Saturday 15 December, 2018

High Court rules to decriminalise sex between consenting adult males

A ruling by High Court judge Devindra Rampersad has enforced that sexual activity between consenting adults of the same sex should not be criminalised.

The ruling, which was delivered on September 20, 2018, follows the initial historic decision on April 12 in the matter of Jason Jones v the Attorney General, which challenged Sections 13 and 16 of the Sexual Offences Act as unconstitutional.

Representing the State, Fyard Hosein, SC, asked for a 45-day stay in order to lodge an appeal, indicating again the State’s intent to take the matter to the Privy Council, however, this was denied.

Although the legislation was not struck out completely, the ruling ensures that consenting adults will not be liable to criminal charges if engaging in anal sex or intimate sexual acts which do not include penetration. 

It was ordered that the words 'without consent' be inserted into Section 13 (2) of the Act to state:

"In this section "buggery" means sexual intercourse without consent per anum by a male person with a male person or by a male person with a female person.”

It was also ordered that Section 16 of the Act be amended to state 'persons' instead of 'a male person and female person':

"16. (1) A person who commits an act of serious indecency on or towards another is liable on conviction to imprisonment for five years.

(2) Subsection (1) does not apply to an act of serious indecency committed in private between (a) a husband and his wife; (b) persons, each of whom is sixteen years of age or more, both of whom consent to the commission of the act..."

An act of indecency is described 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".

The ruling refers to the act of sexual intercourse between consenting adults, including same-sex partnerships, and does not refer in any way to same-sex marriage.

Jones, who was not present at the hearing, was represented by attorney Rishi Dass.

In his historic ruling on April 12, Rampersad acknowledged the submission and objections made by religious groups but said the religious beliefs of some are not held by all. He said all citizens are entitled to be protected under the Constitution.

"This court must and will uphold the Constitution to recognize the dignity of even one citizen whose rights and freedoms have been invalidly taken away," said Rampersad said in the initial ruling on April 12.

Jones said after the April ruling that the matter concerns the human rights of all citizens.

“What I think the judge pointed out was ‘here every creed and race find an equal place’ and I think we must all come together now and embrace each other in true love and respect. This is not about LGBT, this is about the rights and freedoms enshrined in our Constitution,” he said.

 

What did the law state?

Section 13 of the Sexual Offences Act refers specifically to buggery.  Section 16 refers to serious indecency:

13(1). A person who commits the offence of buggery is liable on conviction to imprisonment for 25 years. (2) In this section 'buggery' means sexual intercourse per anum by a male person with a male person or by a male person with a female person.

16 (1). A person who commits an act of serious indecency on or towards another is liable on conviction to imprisonment for five years.

(2) Subsection (1) does not apply to an act of serious indecency committed in private between (a) a husband and his wife; (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; or (c) persons to whom section 20(1) and (2) and (3) of the Children Act apply.

(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.

 

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