Types of criminalisation

  • Criminalises sex between men
Commonwealth member state
Crimes Act 1969, Section 154 Indecency Between Males

Section 154 criminalises “indecent acts” between men, with a penalty of up to five years imprisonment. It is further provided that consent is not a defence to a charge under this section.1

Crimes Act 1969, Section 155 Sodomy

Section 155 criminalises sodomy between men, with a penalty of up to seven years imprisonment. It is further provided that consent is not a defence to a charge under this section.2

Enforcement

2017

There are no reports suggesting actual enforcement of the Cook Islands anti-gay laws. On the contrary, a number of travel websites, whilst urging against public displays of affection in order not to offend local religious beliefs, speak of a generally accepting environment for gay tourists.

A new draft Crimes Bill 2017 would overturn the current law and decriminalise homosexuality by eliminating Sections 154 and 155 of the law. However, the passing of the Bill was delayed due to the 2018 elections, and there are no reports to indicate that the Bill has since been implemented.

Statements by Public Figures

2017

In August, Tevai Matapo, a senior church minister and the President of the Religious Advisory Council, said after the new Bill that decriminalises homosexuality had been introduced: “So if a person chooses to live a homosexual, bisexual, or transgender lifestyle, he or she is choosing a perversion of God’s good design. The only hope for the abolition of the hatred and mistreatment of any group of people, including those engaged in sexual sin, is in submitting to God and being washed clean by Jesus Christ.”

So if a person chooses to live a homosexual, bisexual, or transgender lifestyle, he or she is choosing a perversion of God’s good design.

Tevai Matapo, Religious Advisory Council President

2013

In June, Leader of the Opposition, Wilkie Rasmussen, criticised the Prime Minister’s comments as regards the issue of gay marriage (below), arguing that debate must take place in order to gather a consensus: “to me it appears to be a comment designed to win endorsement from the right conservative religious and even fundamentalist sector of our society. It was a shallow pitch clamouring for popular support when he very well knows that the Constitution of this country does not allow discrimination of any sort.”

In April, following the legalisation of gay marriage in New Zealand, Cook Islands Prime Minister, Henry Puna, said there was no chance of the Cook Islands doing the same.

Persecution and Discrimination

2015

According to a report released in January, there is a level of discrimination and stigma against LGBT people in the Cook Islands community. However, a lack of information means the situation is not entirely clear.

Legislative News

2019

In November, a parliamentary committee indicated that provisions criminalising consensual same-sex sexual activity between men, previously removed from the 2017 draft Crimes Bill, were to be reinstated. The chair of the committee, Tingika Elikana MP, reportedly remarked that the decision was driven by “widespread public support”.

Joel Clarke (Amnesty International campaigner in Australia) observed that “two years ago, the Cook Islands made great progress by finally effectively decriminalising homosexuality. Within those two years though, there’s been a concerted campaign effort to wind back those laws and this signal from the committee is exactly that. It’s a signal that members of parliament are bowing to pressure of church groups and other groups, that are classifying homosexuality along things like witchcraft and criminalising them.”

The provisions will also be gender-neutral, thereby also criminalising consensual same-sex sexual activity between women.

2017

As stated above, the government introduced the draft Crimes Bill 2017, which removed provisions of the 1969 Act that criminalised homosexuality. However, the Bill does not make provision for other matters, such same-sex marriage.

2014

Solicitor-General, Kim Saunders, speaking on the review of the Cook Island Crimes Act which is currently underway, spoke of the need to reform some of the provisions on sexual offences: “It is also important to update the sexual violation provisions. For example the new Bill will remove the legislative protection provided to a husband who rapes his wife. It is important that the law recognises that in our society sexual offending can occur within a marriage, and will not be tolerated.” The Solicitor-General also indicated a need to remove some outdated provisions which are no longer in effect. Whilst there was no indication as to whether sodomy provisions will be removed as a part of the new crimes act, given the non-enforcement of current laws, there is certainly a strong possibility. Reports suggest that while the new act is not currently ready to be sent to parliament, it is not “far off”.

Footnotes
1. Crimes Act 1969, Section 154 Indecency Between Males

“(1) Every one is liable to imprisonment for a term not exceeding five years who, being a male,-

(b) Does any indecent act with or upon any other male; or

(c) Induces or permits any other male to do any indecent act with or upon him.” Full text.

2. Crimes Act 1969, Section 155 Sodomy

“(1) Every one who commits sodomy is liable-

(c) In any other case, to imprisonment for a term not exceeding seven years.” Full text.

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