts to commit the said abominable crime or is guilty of any assault with intent to commit the same, or of any indecent assault upon any male person, commits a misdemeanour, and, on conviction, shall be liable to be imprisoned for a term not exceeding ten years, with or without hard labour.”
He said that the reference to ‘the abominable crime’ is a reference to the crime of buggery; and notably that the offences under sections 56 and 57 are committed irrespective of whether the act takes place in public or in private, and regardless of the age of the participants involved, and whether or not they are consenting.
Referencing the supremacy clause of the St. Kitts Constitution which declares that any law inconsistent there with ought to be declared void to the extent of its inconsistency, Justice Ward said that the guarantees provided for in Sections 3 and 12 were contravened by Sections 56 and 57.
Further, he noted that the right not to be discriminated against based on sex is guaranteed under Sec-tion 15 of the Constitution.
He noted, however, that none of the rights were absolute; they are subject to reasonable limitations imposed by the Constitution itself and to respect for the rights and freedoms of others and for the public interest.
Nonetheless, referencing a plethora of case law authorities in his analysis of the breaches of Sections 56 and 57 in relation to the constitutional guarantees to which the claimants are entitled, Justice Ward found that their right to privacy, freedom of expression and protection from discrimination on the basis of sex, had been contravened.
“Sections 56 and 57 of the Act are incompatible with the right to freedom of expression guaranteed by sections 3 and 12 of the Constitution is irresistible,” he asserted.
Meanwhile; noting the claimants’ case that sections 56 and 57 of the Act violate the right to equality of treatment by discriminating against gay men, the Judge said that a person’s right not to be discriminated against based on his or her sex is infringed when he or she is discriminated against on the basis of his or her sexual orientation.
“It therefore violates their rights not to be discriminated against on the basis of their sexual orientation,” he said.
Stating that the selection of an intimate partner is a private and a personal choice between same-sex consenting adults, Justice Robertson back in July stuck down Antigua and Barbuda’s buggery laws which were challenged by gay rights activist Orden David and the Women Against Rape Inc., (WARI).
Both cases bear semblance and relied upon the judgment in the Guyanese case mounted by a group of 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.
