The fetish of law

A Dutch law student wrote recently, asking why Caribbean countries don’t remove our sodomy laws if we don’t enforce them. Grenada is the only one I’ve seen use its law (against “unnatural connexion”) in the current century to prosecute people of age consenting to have sex in private. In 2011 T&T’s Geneva UN ambassador responded, during our Human Rights Council periodic review, when other states “raised the issue of the criminalization of same-sex relations in the laws of Trinidad and Tobago. And I should say in that regard, for the purposes of clarity, that while this law exists, and has existed in Trinidad and Tobago for some time, there is no enforcement of it. The Government, the State, does not bring before the courts any person(s) who engage in same-sex activity. It simply does not exist.”

That’s partially true. We routinely use our sodomy laws to prosecute people for anal and oral rape and sex with minors—a practice the DPP must stop. Government told the same Human Rights Council “the definition of rape in the Sexual Offences Act, 1986 was amended by Act 31 of 2000 to reflect a gender neutral position with regard to the complainant and the victim.” Rape carries much harsher penalties, but necessitates proving lack of consent; sodomy convictions require only proof sex happened. So neither victim nor accused gets justice.

The Netherlands is part of the “civil law” tradition, where laws are much more specifically codified, in contrast to our British “common law” heritage (like Canada and the US), where interpretation of laws is iterative and shifts with judges’ decisions that set precedents. One consequence is that the meaning of a law about “carnal knowledge against the order of nature” lies not in the statute itself, but the history of courts’ engagement with it. Of equal consquence is that judiciaries, not just politicians, get to shape social policy through the law; and cases involve intellectual efforts to bend the law to one’s purpose, modern reality, or justice. Instead of Parliament having to update it.

In March at the Caribbean Court of Justice, at the cost of half-a-million dollars—one of those now contentious legal briefs the old AG handed out to filegate lawyer Gerald Ramdeen, along with Seenath Jairam and sometime Government senator Wayne SturgeTrinidad & Tobago set out to defend sections of our immigration law Government itself told the CCJ flatlyand the media years before—it does not enforce. Sections a Ministry of National Security official told a 2012 UN gathering internal review of the legislation had recommended be repealed. Sections 8(1)(e) & (f) define as prohibited immigrants (along with prostitutes, procurers and pimps): homosexuals; persons living on their earnings; persons reasonably suspected as coming to T&T for these or any other immoral purposes; or who are reasonably suspected of attempting to bring into T&T persons for homosexual or other immoral purposes. Section 9(4)(a) allows deportation of anyone (other than a citizen or resident) who “practises, assists in the practice of or shares in the avails of…homosexualism.”

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We aren’t unique here. The US repealed its immigration exclusion of sexual deviants only in 1990. Belize has a similar law, challenged in the same case by Maurice Tomlinson as violating CARICOM guarantees of free movement. Theirs also prohibits children of homosexuals (well, of any prohibited immigrant) from entering.

I petitioned the Court to let regional organization CariFLAGS join the case, since the group brings people into both states on a regular basis for clearly “homosexual purposes.” CariFLAGS submitted an amicus brief, at the Court’s invitation.

I’ve often argued that international activists make too much of a fetish out of Caribbean laws against homosexuality, that there are more important priorities for LGBTI communities here than decriminalisation, that repealing state sodomy laws repeals neither Qur’anic nor Levitical laws and their enduring stigma, and that little would change in LGBTI people’s lives the day after these unenforced laws disappeared. African activists, too, point to places on the continent that LGBTI repression is worse than Uganda or Nigeria, but unlike those two states where recent enactment of draconian laws against homosexuality has drawn global scrutiny, there are none.

But there is something profoundly kilkitay about a legislative system where laws go unproclaimed for years, after Parliament passes them exhausted in the wee hours; yet legislation abolishing preliminary inquiries, including Section 34, is passed and proclaimed with record dispatch, then repealed twice as fast. Where we hold tight to constitutional “savings clauses” that render courts unable to review any law enacted prior to the 1976 document (largely for fear they might find the death penalty unconstitutional); and live with a string of Kafkaesque provisions on our lawbooks about flying kites outside the Queens Park or Arima Savannahs, bathing in the Maraval River, and loitering in any public place and not giving a good account of oneself. The latter is routinely used to sweep Port of Spain and San Fernando streets of young drag queens no one will hire, with no families to go to, harassed daily in their communities. Court officers parade them in dresses for the media; their clothing detailed, their names and residence published. Guyana has a specific law against crossdressing “for an improper purpose” its Chief Justice ruled recently doesn’t apply to headwear or footwear, and excludes expression of LGBTI identity.

Laws do matter. SC Jairam told the Court twice we’re keeping our homosexualism laws for the terrorists.

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