Dominican human rights group welcomes High Court ruling declaring buggery laws unconstitutional

ROSEAU, Dominica, CMC – The founder and coordinator of Minority Rights Dominica (MiRiDom), Daryl Phillip, today welcomed the High Court ruling that two sections of the Sexual Offenses Act (SOA) contravene the Dominica Constitution.

Section 14 is a sweeping law criminalizing gross indecency which is defined as any act (other than penile-vaginal sex) by anyone “involving the use of the genital organs, breast or anus to arouse or gratifying sexual desire”. The maximum penalty is 12 years in prison, if the act is committed with a person aged 16 or older.

Section 16 of the act criminalizes buggery, which the act defines as anal sex between two men or between a man and a woman. The maximum penalty is 10 years imprisonment plus the possibility of forced psychiatric confinement.

Phillip, speaking at a news conference following a ruling by High Court judge, Justice Kimberly Cenac-Phulgence, raised the question as to who would be held responsible for committing a crime under the Sexual Offences Act, if the matter involved two consenting adults.

“This is just the beginning of a war,” he told reporters, adding that persons were being “bullied at schools, being called names on the streets…before they even have a first sexual encounter”.

“Some people don't know what it is but they are being treated differently and so it is a culture that has been bred within us,” Phillip said.

'We don't expect everything to change overnight, but with this ruling no longer can somebody turn and say 'it is against the law so I have a right to tell it to you, or I have a right to call you names because it is against the law'.”

“This just removes the fuel so that people won't have a justification and now it will force people to think of their actions towards others,” Phillip told reporters, adding “whether we like it or not, homosexuality or same sex attraction exists and there is nothing we can do about it”.

MiRiDom had been campaigning for an end to the sections within the Sexual Offences Act, noting that “Dominica's 1978 Constitution guarantees the rights to privacy, protection from discrimination, liberty, security of the person, freedom from inhuman or degrading punishment, freedom of expression, and freedom of assembly and association”.

When the matter was first brought before the courts in 2022, MiRiDom said sections 14 and 16 violated “these rights in numerous ways”.

The lawsuit was brought by an un-named “gay individual” identified only as “BG” against the Attorney General, the Bishop of Roseau, The Methodist Church and the Anglican Church. The Dominica Association of Evangelical Churches was listed as an interested party.

None of the respondents has issued any statement following the High Court ruling.

The judge said it is important to state at the outset that the case is not about whether the actions, choices, lifestyle or otherwise of the claimant are right or otherwise, but it is solely to determine whether certain rights guaranteed to every Dominican citizen by the Constitution have been infringed upon by sections 14 and 16 of the SOA.

In her 40-page ruling, Justice Cenac-Phulgence agreed that the two sections contravened Sections 1 and 10 of the Dominica Constitution and persons' rights to liberty as enshrined in the Constitution.

She said that in light of the persuasive authorities placed before the Court, “I accept that the right to protection for privacy of the home encompasses private and family life and the personal sphere, which includes one's sexual identity orientation as well as intimate activity with a partner of a person's choice.”

She continued, “Therefore, sections 14 and 16 of the SOA contravene the Constitution in so far as they intrude on the private home life of an individual by proscribing the choice of consenting adults as to whom to engage in intimate sexual activity with and are therefore void.”

The judge said that having found that the sections contravened the Dominica Constitution, “the next question to be considered is whether the impugned provisions are reasonably justifiable in a democratic society”.

She said that the Constitution provides that the state may legitimately limit the enjoyment of the rights to ensure that the enjoyment of these rights by any person does not impair the enjoyment of rights and freedoms of others or in the public interest.

She said that the defendants conceded that sections 14 and 16 breach the claimants right to liberty, freedom of expression and privacy and home life and that the impugned provisions “cannot be said to be reasonably justifiable in a democratic society as they do not pursue any legitimate objectives'.

In her ruling, the judge said there would be no award of costs.

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