René Holder-Mcclean-Ramirez v The Attorney General of Barbados

• Jurisdiction: Barbados
• Judge: Madam Justice Michelle I. L. Weekes
• Judgment Date: 12 December 2023
• Neutral Citation: BB 2023 HC 17
• Docket Number: No. CV 0044 of 2020
• Court: High Court (Barbados)

IN THE MATTER OF THE CONSTITUTION OF BARBADOS,

AND

IN THE MATTER OF AN APPLICATION FOR REDRESS IN ACCORDANCE WITH SECTION 24 OF THE CONSTITUTION BY RENè HOLDER-McCLEANRAMIREZ, RAVEN DAVINA GILL AND EQUALS INC. BEING PERSONS ALLEGING THAT THEIR RIGHTS AS GUARANTEED TO THEM BY SECTIONS 11, 13, 15, 20 AND 23 OF THE CONSTITUTION AND AFFIRMED IN THE PREAMBLE TO THE CONSTITUTION HAVE BEEN, ARE BEING OR ARE LIKELY TO BE CONTRAVENED,

AND

IN THE MATTER OF SECTIONS 9 AND 12 OF THE SEXUAL OFFENCES ACT, CAP. 154, OF THE LAWS OF BARBADOS.

BETWEEN:

René Holder-Mcclean-Ramirez

First Claimant

Raven Davina Gill

Second Claimant

Equals Inc.

Third Claimant

and

The Attorney General Of Barbados

Defendant

Before:

The Honourable Madam Justice Michelle I. L. Weekes, Judge of the High Court.

No. CV 0044 of 2020

IN THE SUPREME COURT OF JUDICATURE

IN THE HIGH COURT

CIVIL DIVISION

Appearances:

Mr. Douglas Mendes S.C. in association with Mr. Westmin James and Mr. Kashka Hemans Attorneys-at-Law for the Claimants.

Mr. Jared K. Richards in association with Ms. Kim Ramsay-Moore and Ms. Rochelle Lashley, Attomeys-at-Law for the Defendant.

INTRODUCTION

1 This is an application for relief under Section 24 of the Constitution of Barbados (the “Constitution”) and under Rule 56of the Supreme Court ( Civil Procedure) Rules, 2008 (the “CPR”). The Claimants allege that sections 9 and 12 of the Sexual Offences Act Cap 154 (the SOA) criminalise certain sexual acts in private between consenting adults, in particular same-sex adults. It is essentially a human rights application.

2 Barbados transitioned to Republican status in November 2021 after the trial in September 2021. This Decision is made under the law at the time of the trial.

THE APPLICATION

3 By Fixed Date Claim Form filed on 15 January 2020, the Claimants sought:

• 1. A Declaration that section 9 of the Sexual Offences Act, CAP 154 (“the Sexual Offences Act”) which provides, “[a]ny person who commits buggery is guilty of an offence and is liable on conviction on indictment to imprisonment for life” contravenes the constitutional rights of the Claimants enshrined in sections 11, 13, 15, 20 and 23 of the Constitution, and affirmed in the Preamble to the Constitution, and is accordingly unconstitutional, null and void and of no effect to the extent that it applies to consensual sexual intercourse between persons of sixteen years of age or more in private.

• 2. A Declaration that section 12 of the Sexual Offences Act which provides

  • (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.

  • (3) An act of “serious indecency” is an act, whether natural or unnatural by a person involving the use of the genital organs for the purpose of arousing or gratifying sexual desire.

  • (4) contravenes the constitutional rights of the Claimants enshrined in sections 11, 13, 15, 20 and 23 of the Constitution, and affirmed in the Preamble to the Constitution, and is accordingly unconstitutional, null and void and of no effect to the extent that sub-section (1) applies to acts of serious indecency committed in private between consenting persons each of whom is sixteen years of age or more.

• 3. A Declaration that the offence of serious indecency under section 12 of the Sexual Offences [Act] is unconstitutional, null and void and of no effect on account of its vagueness and uncertain application.

• 4. An Order that section 9 be read as if the words “except where it occurs in private and between consenting persons each of whom is sixteen years of age or more” were added at the end of that section.

• 5. Such other Declarations and Orders and such directions as this Honourable Court may consider appropriate for the purpose of enforcing or securing the enforcement of the Declarations and Orders.

• 6. Such further or other relief as the Court thinks just.

• 7. Costs.

GROUNDS OF THE APPLICATION

4 The grounds as stated in the application are:

• 1. Sections 9 and 12 of the Sexual Offences Act criminalise certain sexual acts between consenting adults in private.

• 2. In the premises, and in the light of the Preamble to the Constitution, which recognizes inter alia the entitlement of every person in Barbados “to the fundamental rights and freedoms of the individual”, sections 9 and 12 violate:

  • a. The right to life, liberty and security of the person, guaranteed by section 11(a) of the Constitution,

  • b. The right to protection for the privacy of his home and other property, guaranteed by section 11(b) of the Constitution,

  • c. The right to protection of the law, guaranteed by section 11(c) of the Constitution,

  • d. The right to freedom of expression, guaranteed by section 11(d) of the Constitution,

  • e. The right to personal liberty, guaranteed by section 13 of the Constitution,

  • f. The right to not be subjected to inhuman or degrading treatment, guaranteed by section 15 of the Constitution,

  • g. The right to not be hindered in the enjoyment of freedom of expression, guaranteed by section 20 of the Constitution and

  • i. The right not to be discriminated against on the ground of sex, guaranteed under both section 11 and section 23 of the Constitution.

• 3. Further, section 12 of the Sexual Offences Act does not meet the constitutional or common law requirements for legal certainly.

• 4. Sections 9 and 12 are not prohibited from being held constitutional by virtue of section 26 of the Constitution.

ORDERS

5 On 12 December 2022 the Court granted these orders:

My reasons for doing so are set out below.

• 1. A Declaration that section 9 of the Sexual Offences Act, CAP 154 which provides, “Any person who commits buggery is guilty of an offence and is liable on conviction on indictment to imprisonment for life” contravenes the constitutional rights of the Claimants enshrined in sections 11, and 20 of the Constitution, and affirmed in the Preamble to the Constitution, and is accordingly unconstitutional, null and void and of no effect to the extent that it applies to consensual sexual intercourse between persons of sixteen years of age or more in private.

• 2. A Declaration that section 12 of the Sexual Offences Act which provides:

  • (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.

  • (3) An act of “serious indecency” is an act, whether natural or unnatural by a person involving the use of the genital organs for the purpose of arousing or gratifying sexual desire.

  contravenes the constitutional rights of the Claimants enshrined in sections 11 and 20 of the Constitution, and affirmed in the Preamble to the Constitution, and is accordingly unconstitutional, null and void and of no effect to the extent that sub-section (1) applies to acts of serious indecency committed in private between consenting persons each of whom is sixteen years of age or more.

• 3. A Declaration that the offence of serious indecency under section 12 of the Sexual Offences Act is unconstitutional, null and void and of no effect on account of its vagueness and uncertain application.

• 4. The Court declines to make an Order that section 9 be read as if the words “except where it occurs in private and between consenting persons each of whom is sixteen years of age or more” were added at the end of that section.

• 5. Hearing on Costs adjourned until 31st January 2023.

HISTORY OF THE CHALLENGED PROVISIONS

6 The provisions have their genesis in colonial times when English Criminal Law was also the law of Barbados. The history of buggery dates back to medieval times and until Henry VIII's reign fell under the purview of the ecclesiastical courts. Once the Church of England was established, buggery became a criminal offence. Under the Buggery Act 1533 it was punishable by death and except for a short period of repeal remained a capital crime until the enactment of the Offences Against the Person Act 1861. That Act removed the death penalty and imposed a term of ten years to life imprisonment.

7 In 1885 the “Labouchere” Amendment introduced a provision described as “gross indecency” which criminalised all homosexual activity. Section 9 antecedents in England and Wales were repealed by the Sexual Offences Act 1967 on the recommendation of the Department Committee on Homosexual Offences Act and Prostitution (The Wolfenden Report). In Barbados the precursor of Section 9 can be traced back to the Offences Against the Person Act which was amended in 1978 simplifying the penalty and creating the crime of gross indecency in relation to men.

8 The SO A commenced on 13 February 1992 and its Long Title describes it is “An Act to revise and reform the law relating to sexual crimes.” In Mayers v The Queen BB 2009 CA 9, Williams, J.A. remarked about the SOA that it “…revised and reformed the law relating to sexual crime by giving an extended definition to the...