A series of cases underway in the Eastern Caribbean seek to challenge colonial-era laws that criminalise ‘buggery’, ‘unnatural connexion’, ‘gross indecency’ and ‘serious indecency’, as part of a local, regional and international collaboration that began in 2015. These cases challenge some of the last remaining vestiges of criminalisation of LGBT people in the Americas and have the potential to wipe out the scourge of discriminatory criminal law regimes that have been in place since colonial times.
Several countries in the Eastern Caribbean retain British colonial-era laws that make it an offence for people of the same sex to engage in consensual sexual activity in private. With technical assistance from the Trust and a team of local and regional lawyers, activists in the region have embarked on strategic litigation to challenge these laws in Antigua & Barbuda, Barbados, Grenada, St Kitts & Nevis and St Lucia as a violation of domestic constitutional law and international human rights law.
For each of these countries, save Barbados, the Eastern Caribbean Court of Justice is the court of first instance, with the Eastern Caribbean Court of Appeal being the first appellate court and the Judicial Committee of the Privy Council being the final appellate court. Barbados has its own first instance and appeal court, with the final appellate court being the Caribbean Court of Justice.
The criminalisation of consensual same-sex sexual conduct across the English-speaking Caribbean was a legacy of British colonial rule. Globally, more than 70 jurisdictions still make private, consensual same-sex intimacy a crime. Of these criminalising jurisdictions, half are within the Commonwealth and nine are in the Commonwealth Caribbean: Antigua & Barbuda, Barbados, Dominica, Grenada, Guyana, Jamaica, St. Kitts & Nevis, St. Lucia and St. Vincent & the Grenadines.
The criminal justice system in these countries is based on the principles of English common law. Sexual offences are outlined in the respective Criminal Codes in Grenada, St Lucia and St Vincent & the Grenadines, and in Sexual Offences Acts in Antigua & Barbuda, Barbados, Dominica and Guyana. Jamaica and St Kitts & Nevis retain provisions criminalising same-sex intimacy in the respective Offences Against the Person Acts, transposed from the 1861 English legislation of the same name. In other jurisdictions, the provision originated in the model Criminal Code (originally for Jamaica) drafted by R.S Wright, an English barrister in 1870, which in turn was based on the British colonial Indian Penal Code of 1860.
While the criminal provisions vary somewhat depending on the country, the laws in force today in the Eastern Caribbean still include one or more of the following types of provisions:
‘A person who commits buggery is guilty of an offence… In this section “buggery” means sexual intercourse per anum...
A person who commits an act of serious indecency on or towards another is guilty of an offence… 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.’
These offences, while not all limited in their application to LGBT people, carry sentences ranging from two years to life imprisonment, and are widely recognised internationally to disproportionately criminalise and stigmatise the LGBT community, regardless of whether or not the laws are enforced. They foster and enable discrimination, harassment and violence by both State and non-State actors and put LGBT people on the margins of society.
The cases argue that the laws criminalising consensual same-sex sexual activity violate several constitutional human rights guarantees in the respective countries, including the rights to dignity, privacy, equality, non-discrimination, and freedom of expression.
They further argue that the criminal laws violate international law including:
|The International Covenant on Civil and Political Rights||Articles 2, 17, 19, 26|
|The Convention on the Elimination of All Forms of Discrimination Against Women||
|The American Convention on Human Rights||Articles 7,11,13, 24|
Who is involved
The cases originated after a litigation and advocacy workshop held in Grenada in 2015 organised by United & Strong Inc. St Lucia and GrenCHAP Grenada, with strategic and technical assistance from the Human Dignity Trust and the participation of a range of experts, allies and partners from across the region.
The cases are being advanced under the auspices of the subsequently formed Eastern Caribbean Alliance for Diversity & Equality (ECADE), with a team of local, regional and international lawyers advising, including a team from the Human Dignity Trust.
The litigants in all cases are represented by local and regional attorneys and Senior Counsel.