Musings: Re-ordering society by treaty

6/7/2009

By Jeff Cumberbatch

WHETHER owed to our Judaeo-Christian background; our colonial status, which engendered a sometime legislative dependency on Britain; the popular will or, maybe, a combination of these, all sexual acts between males are criminalised under our law. Indeed, in 1992, when we enacted a new sexual offences statute, not only did we reiterate this illegality, but we also criminalised, perhaps inadvertently, identical acts between males and females, even if they are married, even if the acts are consensual, and even if they are committed in private. This anomaly remains.

Not that this is a universal position. England, from whom we would have taken our original legislation, has long ago changed its law to decriminalise sexual acts between males, provided the participants are above the age of consent, the act occurs in private and is consensual. And in the State of Texas, the US Supreme Court has struck down a statute which made it a crime for two persons of the same sex to engage in sexual practices common to a homosexual lifestyle, on the twin bases of the entitlement of such persons to respect for their privacy – “…it is a promise of the Constitution that there is a realm of personal liberty which the government may not enter…”; and their right to equal protection under the law – “…moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection clause because legal classifications must not be drawn for the purpose of disadvantaging the group burdened by the law…”

Indeed, several of our regional neighbours, who are similarly situated to us societally, have departed from our current stance. In the case of the Bahamas, by virtue of statute, intimate homosexual acts are only outlawed if one adult male has sexual intercourse with another male who is a minor or has sexual intercourse in a public place with another male whether with or without the consent of that other male. And in the British Overseas Territories, specifically Anguilla, the Cayman Islands, Montserrat, the Turks and Caicos Islands and the British Virgin Islands, the Caribbean Territories (Criminal Law) Order 2000 issued by Her Majesty provides that notwithstanding any statutory or common law provision in Force in the Territory to the contrary, a homosexual act (defined as buggery or gross indecency between two males) in private shall not be an offence “provided that the parties consent thereto and have attained the age of eighteen years”.

Of course, these positions are not binding on Barbados and, as a sovereign jurisdiction, we are free to follow our own democratic sentiments in this regard; free, that is, to the extent that, in the exercise of that sovereignty, we have not bound ourselves by treaty to act in a prescribed manner. In recent times, we have encountered more than a few instances in which the local populist or statutory view clashes with the spirit or letter of our treaty obligations of one kind or another – the death penalty itself, its mandatory nature, the corporal punishment of prisoners, the corporal punishment of children, the provision of imprisonment for certain strikes under the Better Security Act – and unless we are prepared to withdraw from the specific treaty and the community of nations which endorse it, then we may be forced to change our laws in order to conform.

In this regard, Barbados ratified the International Covenant on Civil and Political Rights (ICCPR) on March 23, 1976. This covenant provides, inter alia, for protection from discrimination on a variety of grounds; protection which Barbados, as a state party to the treaty, undertook to respect and to ensure to all individuals within its territories and subject to its jurisdiction. Now one of these grounds is sex, which ordinarily relates to distinction between male and female but, in 1994, the Human Rights Committee, charged with the interpretation of the Covenant, considered that the criminalisation of private sexual activity between consenting same-sex adults violated the anti-discrimination Articles of the Covenant, including that of discrimination on the basis of sex.

In a March 2007 report prepared by Global Rights and the International Human Rights Advocacy Seminar at the University of Virginia School of Law, which only recently became available online (http://www.globalrights.org/site/DocServer/Shadow_Report_Barbados.pdf?docID=9863) and which is provocatively entitled “Violation of the Rights of Lesbian, Gay, Bisexual and Transgender Persons in Barbados”, this country is excoriated for its non-compliance with the Articles of the ICCPR with respect to these individuals. There has not been, to put it mildly, an abundance of public comment on it, but this does not surprise.

The entire document repays reading, but what is intriguing to this writer is its position on same sex marriages and the law in Barbados. Conceding that the right to same-sex marriage is not officially recognised under the ICCPR, it nevertheless refers to the decision in Young v. Australia where the Human Rights Committee held that a failure of the state to grant de facto same-sex couples benefits available to de facto couples of opposite sexes violates Article 26 of the Treaty which guarantees to all persons equality and equal protection of the law without discrimination.

Given that under our Family Law Act, so called “common-law” unions, but only between a man and a woman, are recognised as “unions other than marriage” for certain purposes, the report argues that Barbados thereby provides against equal benefits for unmarried same-sex and heterosexual couples. In other words, we discriminate against same-sex unmarried couples by according different treatment to them from that accorded to heterosexual unmarried couples, based solely on their sex.

This argument appears irrefutable.