The Inter-American Commission on Human Rights (IACHR) says it welcomes the decision of the Supreme Court of Belize “that declared unconstitutional the criminalisation of consensual sexual relations between adults of the same sex.”
“With this historic decision, Belize becomes the second country in the English-speaking Caribbean to repeal laws that criminalise consensual sex between adults of the same sex that originate in the region’s colonial past,” a release issued on Monday stated.
A recent report on violence against members of the LGBTI community in the Americas has, however, noted a gradual worsening of legislative conditions for them in T&T and the Commonwealth Caribbean.
The English version of a report on “Violence against Lesbian, Gay, Bisexual, Trans and Intersex Persons in the Americas” released last week was researched by the IACHR and initially published in Spanish last November.
The report notes that T&T “maintains legislation criminalising adult same-sex intimacy” and that “the issue of discrimination based on sexual orientation remains a matter of concern.”
The Equal Opportunity Commission (EOC) has proposed an amendment to the Equal Opportunity Act to include coverage of “sexual orientation” as the basis for action in the event of discrimination in the provision of education, employment, accommodation and goods and services.
In a press release on the matter, the EOC said it was nevertheless “very encouraged to note that the Honourable Prime Minister promised to revisit any laws that undermine the constitutional right of equality of treatment.”
Executive director of the Coalition Advocating for Inclusion of Sexual Orientation (CAISO), Colin Robinson, told T&T Guardian: “The report helps expose the Caribbean myth that our sodomy laws are colonial.”
He, however, added it did not take note of a provision of the Children Act of 2012 “which last year began criminalising uncoerced sexual touching between young people” and carries a penalty of life imprisonment.
Robinson also lamented the fact that the law subjects parents to jail terms and fines for not reporting “their children’s same-sex sexual exploration to the police.”
Highlighted in the IACHR report is an incident in 2007 involving several men who sought male sexual partners on the Internet but fell prey to kidnap, torture and rape. They were then threatened with blackmail if they reported the crimes.
There is also reference to a December 2014 report in which six “trans women sex workers” from Guyana and T&T were subjected to “inhumane and degrading treatment, including physical and verbal abuse related to their gender identity and gender expression” by the police in Suriname following a “passport check.”
It is noted that during work on the Universal Periodic Review (UPR) for T&T in 2011, it had been suggested by country representatives that “effecting change (in) personal attitudes and community values (is) no easy task.” The UPR is a United Nations mechanism for monitoring human rights conditions in its member states.
The report notes that over the years, penalties for same-sex legal violations have actually increased with longer prison sentences for buggery and introduction of the crime of “serious indecency” carrying a sentence of five years; up from the two-year penalty for what was, prior to 1986, known as “gross indecency” in the law.
After 1986 it was replaced by the crime of serious indecency defined as an act other than sexual intercourse by a person involving the use of the genital organs to arouse or gratify sexual desire” and the punishment for “serious indecency for consenting adults increased to five years.”
There is also concern that the defence of “provocation” is increasingly being employed in homicide cases throughout the Commonwealth Caribbean.
These include instances in which defendants have either claimed that a female partner had been involved in a sexual relationship with another woman or instances in which a defendant has claimed that he was the subject of a “homosexual advance.”
T&T is also cited in references to the “same-sex sexual advance defence” which is used either as “a partial defence resulting in a conviction for a lesser offence, for example, reducing a crime from murder to manslaughter, or as a full defence leading to acquittal, for example, cases in which homicide was deemed ‘justified’.”
A 2013 study of such cases conducted by UK academic Dr Se-shauna Wheatle, which is cited in the IACHR report, calls for the “abolition of the defence of justifiable homicide and for reform of the defence of provocation to exclude the availability of the defence of provocation where the homicide occurred in response to a non-violent sexual advance.”
The study recommends “the inclusion of sexual orientation as a prohibited ground of discrimination in judicial codes and in guidelines for judicial conduct, given that such codes derive from a judicial responsibility to observe standards of equality and fairness.”
“The key pattern we have observed in the law, of which the Children Act is emblematic, is legislators’ consistent withholding of social protection provided to heterosexuals from homosexuals,” Robinson said.
He said there was “a misguided rationale that the colonial criminalisation provisions create a barrier to doing so, while they do nothing to remove the original provisions, which the constitutional savings clauses prevents the victims of these laws from using their very constitutional rights to challenge.”