Ban Buggery Law

The government of Dominica is facing a lawsuit which, if successful, will revolutionise the way the lesbian, gay, bi-sexual and transgender (LGBT) community here is treated by the state.

A Dominican gay man will, in a matter of weeks, file a landmark case challenging the country's laws that criminalise "buggery" and "gross indecency".

The man, whose name is being withheld for his protection, contends that sections 14 and 16 of the Sexual Offences Act violate multiple fundamental rights of all Dominicans, particularly those of LGBT people.

The Canadian HIV/AIDS Legal Network, an international human rights organisation which is supporting the case, also claims that such violations also undermine an effective response to HIV among men who have sex with men.

"These laws drive men who have sex with men underground. Men do not want to go to their doctors and say they are gay. Even putting condoms in prison would be breaking the law," Maurice Tomlinson, senior policy analyst at the HIV Legal Network, told The Sun in a telephone interview on Friday.

"While there are other sections of the law that might be problematic, these are the most egregious. Men who have sex with men have the highest HIV prevalence rate in Dominica. Men who have sex with men, to hide the fact they are gay, are also having sex with women and they don't use condoms because they don't want the wife to ask why, so it's a public health crisis."

It was in March last year that Human Rights Watch, one of the most influential human rights organisations with close links to the United Nations, called on prime minister Roosevelt Skerrit to end "all remaining British colonial laws that criminalise consensual sexual activity among people of the same sex".

In a report entitled, "I Have to Leave to Be Me - Discriminatory Laws against LGBT People in the Eastern Caribbean", the New York based human rights advocacy group quoted a 20-year-old Dominican gay man as expressing fear for his life and regretting that he was unable to introduce his partner to his family.

The Sun has also been reporting on the plight on LGBT people here, many of whom have been victims of violence because of their sexuality.

In a May 2015 article, The Sun quoted a 31-year-old gay man as expressing concern about his safety following attacks on some members of the community. "There have been a few acts (of violence) on LGBT members, they were just attacked because they looked at somebody funny, or give a funny stare, they've been pelted with stone, or chased. There are certain places that I would not walk in town. I just don't feel safe walking in town," he said then.

The man filing the lawsuit also complains that beyond the risk of criminal sanction, he has experienced homophobic hostility, discrimination, harassment, threats on multiple occasions, and physical and sexual assaults.

"In cases of physical violence, too often Dominican police fail to adequately assist and protect, at times ignoring or failing to effectively investigate attacks against LGBT people. For example, the claimant was savagely attacked in his home, yet the police refused to investigate, despite repeated requests by the claimant, and allowed his attacker to remain free. These experiences are not unique to the claimant but have been faced by many other LGBT people in Dominica," HIV/AIDS Legal Network says.

Tomlinson says they are confident of victory based on the results of similar cases in the United States, Belize, Trinidad and Tobago, India and Botswana, and the recent decision by the Caribbean Court of Justice (CCJ) to strike down a Victorian-era law banning cross-dressing in public "for an improper purpose".

"The CCJ has made some very strong statement about LGBT rights. The CCJ has also been very strident in putting the constitutional rights of private citizens at the forefront of their works. And there is no way, based on the slew of cases that have been won recently that any government can say these laws do not violate basic human rights," he said.

Section 14 of the Sexual Offences Act criminalises "gross indecency", including any sexual activity between same-sex partners, with a maximum penalty of twelve years in prison, while section 16 criminalises anal sex with a maximum penalty of ten years' imprisonment and the possibility of forced psychiatric confinement. These prohibitions were first enacted in 1873, and both were amended in 2016 to make the penalties harsher.

The evangelical churches have vociferously opposed scrapping of the anti-homosexual laws, and are emboldened by assurances by prime minister Roosevelt Skerrit that "he will never, ever, under his watch" legitimise buggery here.

Tomlinson concludes that government has refused to scrap these laws "to appease the religious people" and anticipates that "the fundamentalists will whip up the anti-gay rhetoric" in response to the imminent lawsuit.

However, in reference to a call in 2013 by Catholic Bishop Gabriel Malzaire to end anti-homosexual laws here, Tomlinson told The Sun: "The religious opposition will really have to wrestle with the fact that the leader of the most prominent church in the island does not support these laws.Whatever the rightwing extremists want to say they do not speak for all Christians."