A SASOD First-Look at the CARICOM Model Legislation on Sexual Offences
The CARICOM Model Legislation on Sexual Offences was drafted between 1989 and 1991 as part of a series of Model Legislation on issues affecting women and adopted in 1991 by the CARICOM Ministers responsible for the Integration of Women in Development. According to the Explanatory Memorandum, it was agreed that the general approach to the legislation would be gender neutral. However, in many instances, this intended gender-neutral approach did not manifest itself in the drafting of the legislation.
First and foremost, clause 3 limits the definition of rape to male-to-female rape and does not include the rape of a man, which can be both anal and ‘vaginal’ in the case of a male-to-female transsexual with an artificial vagina (R v. Mathews (John) (1997) unreported, CC). The definition of rape must be widened to include male rape to break down the social stigma attached to the sexual molestation and victimization of young boys and men, which impedes male victims of rape from reporting this criminal offence.
Also in clause 3, the definition of rape expressly excludes marital rape, which has been established by English case law (R v. R (1991) 1 AC 599, HL), that is, given that “in today’s society, marriage is a partnership of equals” (per Lord Keith), a man can rape his wife. Given the public health dimension to rape compounded by the HIV/AIDS epidemic, the definition of rape must include marital rape to protect wives who may have reason to believe that their husbands may have become infected with HIV and therefore wish to protect themselves from infection by abstaining from sexual intercourse. Clause 4(4), which only allows for the offence of unlawful sexual intercourse of a husband committed against his wife in cases of a legal intervention or agreement, is unacceptable, for the same reasons.
Under clause 7, the definition of incest is limited to sexual intercourse between brother and sister and does not include sexual connection (which is wider in meaning than sexual intercourse) between brother and brother and sister and sister.
According to clauses 8 to 10, the age of consent appears to be 14 years. It is recommended that the age of consent be 18 years to protect all children from sexual exploitation by adults and confirm to international standards for child rights and protection (Article 1, Convention on the Rights of the Child). Also, there should be a three-year differential, which does not attract criminal sanction, between children (under 18 years) and consenting adults so that under-age sexual activity is not criminalized.
Under clause 15(2), the offence of “gross indecency” infringes the right to equality and is discriminatory against same-sex consenting adults on the basis of sex, which has been defined by the Human Rights Committee (HRC) to include sexual orientation in Toonan v. Australia (Communication No. 488/1991). Further, public health considerations require that such offences be repealed; otherwise risk, behaviour is driven underground. In Toonan, the HRC found that the right to privacy was breached by laws that criminalize private homosexual acts between consenting adults, noting that:
“…the criminalization of homosexual practices cannot be considered a reasonable means or proportionate measure to achieve the aim of preventing the spread of HIV/AIDS…by driving underground many of the people at risk of infection…[it] would appear to run counter to the implementation of effective education programmes in respect of HIV/AIDS prevention.”
Clause 15(3) also infringes the basic human right to privacy under Article 17 of International Covenant on Civil and Political Rights by criminalizing private sexual activity where more than two consenting adults take part or are present. Again, public health policy requires that such acts do not attract criminal sanction; otherwise, risk behaviour is driven underground.
In defining “gross indecency,” clause 15(4) refers to acts other than sexual intercourse “(whether natural or unnatural).” Such language is highly inappropriate in legislative drafting since the nature of any form of sexual activity is a subjective question of one’s own private morality.
Clause 16 crafts a separate and specific offence of “indecency between woman and girl,” which would not be necessary if the model legislation had really taken a gender-neutral approach, drafted on the basis of basic principles and international standards of human rights on equality and non-discrimination on the grounds of sex, which includes sexual orientation. In effect, therefore, persons who are heterosexual, bisexual and homosexual are all protected from discrimination by international human rights.
In clause 17, the right to privacy is not respected for consenting opposite-sex adults who choose to engage in anal sex by criminalizing opposite-sex “sodomy.” This is also discriminatory against heterosexual persons on the grounds of sexual orientation.
To sum up, the Model Legislation suffers from the deficiency of not incorporating a gender-neutral approach to sexual offences. In addition, many progressive legal developments related to sexual offences, from which the Model Legislation was not able to benefit since its adoption, have occurred in 1991 and thereafter. It is recommended that the Model Legislation be updated with the latest legal developments related to sexual offences and revised in tandem with basic principles and international standards of human rights.
Joel Simpson, LLB.
Society Against Sexual Orientation Discrimination (SASOD)