Types of criminalisation

  • Criminalises sex between men
  • Criminalises sex between women
Commonwealth member state
Sexual Offences Act 1995, S. 12 Buggery

Section 12 of the Sexual Offences Act criminalises “sexual intercourse per anum by a male person with a male person or by a male person with a female person.” It applies only to same-sex intimacy between men and attracts a maximum sentence of 15 years in prison.1

Sexual Offences Act 1995, S. 15 Serious Indecency

Section 15 of the Sexual Offences Act criminalises any sexual act between two adults of the same sex. It applies to sexual acts both between men and between women and attracts a maximum penalty of 5 years in prison.2

Enforcement

2017

The US Department of State Human Rights report on Antigua and Barbuda observed that the laws that criminalise same-sex sexual activity were not enforced during 2017.

2015

The US Department of State human rights report on Antigua and Barbuda in 2015  similarly noted that ‘the law [prohibiting consensual same-sex sexual activity] was not strictly enforced’ during 2015. However, it highlighted ‘one report of police brutality against a well-known transgender individual. On September 12, police apprehended this individual for following another car. While in custody, the individual stated that the police severely beat him, and as a result he lost sight in his right eye . . . one organized LGBTI group claimed that they believe the police will cover up the incident.’

Deputy Police Commissioner, Joseph Hughes defended the police in Antigua & Barbuda: ‘We do not discriminate. That is the policy of the department that we do not discriminate against anyone regardless of their sexual orientation. A number of rights are enshrined in our Constitution and the police department seeks to enforce those rights.’

We do not discriminate against anyone regardless of their sexual orientation.

Deputy Police Commissioner Joseph Hughes

2014

A report of the Immigration and Refugee Board of Canada indicates that the law is not actively enforced in Antigua and Barbuda. A representative of the Coalition of Vulnerable Communities (CVC) and current worker in the government’s Gender Affairs department stated that he was ‘not aware of any recent arrests or prosecutions for consensual same-sex sexual acts between consenting adults under these laws’. However, another respondent, a worker from the LGBTI rights group, MESH, indicated that some arrests have been made where two people were caught in public, but these individuals were usually released after a couple of days.

2011

The UPR delegation from Antigua & Barbuda noted that “Criminalization was on the books as far as the law was concerned, however, it was only in the very rare instances that the law had actually been enforced.”

Statements by Public Figures

2018

In April Prime Minister Gaston Browne has admitted that the country may eventually have to bend to global pressure to repeal laws banning homosexual activity.

We have to be at least aware that these discussions are taking place so that we can start to condition our mind that eventually, there will be changes.

Prime Minister Gaston Browne

2016

The government issued a public statement stating that,  ‘All persons irrespective of sex, sexual orientation, or gender identity are entitled to enjoy in Antigua & Barbuda the protections provided for by our constitution and by international human right law.’ It added: ‘Antigua & Barbuda does not tolerate any acts of violence or discrimination against members of the lesbian, gay, bisexual, transgender and intersex community and maintains their right to protection under local law and international law. The government of Antigua & Barbuda upholds the core legal obligations of states with respect to protecting the human right of LGBTI people.’ Minister of Information, Nicholas Melford, indicated that the statement was prompted by the remarks from journalist and former Queen of Carnival Takesha Lavann who spoke publicly about leaving the country after coming out as a lesbian. Lavann had stated that ‘I don’t want to be added to the list of LGBT members who have been slaughtered, who have been killed.

In August, following the removal of criminalising laws by the Belize Supreme Court, the Cabinet in Antigua & Barbuda said: “the buggery law will remain unchanged”, but also acknowledged that a similar result would likely follow in Antigua & Barbuda, should an interest group pursue this matter in the courts, noting that “our jurisprudence is similar.”

In May, Samantha Marshall, the Minister of Social Transformation stated in an interview with the Antigua Observer: ‘I think the law, as it was, is somewhat antiquated. To be honest I don’t know that it is something that is enforced at this stage and serves any purpose (and) so should be removed.’ She added:‘… as the Minister responsible for gender affairs I have no difficulty in making a recommendation to Cabinet for the removal of that part of the legislation.’

I think the law, as it was, is somewhat antiquated. To be honest I don’t know that it is something that is enforced at this stage and serves any purpose (and) so should be removed.

Minister Samantha Marshall

2014

In March, Attorney General, Justice L. Simon, claimed that gay visitors are safe travelling to Antigua and Barbuda. In reaction to calls to decriminalise, he responded:

‘Give us time, and stop bullying. What is clear is that the law, which incidentally is an English colonial relic dating back to 1873, has not been enforced – at least not in recent times’

Justice L. Simon

Persecution and Discrimination

2017

Freedom House’s Freedom in the World 2018 report stated that the “marginalising of the LGBT community affected its ability to engage fully in the political processes.”

2016

The US Department of State Human Rights Report on Antigua and Barbuda for 2015 observed that “there were limited reports of discrimination based on sexual orientation or gender identity in a variety of settings”, adding that “there were no reports of violence committed against LGBTI persons during the year due to their real or perceived sexual orientation.”

2013

The Immigration and Refugee Board of Canada, in correspondence with representatives of LGBTI groups in Antigua and Barbuda, found reports of violence and general societal discrimination. According to the report, “many LGBT people do not report violence to the police for multiple reasons, such as fear of revealing their sexual orientation, fear of stigma and discrimination or fear due to past experience with police or hearing the experiences of other LGBT people.” One case that was reported involved a man who had a bottle thrown at his head. In another, a man was stabbed and robbed. Sometimes police would take longer to respond in cases involving LGBTI people than in others.

Legislative News

2016

The delegation from Antigua & Barbuda to the Universal Periodic Review noted that “it would take time to sensitize the Antiguan society, which was very moral and religious’adding that “if the Government were to force these issues, the reaction of the society would be negative and regressive.” Recommendations to decriminalise were noted, but did not enjoy the support of Antigua & BarbudaOf the recommendations relating to sexual orientation and gender identity, only the following recommendation from Mexico was accepted:

[Antigua and Barbuda should] continue the efforts to ensure that national legislation prohibits discrimination on the grounds of disability, sexual orientation, gender identity and social status.

Recommendation 76.13 Mexico

Responding to UPR recommendations to decriminalise same-sex activity, Senator Maureen Payne-Hyman (Parliamentary Secretary in the Ministry of Legal Affairs) remarked that, “It is crime, but no one is ever prosecuted under those provisions… Those are laws we inherited and they’re still there.’ She emphasised that there was a need for a shift in public attitudes before legislative changes could be made: “Personal prejudices are something we have to change over time. We have to sensitise people. Even if you legislate against that, you’re still going to have issues. You cannot force that down the psyche of the people in Antigua & Barbuda. It’s an issue that I know the international community take every seriously.”

2014

At a National Youth Forum political parties were asked whether there was a possibility of the buggery law being decriminalised. In responding, they observed that “repealing sodomy must be a bottoms-up approach, with society leading the way, instead of top down, with the legislators taking charge.”

2011

The Government rejected recommendations to decriminalise consensual same-sex conduct: “The Government of Antigua and Barbuda seeks to recognize the human rights of all citizens. However the issue of discrimination based on sexual orientation is one which remains a matter of concern and is of the view that implementing polices based on sexual orientation requires extensive public consultation and education given the current pre- disposition of its people and their religious influences and indoctrination.”

Footnotes
1. Sexual Offences Act 1995, S. 12 Buggery

“(1) A person who commits buggery is guilty of an offence and is liable on conviction to imprisonment – (a) for life, if committed by an adult on a minor; (b) for fifteen years, if committed by an adult on another adult; (c) for five years, if committed by a minor. (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.” Full text here.

2. Sexual Offences Act 1995, S. 15 Serious Indecency

“(2) A person who commits an act of serious indecency on or towards another is guilty of an offence and is liable on conviction to imprisonment – (a) for ten years, if committed on or towards a minor under sixteen years of age; (b) for five years, if committed an or towards a person sixteen years of age of more.” Full text here.

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