a local organisation working to promote the rights and interests of the fa’afafine population.
Types of criminalisation
- Criminalises LGBT people
- Criminalises sexual activity between males
Same-sex sexual activity is prohibited under the Crimes Act 2013, which criminalises acts of ‘sodomy’. This provision carries a maximum penalty of five years’ imprisonment. Only men are criminalised under this law. Additionally, the law criminalises the keeping of a place for ‘indecent acts’ between men, punishable with seven years’ imprisonment.
The law was inherited from New Zealand during the colonial period, in which the New Zealand criminal law, itself based upon English criminal law, was imposed upon Samoa. Although New Zealand decriminalised in 1986, it maintained the criminalising provisions at the time Samoa gained its independence in 1962, and Samoa retained the provision upon independence and continues to criminalise same-sex sexual activity today. In 2013 Samoa updated its sexual offences and decriminalised ‘female impersonation’, which had previously impacted the indigenous Fa’afafine population.
There is no evidence of the law being enforced, and it appears to be largely obsolete in practice. Nevertheless, the mere existence of this provision is itself a violation of human rights and underpins further acts of discrimination (see further).
There have been limited reports of discrimination and violence being committed against LGBT people in recent years, though there is some evidence of isolated violent incidents as well as societal and familial discrimination against the local Fa’afafine community.
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. Importantly, the 2013 changes included the decriminalisation of female ‘impersonation’, affirming the rights of Fa’afafine Samoans, a traditional gender non-conforming community. Notably, the term ‘sexual connections’ was defined broadly under section 50 to include oral and anal sex, and was drafted in a gender-neutral manner. However, section 67 continued to criminalise sodomy.
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.
In a further sign of the government’s engagement on LGBT issues, the leading LGBT organisation in Samoa was appointed a member of the country’s newly formed advisory board to the National Human Rights Institute (NHRI), established in 2013 within the Office of the Ombudsman.
Samoa supported the 2011 UN Human Rights Council Joint Statement to end acts of violence based on Sexual Orientation and Gender Identity.
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.
Although Samoa continues to criminalise same-sex sexual activity, in recent years it has updated its other sexual offence provisions and provides some protection for other marginalised groups.
The US Department of State report found that the law is not enforced. This has been the consistent finding of these reports in recent years.
The US Department of State report noted that there were no reports of societal violence based on sexual orientation and gender identity, though there were isolated cases of discrimination. Society accepted the Fa’afafine community, which plays a prominent role in the country, but members of the community reported some incidents of discrimination.
In June, the country’s main censor, Leiataua Niuapu Faaui, announced that a biopic on Sir Elton John, ‘Rocketman’, would be banned, telling local media that it was incompatible “with cultural and Christian beliefs here.” In 2009, Samoa also banned ‘Milk’, a film about American gay rights activist Harvey Milk, for similar reasons.
A report by the Samoan Ombudsman noted that verbal abuse against the Fa’afafine community was so common that many do not see it as worthy of reporting. Furthermore, young boys showing ‘feminine traits’ were subjected to severe violence at the hands of their family, and that this was not reported to police due to victim intimidation, fear of reprisals or of being disowned, and a lack of redress.
(2) Sodomy is complete upon penetration.
(3) It is no defence to a charge under this section that the other party consented.” Full text.
a regional human rights organisation working to advance the rights of all people, including LGBT people in the Pacific.
Tonga criminalises same-sex sexual activity between men and between women. Sentences include a maximum penalty of ten years’ imprisonment.
Tuvalu criminalises same-sex sexual activity between men. Sentences include a maximum penalty of fourteen years’ imprisonment.
The Cook Islands criminalises same-sex sexual activity between men. Sentences include a maximum penalty of seven years’ imprisonment.
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