(St. John’s, Tuesday, 05 July, 2022) The High Court of Justice for Antigua and Barbuda today declared the laws which criminalise consensual, private sexual acts between persons above the age of consent to be unconstitutional. The Honourable Justice Marissa Robertson held that sections 12 and 15 of the Sexual Offences Act 1995, known as the buggery and serious indecency offences, contravene the Constitutionally guaranteed rights to liberty, protection of the law, freedom of expression, protection of personal privacy and protection from discrimination on the basis of sex.
As of today, these laws have been declared void to the extent that they apply to persons above the age of consent who engage consensually and in private in the sexual acts described. The offences of buggery and serious indecency continue to be in force in circumstances where the sexual acts are not consensual or involve minors below the age of consent.
The Eastern Caribbean Alliance for Diversity and Equality (ECADE) welcomes this outcome to the litigation launched in 2020, as part of a five-country legal challenge to these invasive and unconstitutional remnants of colonial law. 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(LGBTQI) people in Antigua and Barbuda, whose lives, livelihoods and happiness are no longer compromised by these outdated laws.
Executive Director of ECADE, Kenita Placide says, “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 tears at the fabric of our society. 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 judgment is in keeping with this commitment.”
Alexandrina Wong, a fierce advocate and Executive Director of Women Against Rape (WAR) adds, “The journey was long and challenging but 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.”
The litigation challenged these laws which are used not only to police sexuality but also create stigma and promote discrimination against individuals who are perceived to be members of the LGBTQ+ community. The Constitutional challenge highlighted how these outdated and ineffective laws serve only to maintain anti-gay sentiment that, according to recent attitudes surveys, are representative of fewer and fewer Caribbean people. Yet, these laws have been weaponised, based on unfounded and unproven fears, against LGBTQ+ people.
This landmark decision from Antigua and Barbuda confirms the country’s commitment to upholding human rights for all of its citizens. It is an important step towards protecting the rights of LGBTQ+ people across the Eastern Caribbean.
Further, this reinforces for all Antiguans, the right to privacy, dignity, freedom of expression and association. We note the positive impact especially for marginalised communities such as people living with disabilities and people living in poverty.
Our partners include a team of Caribbean lawyers and the Faculty of Law UWI Rights Advocacy Project (U-RAP). The legal team is led by Queen’s Counsel Douglas Mendes SC with Nadia Chiesa, assisted by Andrew O’Kola who acts as the counsel of record and Veronica S. P. Cenac, who is also the technical lead on the five-country strategy.
Adult, consensual, same-sex intimacy remains criminalised in seven Caribbean countries, all of which are members of the Commonwealth. Discriminatory Sexual Offences Laws and Criminal Codes in the islands date back to the British colonial era, and unfairly target LGBTQ+ people. Although custodial sentences are rarely imposed, those convicted under these laws can face sentences ranging from ten years to life imprisonment. Other constitutional challenges in Barbados, Saint Kitts and Nevis and Saint Lucia, are expected to be concluded before the end of 2022.
MESH Inc is a non-profit organisation on Antigua and Barbuda providing resources to meet the emotional and social needs of members of the LGBTQI community holistically.
Women Against Rape is a non-profit organisation established in 2008 in response to mounting rapes and sexual assaults in Antigua and Barbuda in 2008. Its mission is to promote health parity and victim justice through advocacy, education and direct services to victims affected by gender based and sexual violence including the LGBT community.
The Eastern Caribbean Alliance for Diversity and Equality Inc. (ECADE) is a network of organisations working across the eastern Caribbean. Drawing on the Universal Declaration of Human Rights which states that: “All human beings are born free and equal in dignity and rights” and “All are equal before the law and are entitled without any discrimination to equal protection of the law”, ECADE works to increase the competence of activists and conscientise the people of the eastern Caribbean for the advancement of LGBTQI and marginalised populations in the region. Learn more at http://www.ecequality.org or email email@example.com
The Faculty of Law UWI Rights Advocacy Project (U-RAP)
The Faculty of Law UWI Rights Advocacy Project (U-RAP) was established as a project of the Faculty of Law, The University of the West Indies in 2009. Since 2012, there are three Faculties of Law at the Cave Hill, Mona and St Augustine campuses of UWI. U-RAP’s mission is to promote human rights and social justice in the Caribbean by undertaking and participating in strategic litigation, socio-legal research and legal education in collaboration with Caribbean lawyers and Caribbean civil society organisations and by working with students of the Faculties of Law.
WeirFoulds LLP, one of Canada’s oldest law firms, has a long-standing commitment to upholding access to justice and giving back to the community. Nadia Chiesa, Chair of the Commercial Litigation Practice Group, is called to the bar in a number of jurisdictions in the Caribbean, and spearheads WeirFoulds’ pro bono human rights litigation initiative in the Caribbean which contemplates Constitutional challenges to current legislation offending fundamental rights in international law.
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