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On April 12, the High Court delivered judgment in the case of Jason Jones v the Attorney General of T&T.
Jones, an openly gay man and citizen of T&T residing in the United Kingdom, brought proceedings seeking to have sections 13 and 16 of the Sexual Offences Act (the Act) declared unconstitutional to the extent that they criminalise consensual sexual relations between persons of the same sex.
He also claimed these laws infringed his right to respect for his private and family life among other fundamental human rights.
Section 13 of the Act criminalises buggery for which a person is liable on conviction to imprisonment for 25 years. Buggery is defined as “sexual intercourse per anum” (anal sex) between two males or between a man and a woman.
Section 16 of the Act criminalises serious indecency or any act, other than sexual intercourse, by a person involving use of the genitals for the purpose of arousal or sexual gratification. Persons of the same sex could be imprisoned for up to five years on conviction under the section. However consenting adults of the opposite sex and children are exempted from such acts conducted in private.
The issues for the court’s determination were:
(i) Whether sections 13 and 16 of the Act are ‘saved’ law under the Constitution;
(ii) If not saved, whether they violate the claimant’s fundamental rights and are reasonably justifiable in a society that has proper respect for the rights of the individual.
The savings clause
The savings clause in section 6 of the Constitution protects laws which were in existence before the Constitution, and only marginally changed since, from being struck down for breach of fundamental rights.
The court found that the buggery law was not simply re-introduced but was repealed and replaced by sections 13 and 16 of the Sexual Offences Act 1986.
Parliament considered the provisions afresh and the penalty for buggery was substantially increased from 5 to 25 years among other changes. On that basis it was held that sections 13 and 16 of the Act are not saved and are open to challenge.
Not reasonably justifiable
The court found that the sections violated the claimant’s fundamental rights, especially his right to respect for his family and private life, and were not shown to be reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual.
It noted there seems to be no other purpose for maintaining an unenforced law on the statutes other than as a statement by the State against homosexuality.
Its findings were noted as not a denial of the religious or moral beliefs of anyone but about the recognition of the inalienable rights of all citizens who are protected and entitled to be protected under the Constitution.
The court stated further there was absolutely no reason why non-consensual anal intercourse cannot be caught under the existing broad definition of rape.
It was therefore declared that sections 13 and 16 of the Act are unconstitutional and of no effect to the extent that they criminalise any acts of consensual sexual conduct between adults.
Submissions are to be made by the parties on whether the sections should be struck down in their entirety or not. The ruling is to be appealed.
Co-ordinator: Roshan Ramcharitar. This column is not legal advice. If you have a legal problem, you should consult a legal adviser.