The Appeal Court has once again deemed as illegal, the act of buggery, even among consenting adults.
According to the court, “It matters not if the act is carried out between men and women, or men only, or married couples in the privacy of their own homes, it is still considered to be a criminal offence.”
The offence now carries a term of imprisonment of up to five years, a reduction from the previous 25 years.
The court also declared that the act of gross indecency between men, even if consensual, has also once again been deemed unlawful. For that offence a person can be sent to prison for up to two years.
However, that act remains lawful between married couples as well as consenting male and female couples who are not married and who are both over the age of 16, but only if it is carried out privately.
The findings were made earlier this week by two members of a three-judge panel as they overturned a 2018 High Court ruling in which a judge found that sections 13 and 16 of the Sexual Offences Act, which criminalises the acts, were unconstitutional.
Justice Devindra Rampersad, in delivering that ruling, had found in favour of Jason Jones, a gay man and LGBTQI+ activist who was born in Trinidad and Tobago but lives in the United Kingdom.
Jones had filed a constitutional motion challenging the legality of the sections on the contention they contravened his right to equality before the law and protection of the law.
Following the ruling, the Office of the Attorney General filed an appeal against the judge’s findings.
But in its judgment , Justices of Appeal Nolan Bereaux and Charmaine Pemberton both found that sections 13 and 16, which had expanded on section 61 of the Offences Against the Person Act (1925), were saved law, and were not open to judicial interference.
The third member of the panel, Justice Vasheist Kokaram, found otherwise. As far as he was concerned, just as Justice Devindra Rampersad had found in the High Court, sections 13 and 16 did not modify or expand on the corresponding sections in the 1925 Act, but had actually repealed and replaced it.
Given this, Justice Kokaram found that sections 13 and 16 were not saved law, and were in violation of sections 4 and 5 of the Constitution and, therefore, the State’s appeal should have been dismissed.
In his ruling, Justice Bereaux noted that, in the 1925 Act, both men and women could have been imprisoned if found engaging in buggery. The offence at that time carried a penalty of up to five years in jail.
When it came to gross indecency, only men could have been punished by being sent to prison for a maximum of two years.
The law was eventually amended and, in 2000, the penalty for buggery under the Sexual Offences Act was increased to 25 years and that of “serious indecency”, which had replaced “gross indecency”, was increased from two years to five years’ imprisonment.
In the end, both Justice Bereaux and Justice Pemberton found that the penalties under the 1925 Act should be reapplied.
Justice Bereaux found that section 16 was in fact discriminatory against homosexual men and lesbians since they were the only ones not allowed by law to engage in acts of serious indecency. It still remains unlawful.
In his ruling, Justice Bereaux noted that, in the 1925 Act, both men and women could have been imprisoned if found engaging in buggery. The offence at that time carried a penalty of up to five years in jail.
When it came to gross indecency, only men could have been punished by being sent to prison for a maximum of two years.
The law was eventually amended and, in 2000, the penalty for buggery under the Sexual Offences Act was increased to 25 years and that of “serious indecency”, which had replaced “gross indecency”, was increased from two years to five years’ imprisonment.
Justice Bereaux and Justice Pemberton later found that the penalties under the 1925 Act should be reapplied.
Bereaux found that section 16 was in fact discriminatory against homosexual men and lesbians since they were the only ones not allowed by law to engage in acts of serious indecency. It still remains unlawful.
It is not up to the court, though, to strike out laws, but instead Parliament by way of legislation, stated the judge.
“It is an emotive issue which engages vibrant discussion in the court of public opinion. Judges cannot change the law. We give effect to Parliament’s intention. In my judgment, the clear intention here is for the existing law to continue to prevail,” said the judge.
He noted that when it came to buggery, the law was clear in that it was not targeting any particular group but instead, the act itself.
“The mischief that the legislation was directed at was the act of buggery, no doubt founded in the religious doctrine that anal sex even within marriage is unnatural and sinful.
“Homosexual men were not the target. Also of note is that the section did not distinguish between public and private acts. A married heterosexual couple, if caught, was subject to a charge of buggery even when performed in the privacy of their home,” the judge noted. (CMC)
