The Criminalisation of Consensual Same-Sex Sexual Relations Across the Commonwealth – Developments and Opportunities
Total Page：16
File Type：pdf, Size：1020Kb
THE CRIMINALISATION OF CONSENSUAL SAME-SEX SEXUAL RELATIONS ACROSS THE COMMONWEALTH – DEVELOPMENTS AND OPPORTUNITIES The Human Dignity Trust, County House, 14 Hatton Garden, London, EC1N 8AT, United Kingdom Telephone: +44 (0) 207 419 3770 Fax: +44 (0) 207 419 2475 www.humandignitytrust.org The Human Dignity Trust (HDT) assists local groups and individuals around the world to challenge the legality of laws criminalising private consensual activity between same-sex adults through strategic test case litigation. The principal objective of HDT is to ensure that national laws which criminalise homosexuality are brought into conformity with binding international human rights law and constitutional law norms. It is supported in this endeavour by distinguished jurists and members of the international legal profession including barristers, former Attorneys-General and retired senior judges from across the globe as well as a legal panel of international law firms. The Commonwealth Lawyers Association is a pan-Commonwealth organisation which seeks to uphold the rule of law in the Commonwealth by encouraging exchange of ideas between legal professionals, academics and students, through projects and by driving improvements in legal education. "The criminalisation of LGBTI people across the Commonwealth is a matter of significant concern to the CLA. It is an abuse of fundamental human rights. The intimate activity of consenting adults in private should not be a matter of concern to Governments. We consider the work of the HDT to be very important in assisting countries to review the rights of their citizens where there are laws that discriminate on the basis of sexual orientation. The research demonstrates that in a number of countries the laws are not enforced, although they remain on the statute books – often with disproportionately high maximum sentences. The fact that the offence remains on the books still stigmatises LGBTI citizens of those countries, so non-enforcement is not a reason to keep the laws. The CLA encourages serious dialogue and leadership on these issues from the Commonwealth and its member countries and offers its assistance to facilitate this. We congratulate the HDT on its tireless efforts in this field and we are proud to be associated with it.” Alexander Ward, President Commonwealth Lawyers Association 2 TABLE OF CONTENTS EXECUTIVE SUMMARY 5 1 INTRODUCTION 7 2 THE GLOBAL EXPERIENCE OF CRIMINALISATION AND DECRIMINALISATION - CHRONOLOGY 9 3 WHY MUST DECRIMINALISATION BE A PRIORITY FOR THE COMMONWEALTH? 14 3.1 The Commonwealth and Beyond: Country Developments 14 3.2 Impact of Criminalisation 16 (a) Impact on individuals 17 (b) Impact on women 25 (c) Impact on youth 26 (d) Impact on health 28 (e) Criminalisation - Economic Development and Poverty Reduction 39 (f) Immigration - Persecution and Asylum Protection 44 4 INTERNATIONAL AND COMPARATIVE LAW AND JURISPRUDENCE - THE ROLE OF THE COURTS 47 4.1 Role of litigation in bringing about decriminalisation 47 4.2 International and regional human rights law 49 5 LEGISLATIVE REFORM 61 6 STATEMENTS IN SUPPORT OF DECRIMINALISATION 65 7 THE COMMONWEALTH: OPPORTUNITIES 78 7.1 The Commonwealth: developments to date 78 7.2 The Commonwealth: region by region 88 8 CONCLUSION 89 3 Annexes Tab Pg Annex A: Country Overviews A 91 Antigua & Barbuda 1 92 Bangladesh 2 95 Barbados 3 99 Belize 4 103 Botswana 5 109 Brunei Darussalam 6 114 Cameroon 7 117 Dominica 8 124 Ghana 9 128 Grenada 10 134 Guyana 11 136 India 12 142 Jamaica 13 153 Kenya 14 160 Kiribati 15 168 Malawi 16 170 Malaysia 17 176 Maldives 18 182 Mauritius 19 186 Namibia 20 189 Nauru 21 192 Nigeria 22 196 Pakistan 23 204 Papua New Guinea 24 209 Samoa 25 212 4 Seychelles 26 215 Sierra Leone 27 218 Singapore 28 222 Solomon Islands 29 227 Sri Lanka 30 230 St Kitts and Nevis 31 234 St Lucia 32 238 Saint Vincent and the Grenadines 33 241 Swaziland 34 244 Tanzania 35 247 Tonga 36 252 Trinidad and Tobago 37 255 Tuvalu 38 261 Uganda 39 263 Zambia 40 276 Annex B: Status of Ratification of Relevant Human Rights Treaties by Criminalising B 281 Commonwealth Countries Annex C: Comparative table of countries which criminalise homosexuality C 287 5 EXECUTIVE SUMMARY 1. In 2013, the Human Dignity Trust prepared a briefing for the Prime Minister on the criminalisation of homosexuality1 across the Commonwealth, in advance of the Commonwealth Heads of Government Meeting (CHOGM 2013) in Sri Lanka. Since the last CHOGM the global situation facing LGBT people has worsened. Two years on, 40 of the 53 Commonwealth member states continue to criminalise consensual same-sex sexual relations between adults. Overall homosexuality is still illegal in 78 jurisdictions worldwide: over half of the globe. 2. The frequency of criminalisation in Commonwealth jurisdictions stems from the historical fact that criminalisation was an export of British colonial rule. Criminalisation is therefore a specific issue for the Commonwealth to consider and take steps to rectify. 3. Criminalisation fosters egregious and systematic human rights violations and directly harms lesbian, gay, bisexual and transgender (LGBT) individuals in numerous ways, regardless of whether these laws are actually enforced. Criminalisation outlaws LGBT people’s very identities and makes LGBT people second class citizens in both the public and private spheres. 4. These laws result in a wide range of tangible harms to LGBT people, including: a. murder, assault, ‘corrective rape’, forced or coerced marriage and suicide; b. prosecution and conviction; c. the constant fear of arrest, prosecution and conviction; d. arbitrary detention, police abuse and harassment, even when charges are not brought or prosecutions are discontinued; e. torture, inhuman and degrading treatment, including being subjected to forced medical procedures; f. police entrapment, surveillance and a culture of legal impunity for violent and/or property crimes and discrimination committed against LGBT people; g. harassment, blackmail and extortion by state and non-state actors; h. discrimination and denial of essential services such as health, education, employment and housing; i. shame, public humiliation and associated harms to their mental health; j. the denial of rights to assembly, association and expression; k. shattered families 1 In this report, use of the term ‘homosexuality’ in the context of criminalisation and decriminalisation refers to laws penalising private same-sex sexual activity between consenting adults. This term is adopted for convenience only and recognises the fact that the laws are directed at, and impact disproportionately upon, people of minority sexual orientation and gender identity including lesbian, gay, bisexual and trans people. It also includes men who have sex with men (MSM) and women who have sex with women, which describe, respectively, men who have sexual encounters with other men but may not necessarily self-identify as gay or bisexual men, and women who have sexual encounters with other women but may not necessarily self-identify as lesbian or bisexual. 6 l. being forced to leave their homes m. treatment of LGBT people as ‘unapprehended felons’ reinforcing the misapprehensions and prejudices of the media and general public; 5. Criminalisation has extremely adverse effects on public health, particularly through exacerbating HIV/AIDS epidemics. 6. Criminalisation and the associated discrimination against LGBT people hinders countries’ economic development and creates a less competitive environment for multi-national businesses. 7. Criminalisation harms children and adolescents who are or who are perceived to be LGBT, in particular through increasing their risks of being bullied, excluded from school or committing suicide. 8. Non-heterosexual women are just as affected by criminalisation as non- heterosexual men regardless of the specific wording of criminalising laws as they lead to the persecution and stigmatisation of the entire LGBT community. 9. Non-criminalising countries are not immune to the effects of criminalisation. Well- founded fears of persecution on the grounds of sexual orientation or gender identity give rise to greater numbers of LGBT people claiming the right to seek asylum thus effecting migration into non-criminalising countries. 10. Laws criminalising homosexuality violate fundamental human rights enshrined in international law and most national constitutions including: a. equal protection before the law b. non-discrimination c. privacy d. freedom from torture and inhuman and degrading treatment e. dignity f. health g. freedom of expression, assembly and association h. freedom from arbitrary detention 11. Religious and cultural considerations do not trump these fundamental and inalienable human rights, which are possessed by every individual universally purely by virtue of their humanity. Homosexuality is not a uniquely Western experience nor is decriminalisation the aim of a modern neo-colonialist agenda, as is often claimed by opponents of decriminalisation. LGBT people live in all societies across the globe. 12. The judicial system has played an important role in ending serious and systemic human rights violations in many jurisdictions, and will likely continue to form part of the on-going solution to ending criminalisation. 13. Political leadership and legislative reform have proved crucial in bringing about recent change in a number of countries. Reforming anti-discrimination laws is also a promising avenue for reducing social stigma and improving the quality of life