Antigua Court Rules Section Of The Sexual Offences Act Unconstitutional

(CMC) – The Eastern Caribbean Alliance for Diversity and Equality (ECADE) has welcomed a ruling by the Eastern Caribbean Supreme Court (ECSC) that the island’s anti-buggery law is unconstitutional.

“ECADE recognises all lesbian, gay, bisexual, transgender, queer and intersex (LGBTQI) people in Antigua and Barbuda, whose lives, livelihoods and happiness are no longer compromised by these outdated laws.

“The process of litigation is important, as it underscores how these laws contribute to the stigmatisation of LGBTQI people, how they legitimise hate speech, discrimination and violence and tear at the fabric of our society,” said ECADE executive director Kenita Placide.

“Our governments have sworn to protect and uphold the rights of all and act in a manner that promotes the prosperity and well-being of all. This judgement is in keeping with this commitment,” Placide continued.

The ECSC Tuesday ruled that sections of the Sexual Offences Act contravene the constitutional rights of citizens.

The ruling came after an openly homosexual man and the Women Against Rape group argued that it offended their constitutional rights.

Executive Director of Women Against Rape, Alexandrina Wong, said while the “ journey was long and challenging … We made it working together.

“May we continue to challenge and overcome the harmful beliefs and practices that hinder the full rights, dignity and freedom of people everywhere. This will open up new avenues for the people of Antigua and Barbuda to work together toward greater equality, as we are not, for the first time talking about LGBTQ+ people as criminals,” Wong stated.

Attorney Andrew O’Kola, who was led by the Trinidad-based Senior Counsel, Douglas Mendes, represented the claimants said “this victory is a step closer to achieving an end to discrimination against persons whose sexual preferences in the privacy of their home may differ from others.

“The law is no longer seeking to police or legislate against what people do in their homes. Each consenting adult has a right to love and express love in the manner they choose, without the state’s intrusion. This monumental decision gives those oppressed by archaic sexual offences provisions hope that they too can benefit from their fundamental rights as secured by a living constitution as interpreted by the court of law,” O’Kola said.

O’Kola noted that Antigua and Barbuda now lead the Eastern Caribbean as having recognised the illegality of punishing a person for who they love. Consensual love should never be a crime.

In the ruling, Justice Marissa Robertson noted that sections 12 and 15 of the Sexual Offences Act of 1995 contravene sections 3, 12, and 17 of the Antigua and Barbuda Constitution which speak to a person’s right to liberty, protection of law, freedom of expression and protection from discrimination on the basis of sex.

The Court also ruled that both sections 12 and 15 were “inconsistent with the rights of persons 16 years and older to engage in consensual sexual intercourse” in private.

The ECSC also ordered that the section of the Sexual Offences Act which singles out that intercourse must be between “a male person and a female person” be deleted and replaced with the word “persons” in keeping with the rights specified in the constitution.

At present, the law stipulates that a person who commits buggery (sexual intercourse by a male person with a male person or by a male person with a female person) 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 15 years, if committed by an adult on another adult; (c) for five years, if committed by a minor.

Section 15 which punishes a person for sexual indecency excludes charges against (a) a husband and his wife; or (b) a male person and a female person each of whom is 16 years of age or more.