The Parliament of England and Wales has taken a considerable social step through the passing of a piece of legislation that may be described as controversial, given its subject matter. There is a notion apparently held by some that only a certain community of countries, which exist of a certain liberal nature and of a more widely accepting attitude towards various sorts of social change, can allow for a legal marriage between homosexuals. I am sure that most would not quickly consider the UK to be part of such a description. However, we can officially add the United Kingdom to such a community. The passing of the Marriage (Same Sex Couples) Act 2013 may be seen as revolutionary to the general Caribbean Community. That is mainly because of our current state of law, policy and social perception as it relates to homosexual rights and privileges.
As of July 17th 2013, the Act has come into force in the UK. Quoting the opening line of the Long Title (which is a summary of the purpose or the intention and scope of the law) which reads: “An Act to make provision for the marriage of same sex couples in England and Wales….” It would seem that the intention is to accommodate, in some way, the matrimonial union of same sex couples. Reading Section 1(1). of the Act clears up any doubt with a powerful seven (7) word statement;
(1). Marriage of same sex couples is lawful.
There exists in these words, no ambiguity. The law has made a clear statement. So clear that it need not be interpreted, clarified or discussed to gather it’s meaning. Furthermore the very same Section 1 has laid out what seems to be the simplest formula of application and execution of this law. In my opinion, this “simple formula” as I refer to it, is more of a testament that the intention is not to create a “new marriage law” for homosexuals but instead to seamlessly integrate homosexual marriage into the larger definition of “marriage” in the United Kingdom as a whole. I say this because the Act does not provide for separate formal legal requirements for a same sex marriage to be carried out. That is because Section 1(2). of the Act reads;
(2).—The marriage of a same sex couple may only be solemnized in accordance with—
(a)Part 3 of the Marriage Act 1949,
(b)Part 5 of the Marriage Act 1949,
(c)the Marriage (Registrar General’s Licence) Act 1970, or
(d)an Order in Council made under Part 1 or 3 of Schedule 6.
Focusing on (a) and (b) as examples in its referral to the Marriage Act 1949 we would see that Parts 3 and 5 speak to registration and certification of marriages. Of course, by default, these sections previously referred only to heterosexual marriages. Now it is a case where it refers to all marriages legal in the UK, which as of the passing of this new Act, includes homosexual marriage. From a pure, spoken and written English perspective, I believe that by taking such a route of referring to the existing requirements for application which were previously used for a heterosexual marriage, as opposed to laying out separate ones (even though they would be identical), the legislature has almost erased the term “homosexual marriage” from a formalities standpoint. Instead it would seem that “marriage” as a whole in the UK should be taken to mean “involving either heterosexual or homosexual unions”.
FOCUS ON THE CARIBBEAN
As it stands, it is more than safe to say that the wider Commonwealth Caribbean is miles away from such reform. I say this not from a pure religious and social perspective, but from one that is purely legal as well. In the religious sense; the deep rooted Christian beliefs held at large by citizens of our Caribbean states, allow for an easy dismissal of such a thought. The idea of homosexual marriage may be described by its religious opposition as atrocious before both God and man. Socially, it can be said that society as a whole cannot easily transition into acceptance of something that has long been unaccepted and to that which so much stigma is attached. From the legal standpoint, unlike the social and religious, it is easier to rationalize why such marriages are nowhere near possible in the wider region. And that is because of the existence of Anti Buggery legislation. “Buggery” was first made criminal and by extension “punishable by death” in England in the early 16th century. This was with the passing of the Buggery Act 1533. This defined buggery as “as an unnatural sexual act against the will of God and man.” Almost 3 centuries later, the law seemed to become narrower in its scope and description, with the passing of the Offences against the Person Act 1828. This rebirth of Anti Buggery legislation made only “anal penetration” and “bestiality” illegal within its scope. The crime officially became a non-capital offence, meaning it ceased to be punishable by hanging, in the year 1861.
This is officially where the discussion melds into our society. Without going too deeply into Caribbean history, I am going to proceed on the notion that we are all widely aware of our historical background of slavery, revolution and independence. Through those events, we were left with a legal system which practically mirrored that of the United Kingdom. With such exceptions as St. Lucia which has a system which is a mix of French and English. We were then left with existing laws as well as a written Constitution, to guide the development and shaping of our laws moving forward. As part of the package, the Anti Buggery laws were included. The UK however has abolished the general nature of this law and since 1967 has repealed the Anti-Buggery legislation. With that, the controversial essence of the law was removed. The effect is that, there is no criminal attachment to homosexual acts, of a consenting nature, between two (2) adults, performed in private. This brings the allowance of homosexual couples to engage in sexual acts on a square level as that of heterosexuals. I say this because the privacy requirement is perhaps the most important. Since there are laws which exist which prohibits sexual acts in public between heterosexual individuals as well, then it is to be noted that the same general allowances and restrictions seem to exist for both types of acts (heterosexual and homosexual).
The relation between the existing Anti-Buggery laws in the Caribbean states and the potential future marriage rights to homosexuals cannot be more directly connected. We cannot expect to see even a proper discussion on homosexual marriage rights in our region until the discussion on de-criminalizing buggery results in exactly that; a de-criminalization of buggery. Logic would not permit the coming into force of a law allowing a marriage between partners in the same collection of laws which includes one which makes it a criminal act to engage in sexual activity with that partner. That would be a true portrayal of the old saying “putting the cart before the horse.” This is the basis of my declaration that we are still “miles away” from such a change.
To my knowledge, only the Bahamas, from a Caribbean perspective, has removed the criminal nature once attached to sexual activity between parties of the same sex. Worth noting however, is at least one point of difference in the standard applied. This is as it relates to the age of consent. For heterosexuals sixteen (16) years stands at the age where one can give consent to sexual activity. For homosexuals however, it is 18. With the Bahamas exception, one can expect to find in force, anti sodomy or buggery laws in all regional jurisdictions. These give legal force to prohibiting the act, even in a private setting. Some examples are Barbados with Section 9 the Sexual Offences Act 1992 and Section 133(1) of the Criminal Code of St. Lucia 2001. The curious wording of the Jamaica Offences against the Person Act and specifically Article 76 which deals with buggery, shows an almost distinct repulsion towards the act;
76. Whosoever shall be convicted of the abominable crime of buggery, committed either with mankind or with any animal, shall be liable to be imprisoned and kept to hard labour for a term not exceeding ten years.
The laws, although arguably not enforced, are still very much embedded in our criminal and penal provisions. Jamaica’s provision almost seems personal and hides no sign of the prejudice towards the act in the wide eyes of the law.
THE GENERAL ENGLISH LAW EFFECT
Undoubtedly, the English law is of great influence to the Commonwealth Caribbean. Being the source of Common Law, we often find attention being turned to UK cases as well as statutes to assist in interpreting and applying as well as introducing laws in our region. On that same note, we can also similarly expect that if a move is to ever be taken to allow for same sex marriages in the region, then a similar path as that taken by England is likely. Activists for Lesbian, Gay, Bisexual and Transgender (LGBT) rights in the Caribbean are constantly and fiercely campaigning for the de-criminalization to be made effective. If such becomes the case and the aim is to ultimately allow for same sex marriages, if the UK Model is followed, we can expect to see the passing of at least two pieces of legislation before any same sex marriage laws are introduced. These would be the equivalent of the Gender Recognition Act 2004 which allowed for a legal recognition to personal gender changes. It allows a transsexual to gain legal recognition of his or her gender change. This would include a new birth certificate as well as an amendment to public records and the acquisition of rights afforded to that gender. In addition and as a potential alternative, a law equivalent to the Civil Partnership Act 2004 can also be in line to be passed. This Act makes legal allowance to give same sex couples most rights and responsibilities afforded to a legal civil marriage. These would include pension, property rights, tax and so on. I refer to this as a potential alternative (if the process were to ever extend that far) to making same sex marriages legal. It could very well satisfy a balance of desires, by giving same sex couples a legally recognized union and preserving some of the social and especially religious sentiments, by not labeling it a “marriage” so known. By doing so, it can be considered as aiming for some preservation of the sanctity of marriage, if not just on the surface.
THE PRIVY COUNCIL EFFECT
Also on the topic of the effect of English Law, it would be remiss not to raise a discussion on the possible effects of having an England based final appellate court presiding over most of our jurisdictions. The Privy Council’s influence on our law is seen clearly in the ongoing death penalty debate going in the region. Through a series of Privy Council Judgments in the Caribbean, most notably Joseph & Boyce v The Queen (decided in Barbados) as well as Pratt & Morgan v Attorney General of Jamaica, the court has made it all but procedurally impossible to execute someone sentenced to death in the region. These two cases laid out two basic principles which when combined have a comparable effect to the abolition of the punishment, which is the state as it exists in the UK. As of 1973, all of the United Kingdom (with Northern Ireland being the last to take effect) had abolished the death penalty for the offence of murder. Although the penalty continued to exist for other crimes including piracy and treason, by 1998 it was abolished in full. The Pratt & Morgan and Joseph & Boyce cases have these respective effects on carrying out a death sentence;
i. That any death sentence not carried out within five (5) years is cruel and inhumane punishment and that death sentence should be reduced to a life imprisonment sentence.
ii. That someone on death row be given the opportunity to explore all avenues of appeal for pardon or a recommendation of pardon (which in many cases takes more than five years)
The result of this is what some may consider to be a crafty manipulation to achieve an effect similar to that of England. Now I ask you to apply that kind of thinking to this discussion. Not to say that the Privy Council can magically legalize same sex marriage and de-criminalize sodomy and buggery in our region, but we must be mindful of their authority, ability and the endless legal principles which can be used to inject their ideals into our system. Such can occur if a case of this particular nature as this discussion is brought to them for hearing through the appeal process. The Human Rights argument is the strongest, for it is the pillar which is relied upon for all bids relating to the removal of criminal sanctions and the affording of gay and lesbian rights. The Human Rights argument has strength in it that should not be overlooked. The Constitution itself provides for it and constant discussion on a local regional and international level only strengthens it. We must also forget not the influence that the numerous Panels and Human Rights Conventions to which some, if not most territories in the Caribbean are signatory to.
All that can be said with surety is that the fight for Gay, Lesbian and Transgender rights is constantly being fought around us. Those who forward the cause believe it to be essential for society’s development. Those who oppose the cause see the same argument as their basis for not wanting to see the social and religious norms broken down. The law is strange in that sometimes it seems to take the social and religious to heart in its considerations and other times it seems to deem it necessary to progress in spite of the social and religious. It would be interesting to know what most feel about this situation. Consider our region moving in the same direction as the UK. Ask yourself then, is it the right direction? Or is it the wrong direction? And furthermore, which ever answer you come to, consider this; right or wrong….is it the direction worth taking? Your opinion does matter; please feel free to share it.