High Court rules Antigua and Barbuda’s buggery law contravenes Constitutional rights of citizens

The Eastern Caribbean Supreme Court (Antigua Circuit) has ruled that Sections 12 AND 15 of the Sexual Offences Act are unconstitutional. The judgment was handed down moments ago.

Robertson, J: Introduction and Findings. The selection of an intimate partner is a private and a personal choice.

This court was asked to consider the legislation which criminalizes certain sexual activities between same sex consenting adults.

This court has determined, for the reasons set out hereunder, that sections 12 and 15 of the Sexual Offences Act 1995 are unconstitutional as they contravene sections 3, 12, and 14 of the Constitution of Antigua and Barbuda. Specifically, this court declares that:

a. Section 12 of the Sexual Offences Act 1995 offends the right to liberty, protection of the law, freedom of expression, protection of personal privacy and protection from discrimination on the basis of sex.

In so far as section 12 of the Sexual Offences Act 1995 is inconsistent with the rights of persons sixteen (16) years and older to engage in consensual sexual intercourse per anum in private, and to the extent of that inconsistency section 12 of the Sexual Offences Act 1995 is void.

Section 15 of the Sexual Offences Act 1995 offends the right to liberty, protection of the law, freedom of expression, protection of personal privacy and protection from discrimination on the basis of sex, in so far as section 15 of the Sexual Offences Act 1995 is inconsistent with the rights of persons sixteen (16) years and older to engage consensually and in private in the sexual acts described in section 15(3), and to the extent of that inconsistency section 15 of the Sexual Offences Act 1995 is void.

[3] In order to give effect to the second declaration, this court orders that subsection 15(2) (b) of the Sexual Offences Act 1995 be read as if the words “a male person and a female person” were deleted and replaced with the word “persons”,. This court also orders that the defendant is to pay the costs of the claimants in an amount to be assessed if.not agreed within 21 days.

Attorney Andrew O’Kola led by Senior Counsel Douglas Mendes represented an openly homosexual man and the Women Against Rape group, who challenged the validity of sections of the Sexual Offences Act, arguing that it offended their constitutional rights.

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A constitutional challenge against Antigua and Barbuda’s law criminalizing buggery has been filed as part of the defense of two men accused of sexually assaulting a woman. The allegations have not been proven in court.

Antigua and Barbuda’s ban on buggery defines the act as “sexual intercourse per anum” either between two men or between a man and a woman, whether consensual or not. It carries a punishment of 15 years in prison if committed by an adult. Minors can be jailed for five years if convicted of buggery.

The two male defendants have pleaded not guilty to the charges of buggery and rape.

If the constitutional challenge to the buggery law is successful, it could end one of the harsh sanctions against gay men in the island nation. However, the section criminalizing “serious indecency,” defined as sex acts other than intercourse between people of the same sex, is not within the scope of this challenge, and would likely remain on the books.

Courts in Trinidad and Tobago and in Belize have recently struck down those countries’ buggery laws as unconstitutional. The Inter-American Commission on Human Rights (IACHR) has also called on Jamaica to repeal its buggery law, although a direct challenge to the law is still pending at the commission.

The Eastern Caribbean Alliance for Diversity and Equality (ECADE), an umbrella group for LGBT rights groups in the Caribbean, announced plans in 2019 to file coordinated court challenges to all of the buggery laws remaining in the region. ECADE could not be reached for this story.

Trans activist Alexa Hoffman filed a complaint against Barbados’ buggery laws at the IACHR in 2018, although a decision has not yet been rendered.

Challenges to buggery laws in Dominica and in St. Vincent and the Grenadines were filed in their domestic courts in July 2019 and remain pending.

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