Decriminalisation of Consensual Same-sex relationships Between Adults by the Judiciary of Trinidad and Tobago, but Appeal by the Government

(Blogmensgo, gay blog September 30, 2018) In a verdict signed by Judge Devindra Rampersad and effective as of 20 September 2018, the High Court – part of the Supreme Court – of Trinidad and Tobago confirmed the unconstitutionality of Articles 13 (punishment of sodomy) and 16 of the Sexual Crimes Act. Judge Rampersad denied the government a postponement of the validity of his verdict. But instead of simply repealing the two articles of the law, the decision only keeps the amendments to the two articles as small as possible. Even before the ruling was published, the government announced an appeal against it.

Below is a TTT report on this case. Unfortunately, the picture and sound quality is not very good…

Two little things that change everything

Judge Rampersad's judgment only slightly changes the law: adding two words in Article 13 and replacing seven words by only one in Article 16.

Article 13 has so far punished homosexual and heterosexual anal intercourse. In practice, however, this was only used as an excuse to harass gays and punish them with up to 25 years in prison.

Judge Rampersad simply added the term without consent. From now on, only anal intercourse between two men or between a man and a woman without the consent of the partner is punishable.

Article 16 continues to punish cases of serious indecency without sexual penetration with a term of imprisonment of five years. Until now, it did not apply to relationships between “a male and a female person” aged 16 and over.

From now on, Article 16 does not apply to relations between “persons” aged 16 or over, whether homo- or heterosexual, male or female.

Devindra Rampersad justifies the minor amendment rather than the complete repeal of Article 13 by stating that no one has been reported for anal intercourse for a long time.

And with regard to Article 16, Judge Rampersad points out that he was primarily concerned with complete equality: The new wording not only eliminates inequality of treatment with regard to sexual orientation, but also introduces the concept of women's necessary consent, whether with a man or between women.

Background information

• February 21, 2017: Jason Jones, an openly gay activist for LGBT rights from Trinidad but resident in the UK, cites the Attorney General before the High Court to find out whether the state has a constitutional right to criminalize homosexual relations between consenting individuals.
• April 12, 2018: Judge Devindra Rampersad declared Articles 13 and 16 of the Sexual Crimes Act unconstitutional in a first 58-page decision. He recalled that the Constitution applies to all citizens, regardless of their religious beliefs (allusion to homophobia). Immediately thereafter, homophobic violence occurred in Trinidad and Tobago, and Jason Jones received death threats.
• September 20, 2018. Judge Rampersad's new decision confirms his initial judgment in 14 pages and specifies its scope. The two disputed articles are not repealed, but amended at the very least. The Minister of Justice, who wanted to obtain a 45-day stay of execution in order to appeal, had his request refused. Finally, the judge noted that even though the two sections of the law have not been applied for a long time, they continue to pose a potential and clearly homophobic threat to the lives of same-sex couples.

The battle continues

Once the final decision has been announced, Minister of Justice Faris Al-Rawi, on behalf of the Government of Trinidad and Tobago, will appeal to the highest competent court, the Privy Council, based in London.

The Minister of Justice wants this situation to be clarified by appeal, because this issue concerns “about 26 other laws”, although he does not specify this in more detail.

Frank-S / MensGo