Rape, Gender Neutrality and the Repeal of the Barbados Buggery Laws.

Last Updated on December 27, 2022 7:38 am by Editor

The December 12 oral repeal of buggery and indecency laws by the Barbados High Court is seen as a victory for the local LGBTQ community and that across the Caribbean. 

According to Searchlight, the oral decision that was given on Monday, December 12 will be followed by a full written justification in January 2023.  The Barbados decision follows similar decisions in the courts of Antigua and Barbuda and St Kitts and Nevis earlier this year. 

Attorney General of Barbados, Dale Marshall, has been quick to point out in a section of the local media that the Barbados Government had nothing to do with the decision and that it was a High Court decision.

In effect, the Attorney General was reminding Barbadians of the principle that the legislative arm of government – i.e. Parliament- is independent of the judicial arm which enforces and judicates on cases based on those laws.

However, it is no secret that the PM of the country – Mia Amor Mottley – has openly indicated on more than one occasion, the need for Barbados’ legislation relating to the rights of the LGBTQ or “rainbow community” move in step with the rest of the world.

It is unlikely that the decision will go down well with the Christian community in Barbados. But we wait to see the reaction, if any.

Related Case 

However, a recent case in the Supreme Court of Barbados, Court of Appeal: Magisterial Criminal Appeal No. 7 of 2019, brought into sharp focus several inconsistencies in the legislation on the statute books regarding buggery and rape.

It is the case of COP (Commissioner of Police – the appellant) and Stephen Alleyne (the Respondent).

The COP was appealing against the decision of Mr. Elwood Watts, Magistrate for District B Magistrate’s Court, Oistins who had dismissed the charge of rape of a male complainant against the Mr. Alleyne. The COP was asking the Appeal Court to set a side that decision.

In summary, the Court of Appeal upheld the COP’s submission indicating that “In all the circumstances…the learned magistrate was clearly wrong to dismiss the charge against the respondent without hearing the evidence from the prosecution”. You can read the full case here. 

Analysis

In the course of arriving at this judgment, the Justices of Appeal: The Hon. Rajendra Narine and The Hon. Francis Belle, Justices of Appeal and The Hon. William Chandler, Justice of Appeal (Acting) made important clarifications of the relevant laws which are pertinent to understanding the December 12 High Court decision.

It appears that the learned Magistrate sought to advise the Commissioner of Police that the then defendant – Stephen Alleyne- ought to have been charged with buggery rather than rape.  It is this point of contention that led to the appeal and substantive analysis of the case by the Justices.

Mr. Arthur Holder, who appeared for Mr. Alleyene, had submitted that since the law at section 3(6) of Cap. 154 (sec 3(6)) defined the offence of rape as “the introduction of the penis of a person into the vagina of another”, it followed that the act committed by the defendant could not be rape because it was an act committed between two males.

The Justices pointed out that the wording of the law was gender neutral in that the victim of a rape could be either male or female.  In fact, it had been the submission of Assistant Superintendent of Police Blackman that the interpretation of section 3 (1) of Cap. 154 (sec 3(1)) meant that the perpetrator of a rape could either be male on a male.

Moreover, the Justices noted the submission of Ms. Krystal Delaney, counsel for the appellant, that ‘the introduction of a penis or objects into the anus or vagina of another person or into the mouth of another person would also amount to rape”.

The Justices of Appeal referred to the relevant sections of the law, namely sections 3(1) and (6) of Cap. 154 and section 9 (sec 9) of Cap. 154 which are reproduced below:

Sec 3(1) “(1) Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the intercourse or is reckless as to whether the other person consents to the intercourse is guilty of the offence of rape and is liable on conviction on indictment to imprisonment for life (emphasis added).

(6) For the purposes of this section “rape” includes the introduction, to any extent, in circumstances where the introduction of the penis of a person into the vagina of another would be rape,

(a) of the penis of a person into the anus or mouth of another person; or

(b) an object, not being part of the human body, manipulated by a person into the vagina or anus of another.”

Sec 9 of Cap. 154 provides that:

“Any person who commits buggery is guilty of an offence and is liable on conviction on indictment to imprisonment for life.”

Sec 9 of Cap. 154 is one of the two sections struck down by the High Court. 

Buggery, although not defined in statute law in Barbados, is understood to be anal or oral intercourse between two persons. Anal sex is also known as sodomy whereas oral sex is known as fellatio. However, buggery also includes sex between a human (man or woman) and an animal, often referred to as bestiality.  

Sexual Offenses Against Minors

It is understood that the High Court also struck down clauses relating to indecent acts. Part of that section of the law includes Cap 154 Section 12 which reads as follows.

12.(1) A person who commits an act of serious indecency on or towards another or incites another to commit that act with the person or with another person is guilty of an offence and, if committed on or towards a person 16 years of age or more or if the person incited is of 16 years of age or more, is liable on conviction to imprisonment for a term of 10 years.

(2) A person who commits an act of serious indecency with or towards a child under the age of 16 or incites the child under that age to such an act with him or another, is guilty of an offence and is liable on conviction to imprisonment for a term of 15 years.

We wait with burning interest, to hear the full explanation of the High Court for the overthrow of these two sections of the act.   One also wonders whether this decision by the High Court has anything to do with any current cases of rape before the court. 

The Attorney General of Barbados has expressed his concern about the throw out of section 12.  Given the recent fiasco with the IADB survey in Barbados’ Secondary Schools, all Barbadians should be concerned given that that section relates to sexual offenses against minors.

Article by Dr. Aldon D Tull, retired educator.