Types of criminalisation

  • Criminalises sex between men
Commonwealth member state
Crimes Act 2013, Section 67 Sodomy

Section 67 criminalises sodomy committed between men with a penalty of up to five years imprisonment.1

Crimes Act 2013, Section 68 Attempt to Commit Sodomy

Section 68 prohibits attempts to commit sodomy with a penalty of up to five years imprisonment.2

Crimes Act 2013, Section 71 Keeping Place of Resort for Homosexual Acts

Section 71 provides further sanctions against people who are involved in the use of premises used for the commission of “indecent acts” between men. The penalty under this Section is up to seven years imprisonment.3

Enforcement

2017

The US Department of State Human Rights Report on Samoa suggested that authorities do not actively enforce the law.

Statements by Public Figures

2017

Speaking at his weekly media conference in December, Samoa‘s Prime Minister Tuilaepa Sailele Malielegaoi called same-sex marriage an abomination and a “Sodom and Gomorrah practice.”

[Same-sex marriage is a] Sodom and Gomorrah practice.

Tuilaepa Sailele Malielegaoi, Samoa Prime Minister

2013

In October, the Samoan Prime Minister reportedly criticised the marriage of a gay Samoan man in New Zealand as inappropriate: “I now declare you man and husband and that is very inappropriate…everything is upside down.”

With regard to the newly enacted Crimes Act 2013, the Attorney General, Aumua Ming Leung Wai, said in May: “with Samoan society where we accept fa’fafines [sic], males who are more feminine, I don’t think it’s appropriate for us to make it illegal for them to wear women’s clothes. And we have several fa’afines [sic] who come to work and they wear women’s clothes and under the crimes ordinance that is an offence. And I think that’s certainly something that we had to remove from our law books.”

In April, Fa’afafine Association President So’oalo Roger Stanley spoke against “stirring” things up with the question of gay marriage: “There are so many reasons out there, not only that our Prime Minister is now our patron and he is strongly opposing the gay marriage bill of New Zealand. Basically what it comes down to is our Christian values and principles, and as far as the culture and religion. Because of the fa’afafine that we identify ourselves closely with, simply because it’s very cultural oriented and so the cultural norms is [sic] that suited us well in our society. So you see in that same concept that we are also taken as another strong sector where we opposed gay marriage.”

2010

In June, the Samoa Law Reform Commission recommended the abolition of the sodomy laws, prompting widespread criticism from Church leaders. The Samoan Government subsequently rejected the recommendation as unacceptable in a Christian country.

Persecution and Discrimination

2017

The US Department of State Human Rights Report for Samoa stated that “there were no reports of societal violence based on sexual orientation or gender identity, there were isolated cases of discrimination. Society publicly recognized the transgender Fa’afafine community; however, members of the community reported instances of social discrimination.”

Legislative News

2016

During its second UPR cycle, Samoa noted recommendations to decriminalise consensual same-sex activity between adults and to protect and prohibit discrimination against LGBT persons.

2013

In May, the Samoan Government updated its criminal law in the Crimes Act 2013, including sexual offences, making some positive steps with respect to LGBT rights. In particular, under Section 50, “sexual connections” was defined to include oral and anal sex, and by inference allowing sexual contact between males if it is consented to. However, Section 67 continues to criminalise sodomy.

Importantly, the 2013 changes included the decriminalisation of female impersonation, affirming the rights of the Samoan fa’afafine community.

In a further sign of the government’s engagement on LGBT issues, the leading LGBT organisation in Samoa has been appointed a member of the country’s newly formed advisory board to the National Human Rights Institute (NHRI). The NHRI was established in 2013 within the Office of the Ombudsman, but no work has yet been commenced on LGBT rights issues. Lesbians and gay men are not as visible but the transgender community is active and organised through the association representing transgender people, the Fa’afafine Association. The Prime Minister is Chair of the Fa’afafine Association.

Both sexual orientation and perceived or actual HIV status were added as protected grounds to employment laws in Samoa in 2013 through enactment of the Labour and Employment Relations Act 2013.

2011

During its first UPR cycle, Samoa rejected recommendations to repeal laws criminalising relations between consenting adults of the same sex. The delegation stated, however, that: “[t]here have not been formal charges before the Courts based on sexual orientation and gender identity and if so, the courts would rule them out as discriminatory. The Constitution of Samoa protects right of every person regardless of gender. Decriminalizing sexual activity of sodomy is not possible at this time because of cultural sensitivities and Christian beliefs of the Samoan society. The Samoa Law Reform Commission’s work on considering domestic legislation is a work in progress/ongoing.”

Further, the UN Working Group report explained that: “Samoa noted the gaps and weaknesses in its legislative framework on upholding equality and non-discrimination based on sexual orientation, and that relevant legislation was being reviewed by the Samoa Law Reform Commission. Samoa indicated that Fa’afafine, gays and lesbians were integral members of Samoan society and were heirs to family chiefly titles and lands through extended family consensus, as all men and women of its society were. However, sexual orientation was a sensitive issue in Samoa given the religious and cultural beliefs of mainstream society. Nonetheless, Samoa was confident that education, awareness and sensitization would pave the way for societal acceptance and prevention of discrimination that might arise out of sexual orientation.”

Samoa supported the 2011 UN Human Rights Council Joint Statement to end acts of violence based on Sexual Orientation and Gender Identity.

Footnotes
1. Crimes Act 2013, Section 67 Sodomy

“(1) A person who commits sodomy is liable:

(a) where the act of sodomy is committed on a female, to imprisonment for a term not exceeding 7 years; or

(c) in any other case, to imprisonment for a term not exceeding 5 years.
(2) Sodomy is complete upon penetration.
(3) It is no defence to a charge under this section that the other party consented.” Full text.

2. Crimes Act 2013, Section 68 Attempt to Commit Sodomy

“A person is liable to imprisonment for a term not exceeding 5 years who:

(a) attempts to commit sodomy; or

(b) assaults any person with intent to commit sodomy.” Full text.

3. Crimes Act 2013, Section 71 Keeping Place of Resort for Homosexual Acts

“A person is liable to imprisonment for a term not exceeding 7 years who:

(a) keeps or manages, or knowingly acts or assists in the management of, any premises used as a place of resort for the commission of indecent acts between males; or

(b) being the tenant, lessee or occupier of any premises, knowingly permits the premises or any part thereof to be used as a place of resort for the commission of indecent acts between males; or

(c) being the lessor or landlord of any premises, or the agent of the lessor or landlord, lets the premises or any part of the premises with the knowledge that the premises are to be used as a place of resort for the commission of indecent acts between males, or that some part of the premises is to be so used, or is wilfully a party to the continued use of the premises or any part thereof as a place of resort for the commission of the indecent acts.” Full text.

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