Friday, June 23, 2006

Critique of CARICOM Model Legislation on Sexual Offences

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.

June, 2006

Joel Simpson, LLB.
Society Against Sexual Orientation Discrimination (SASOD)

Monday, June 19, 2006

From the Bermuda Sun
Dear Sir,

It is with great disappointment that we at the Society Against Sexual Orientation Discrimination (SASOD) Guyana learn of the failure of the Bermuda House of Assembly to debate the bill which would outlaw discrimination on the grounds of sexual orientation.

It is important to understand that the right not to be discriminated against on the basis of sexual orientation is a basic human right to which all are entitled equally, whether heterosexual, bisexual or homosexual.

Irrefutably, non-heterosexuals have been stigmatized and discriminated against from time immemorial and therefore stand to benefit most from legal protection. This is lamented by no less a person than Archbishop Desmond Tutu in the foreword to the Amnesty International book, Sex, Love & Homophobia, in the following words: "Yet all over the world, lesbian, gay, bisexual and transgender people are persecuted. We treat them as pariahs and push them outside our communities. We make them doubt that they too are children of God — and this must be nearly the ultimate blasphemy. We blame them for what they are."

Archbishop Tutu has also linked homophobia to apartheid when he said that the persecution of people because of their sexual orientation is every bit as unjust as that crime against humanity, apartheid.

Archbishop Tutu puts it best in these words: "This is a matter of ordinary justice. We struggled against apartheid in South Africa, supported by people the world over, because black people were being blamed and made to suffer for something we can do nothing about — our very skins. It is the same with sexual orientation. It is a given. I could not have fought against the discrimination of apartheid and not also fight against the discrimination which homosexuals endure, even in our churches and faith groups. And I am proud that in South Africa, when we won the chance to build our new constitution, the human rights of all have been explicitly enshrined in our laws. My hope is that one day this will be the case all over the world, and that all will have equal rights."

Human rights protection for lesbian, gay, bisexual and transgender people is often dismissed by the homophobes as a Western concern but the fact is that South Africa was the first country in the world to ban discrimination on the basis of sexual orientation in its post-apartheid constitution. South Africa has certainly learned from its apartheid experience that ignorance, intolerance and hate must be opposed in all its forms. Do we here in Caribbean need such a virulent struggle to teach us a lesson? Or will we simply learn from the past mistakes of others around the world? Further to this being an essential matter of basic human rights, what is even more alarming is that this is also a matter of public health concern and the Minister of Health, Patrice Minors, and other government backbenchers are reported as being against the bill. Dr. Mirta Roses, Director of the Pan American Health Organisation (PAHO) has eloquently reinforced that hatred against homosexuals is not only a threat to human rights but a threat to life itself.

In her words: "... homophobia contributes to the spread of HIV. Fear of being stigmatized often prevents homosexual men from seeking HIV testing, counselling, and treatment, with the result that they are less likely to adopt measures to protect themselves and others from the virus."

According to Sir George Alleyne, U. N. Secretary General's Special Envoy on HIV/AIDS to the Caribbean, homophobia is the major stumbling block to fighting the spread of HIV/AIDS in the region. Dr. Peter Piot, Executive Director of UNAIDS, has also said that homophobia is one of the "best friends of HIV/AIDS" at the fifth Annual General Meeting of the Pan Caribbean Partnership Against HIV/AIDS (PANCAP) held in Port-of-Spain in September of last year.

PAHO asserts that homophobia is of such grave concern in Latin America and the Caribbean that the governments of Brazil, Mexico and Colombia recently launched mass media campaigns against homophobia. In Argentina and Chile, this theme has been featured in poster campaigns and on television where the messages were well received. What is necessary to build a society of justice and tolerance? This bill gives Bermuda a valiant opportunity to put itself on the human-rights map with progressive legislation that guarantees equal rights for all.

We at SASOD stand in solidarity with Mrs Webb and the other supporters for non-discrimination on the grounds of sexual orientation in Bermuda. We call on the government of Bermuda to show sterling and unwiltering leadership and to oppose injustice in all its forms by re-introducing a bill which bans discrimination on the grounds of sexual orientation and to set an example to change the face of homophobia.

Joel Simpson


SASOD - Guyana

Thursday, June 15, 2006

Press Statement on Rule of Law - SASOD joins with CEN

Rule of law Under Threat in Guyana

A BATTLE is being played out between the institution which symbolizes law and order in Guyana, namely the Guyana Police Force (GPF), and criminal forces driving the drug enterprises which the government of the day appears unwilling to confront.

At stake is the most basic principle of Statehood, whether Guyana will continue to subscribe to the rule of law. The rule of law means the same rules govern all people. It is a precondition of a democratic state, and is designed to ensure that each person is protected from abuse of power, and that the presumption of innocence prevents any person being punished for false accusations or mistaken identity.

The continuing failure of the GPF or Joint Services operations either to quell violent crime – particularly in Indo-Guyanese communities - or indict drug traffickers has left the population sceptical, suspicious and scornful of the agencies responsible for law enforcement and the administration of justice.

This unhealthy situation encourages acceptance of cutting corners with respect to law enforcement and leaves people open to considering even more desperate measures. Moreover, the government reinforces such attitudes by ignoring drug criminals while condemning other types.

People currently voicing support for drug operations providing “protection” should thus think long and hard about the logical consequences for them, their families and communities.

Drug operations first and foremost protect their own illegal enterprises, and they will do this regardless of race or any other considerations. Everyone involved in the drug trade is breaking the laws of Guyana. They protect their illegitimate business by resorting to corruption and violence, safe in the knowledge that a blanket of fear prevents their victims from speaking out.

They will choose their targets, based on their own agenda. For all of these reasons, the only long-term guarantee of public safety is a reinvigorated and professional Guyana Police Force.

The following summary is drawn from a U.S. Drug Enforcement Report released in March 2006 and other sources, and reveals the degree to which Guyana has become enmeshed socially, politically and economically in international drug trafficking:

** 20-25 metric tons of cocaine pass through Guyana annually worth USD150M, yet no public cocaine seizure of more than 10 kilos was made in the last year.

** Drug mules (mainly women) are arrested on every North-bound route out of the Cheddi Jagan International Airport.

** U.S. Customs & Immigration have discovered cocaine concealed in every known export from Guyana.

** Drug barons have been granted timber concessions and duty-free privileges allowing them access to remote airstrips.

** Money-laundering legislation was resisted for several years.

** The commercial community is undermined by goods sold at impossibly low prices by drug-owned companies. Banks cannot compete with the informal, low interest loans made available to business persons.

** Guyana-based drug rings have been prosecuted in Barbados, the UK and the U.S.A, but no drug trafficker has been indicted in Guyana.

** A survey reported that 27% (almost 1 in 3) 11-19 year olds in Guyana have seen cocaine. The same survey reported 60% (almost 2 out of 3) children in Region One can identify the drug.

Over the past three months, Guyana has witnessed a growing campaign led by Roger Khan, allegedly a leading drug trafficker who has been indicted by a U.S. Grand Jury, to have the Commissioner of Police (CoP) removed from office. An official demand in recent days from Prime Minister Samuel Hinds that Commissioner of Police Winston Felix immediately respond to the contents of illegal tape-recordings of his private conversations moved the confrontation to a new level.

CoP Felix for his part has denied the voice on the tape to be his and asserted that never in his 36 years as a police officer had he conspired to frame anybody.

In April 2006 the first tape was circulated to all media houses purporting to be a recording of a telephone conversation between CoP Felix and a leading member of the major opposition party, the PNCR. While the tape was illegal and no one has claimed ownership, the voice on the tape is widely believed to be that of CoP Felix.

In late May a second tape surfaced, in which the person alleged to be CoP Felix appears to discuss planting drugs on a person to have her detained when she was leaving the country. If this were true it would have serious consequences for the rule of law in Guyana.

However, the timing of delivery of the tapes suggests that the motivation is not to protect Guyanese people, but to undermine CoP Felix because of the recent actions against drug operations.

To date the government has shown insufficient concern to investigate the source of the tapes and to encourage the person responsible to come forward so that the tapes can be verified, without which they can never be credible evidence.

The GPF inherited by CoP Felix in 2004 was riddled with political interference which respected no boundaries, a state of affairs which no doubt influenced a delay of almost two years in Felix assuming office after his original designation as CoP. The following excerpt from a Stabroek News Editorial (26 Sept. 2004) captures that malaise:

“Imagine a Jeopardy quiz programme, Guyana style: the clue is: this police official doesn’t follow the news; is unfamiliar with the name of an accused murderer, even when he has approved a gun licence for him only the month before; signs an upgraded firearm licence for the man after he has committed murder because he doesn’t know he has committed murder; believes that taxi-drivers should qualify to carry 9mm weapons; doesn’t know which police officers have been assigned to investigate which murder cases; is too busy to question the system of issuing gun licences; did not investigate reports of phone records between the Minister and a man accused of murder because he is uncertain of their legality;… and cannot pay attention to all drive-by killings…As citizens of Guyana followed the extraordinary performance by former COP Floyd McDonald (ag) a single question must have crossed their collective minds: just who is in charge of the police force during his tenure, because it surely wasn’t him…”

CoP Felix came into office determined to rehabilitate the GPF and to eliminate rogue elements, such as the ‘black clothes’ squad elements, and has placed hundreds of officers and ranks on charges before the courts. His assumption of office brought an immediate end to the unrestrained political interference which characterized his predecessor’s reign.

The government media has pursued a campaign to undermine CoP Felix, claimed widespread loss of public confidence, publicized calls for his resignation by the Private Sector Commission, highlighted the exact date of the end of his term in office and even suggested he may go before that date because of accumulated leave.

Roger Khan claimed in a full-page ad on May 12, 2006 that “During the crime spree in 2002, I worked closely with the crime-fighting section of the Guyana Police Force and provided them with assistance and information at my own expense. My participation was instrumental in curbing crime during this period.”

To date the government has shown no interest in investigating these claims. The period Khan refers to was one in which the bodies of many young men, mainly Afro-Guyanese, were found dead.

This taste of ‘phantom’ justice illustrated what is to be expected when the rule of law is set aside for vigilante justice. This approach to crime-fighting eventually forced the resignation of the Minister of Home Affairs. It is logical that were it to be prolonged it could consume the government itself.

Once the elements responsible for criminalising the economy are allowed to assume crime-fighting roles, the rule of law is decisively undermined. Vigilante forces cannot be controlled and in the long-term no one is safe.

All citizens have a right to presumption of innocence and a fair trial. That right obliges (and protects) the rest of the society from reducing themselves to equally inhuman status by resolving crimes outside of a fair trial framework.

1. Government leaders should balance their attention to the CoP with a more vigorous focus on the enormous illegality generated by drug traffickers.

2. Until any allegations are proven, CoP Felix should be allowed to continue his efforts to re-constitute the GPF as a professional institution free from political interference, corruption, and capable of effective crime-fighting.

3. External assistance to revitalize and reinvigorate the GPF is essential and urgently needed to tackle both violent crime and the drug trade.

4. The private sector and the government should develop a joint strategy for a transition from a drug-fuelled to a legal economy.

5. Civil society organisations, having lapsed into an extraordinary silence during this criminalizing of the society, must find its voice and assert its social responsibilities.

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Wednesday, June 14, 2006

Homophobia and Voluntary Blood donation

On the Occassion of World Blood Day, SASOD and GuyBow did a joint letter to the Medical Director, National Blood Transfusion Service, which was copied to
The Minister of Health
The Director of PANCAP
The PAHO Country Rep
The Country Co-ordinator of UNAIDS

The following letter was sent to the press
Dear Editor
On the occasion of World Blood Donor Day, we are
pleased to note that the National Blood Transfusion
Service has asked the media to work with them to
encourage more voluntary donors.
Please permit us to highlight, through the media, a
serious case of stigma and discrimination which the
NBTS indulges in , which perhaps would prevent
voluntary blood donations.
The NBTS it seems, has a public policy of refusing
blood from the following persons.
Men who have sex with men
men who have sex with men and women
Women who have sex with women
amongst others. SASOD recognises that the NBTS is
linking the HIV/AIDS epidemic, to gay and lesbian,
regardless of evidence to the contrary which shows
that women who have sex with men are the most
vulnerable, while women who have sex with women are
least vulnerable to the HIV epidemic.
SASOD hopes that the National Blood Transfusion
Service will correct their perceptions. It is expected
that the Minister of Health who is the custodian of
the National AIDS policy will also ensure that
prejudices are not perpetuated throughout the health
system, regardless of the source of the donor funds.
They have to test all blood for HIV anyways, and it is
now accepted that HIV is spread through any kind of
sexual contact, not only through homosexual contact.
Yours sincerely
SASOD Members

Saturday, June 10, 2006

Report of the 2006 film festival - Week 1

How could I know if my boyfriend is gay? asked one woman after seeing Brokeback Mountain. Brokeback Mountain opened SASOD’s film festival and the audience had different reactions to the film. Some people felt that the story of unfulfilled love resonated with many other couples who could not be together for one reason or another, while others realized the difficulty faced by people who tried to live heterosexual lives while being gay. One woman said she thought the acting was crap.
The documentary of Flowers from the Heartland dealt with same sex marriages. One woman in the audience cried throughout the film, she did not why she did. Other people wondered what the fuss about gay marriage was about, in a society in which less people are marrying.
The comedy Eating Out raised questions about the sexual desires and fulfilling them, posing questions about the nature of fantasies and the exploration of same sex encounters. Can a straight man enjoy a kiss with another man? Is it that easy for a straight man to have a sexual encounter with another man – even with the woman of his desires encouraging him?
Better than Chocolate is a comedy which examined women’s sexuality – lesbianism, relationships with younger men, female masturbation, and the issues around transsexualism. Transsexualism is often confused with homosexuality, and some persons in the audience empathized with the characther when she insisted that “I am not a drag queen’. A woman in the audience was annoyed that the transsexual depicted feminitiy as passive in some instances in when many women would not be.
The film Proteus brought home the history of homophobia and the punishment of those who were accused of sodomy. A sometimes homophobic employees of the café did not realize that the legal penalties for private business could be death and life imprisonment. The South African shorts brought powerful glimpses of lives of gay and lesbian South Africans. The story of Reverend Nkuthola resonated with the audience. She survived excommunication from her church, and then a gang rape in which she was blamed. She became a priest. Her words at the end..”.no prayers can change what God created resonated with the audience, some of whom spontaneously applauded. An expatriate worker was surprised that the film festival was taking place, given the homophobic comments he had witnessed, while other people were very moved by all the films.
The feedback from the first week has been interesting. One reporter expressed disappointment that he could not find any SASOD members who would come out publicly to say that they are not heterosexual, like the subjects in the films.
One man said found the south African shorts thought provoking and felt that the issues should be discussed after the films. Other people said that they would prefer to go home since too much intellectual talk in the night would spoil the night. This man also said he had wondered whether the SASOD film festival would not be a gathering at which people could come to hook up for sex, and thereby reinforce the negativity associated with the ‘gay lifestyle’ , but was relieved to find that it did not appear so.. He agreed that he would be returning for the other films,which will continue Mondays, Wednesdays and Fridays for the rest of June at Sidewalk Café.