Barbados High Court Strikes Down Law Penalizing Same-Sex Intimacy
Ruling makes island nation the third Eastern Caribbean country to decriminalize consensual same-sex relations this year.
In a historic decision on Monday, the Barbados High Court issued an oral ruling decriminalizing consensual same-sex relations.
The high court struck down a law dating back to the time of British colonial on the island, under which “buggery” would be punished with up to life imprisonment, and “serious indecency” with up to 10 years in prison. A written judgment from the court will be handed down at a later date, reports BBC News.
While the written opinion has not been released yet, Barbados Attorney General Dale Marshall said in a press release that High Court Justice Michelle Weekes had concluded that two sections of the 1992 Sexual Offenses Act — which had incorporated the colonial-era prohibitions on consensual same-sex relations — were unconstitutional.
“In short, [the ruling means] we can no longer prosecute persons under these two sections,” Marshall said, adding that charges for offenses related to consensual same-sex relations could no longer be maintained.
The ruling makes Barbados the third Eastern Caribbean nation this year to strike down anti-sodomy laws and decriminalize same-sex relations, following Antigua and Barbuda in July and Saint Kitts and Nevis in August. In other parts of the Caribbean, Belize’s Supreme Court struck down anti-sodomy laws as unconstitutional in 2016, and Trinidad and Tobago followed suit in 2018.
While laws criminalizing same-sex intimacy in the Caribbean region have been rarely or inconsistently enforced, they are often broad in scope, vaguely worded — thus allowing overzealous authorities to interpret the laws’ provisions in a way that matches their own biases — and can be used to persecute LGBTQ people or to threaten to close down LGBTQ events or gatherings.
According to a report by Human Rights Watch, due to Victorian-era laws that left their imprint on the island’s legal system, the English-speaking Caribbean is an outlier when it comes to keeping anti-sodomy laws still on the books, compared to other nations in the Caribbean and Latin America, which have embraced more progressive stances by decriminalizing same-sex behavior.
Specifically, in the Eastern Caribbean, family and church are considered the cornerstones of social life, thereby fostering an atmosphere in which LGBTQ-identifying people are likely to fear harassment, familial rejection, stigmatization, and even suffer domestic violence if they come out in those spaces. Because social networks are tight and information travels fast on the island of 287,000 people, LGBTQ people who are “out” also have reason to fear external violence from people with anti-gay animus.
In its report, Human Rights Watch recounted a story about Jason, a gay man who is closeted in Barbados. Jason, who was the victim of a sexual assault six years ago, was not believed when he reported the crime to police — believing the assault was the result of consensual relations, rather than an attack by a stranger — and law enforcement wanted to drop the case. He still doesn’t know whatever became of the investigation.
While Jason is a gay man, his family, despite knowing his sexual orientation, were thrilled when he married a woman. After he divorced, his family became more concerned with the stigma that could befall the family, but still allowed him to come out, and — unlike other families of their privileged social class — did not send him abroad or cut off ties.
One of Jason’s friends, who has been convicted under the “buggery” and “serious indecency” laws, didn’t pursue one job because it involved taking a lie detector test asking if they had ever “broken the law.”
“A lot of Barbadians say, at least we’re not in Jamaica where [LGBT people] get beaten and killed,” Jason told Human Rights Watch. And that’s true, we let them live. But not as themselves.”
Even with the high court’s decision in Barbados, six Caribbean nations still have anti-sodomy laws or laws criminalizing same-sex relations on the books: Dominica, Grenada, Guyana, Jamaica, Saint Lucia, and Saint Vincent and the Grenadines. And at least 60 other nations elsewhere in the world have similar laws in place.
The regional advocacy group Eastern Caribbean Alliance for Diversity and Equality (ECADE), which has been pushing for the repeal of anti-sodomy laws in Barbados and other nations for years, celebrated the high court’s ruling on Twitter, saying it “consolidates the rights of all Barbadians to privacy and freedom of expression, and impacts LGBTQ+ people across the eastern Caribbean.”
The challenge to the law was initially filed by two LGBTQ advocates in Barbados, in partnership with local organizations, including ECADE.
One of those advocates, Rene Holder-McLean Ramirez, called the ruling “a huge win for the community and Barbados.”
UNAIDS, the global organization fighting to reduce the spread of HIV, hailed the decision as one that would improve public health by encouraging more people to get tested for the virus and take precautions to avoid spreading the virus to others. Under laws that criminalize sodomy, more people are likely to remain silent and refuse to get tested or seek treatment for fear of being “outed,” arrested, and ultimately prosecuted by local authorities.
“This historic decision is a significant step towards protecting the human rights and dignity of LGBT people in Barbados,” Luisa Cabal, UNAIDS’ Regional Director for Latin America and the Caribbean, said in a statement. “It will also strengthen the country’s HIV response by helping to reduce stigma and discrimination faced by LGBT people and increasing the uptake of HIV testing, treatment and prevention services.”
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