State gets deadline for same sex case appeal

The State’s ap­peal over a land­mark judge­ment de­crim­i­nal­is­ing sex­u­al ac­tiv­i­ty be­tween con­sent­ing male adults is set to be heard lat­er this year.

When ap­peal came up for a case man­age­ment hear­ing at the Hall of Jus­tice in Port-of-Spain yes­ter­day, Ap­pel­late Judge Gre­go­ry Smith gave at­tor­neys rep­re­sent­ing the Of­fice of the At­tor­ney Gen­er­al un­til May to file the record of ap­peal for the case.

A date for the hear­ing of the sub­stan­tive ap­peal will be set af­ter the record, which in­cludes High Court Judge Devin­dra Ram­per­sad’s judge­ment in the case as well as the sub­mis­sions that were made be­fore him, is filed.

The State has not sought an ur­gent hear­ing of the case.

In 2017, Trinidad-born Les­bian, Bi-sex­u­al, Gay, Trans­gen­der and In­ter­sex (LGBTI) ac­tivist Ja­son Jones filed the law­suit, in which he chal­lenged the con­sti­tu­tion­al­i­ty of sec­tions 13 and 16 of the Sex­u­al Of­fences Act which crim­i­nalised bug­gery and se­ri­ous in­de­cen­cy even be­tween con­sent­ing adults.

Jones, who is a res­i­dent of the Unit­ed King­dom, claimed that the long-stand­ing leg­is­la­tion con­tra­vened his con­sti­tu­tion­al rights to pri­va­cy and free­dom of thought and ex­pres­sion and was in di­rect con­tra­dic­tion to this coun­try’s in­ter­na­tion­al hu­man rights oblig­a­tions.

In his 58-page judge­ment de­liv­ered on April 12 last year, Ram­per­sad agreed that the leg­is­la­tion con­tra­vened Jones’ rights to pri­va­cy and fam­i­ly life.

Al­though he ac­knowl­edged claims from State at­tor­neys that the leg­is­la­tion has nev­er been en­forced against con­sent­ing adults, Ram­per­sad said that did not mit­i­gate the im­pact on Jones and oth­er ho­mo­sex­u­als, who lived in fear of be­ing brand­ed crim­i­nals based on their ex­pres­sion of love and af­fec­tion. He sug­gest­ed by al­low­ing it to re­main as valid law, Par­lia­ment helped to cul­ti­vate so­ci­ety’s ho­mo­pho­bic views on the is­sue.

Ram­per­sad did not im­me­di­ate­ly strike down the leg­is­la­tion as it would have meant that non-con­sen­su­al anal in­ter­course (anal rape) would be le­gal.

In­stead, in Sep­tem­ber last year, he mod­i­fied the leg­is­la­tion to in­tro­duce an el­e­ment of con­sent.

While the Gov­ern­ment has tak­en a neu­tral stance on the is­sue, At­tor­ney Gen­er­al Faris Al-Rawi has stat­ed that Gov­ern­ment in­tends to ap­peal the judge­ment to the coun­try’s high­est ap­pel­late court, the Privy Coun­cil, to re­ceive a com­pre­hen­sive ju­di­cial de­ter­mi­na­tion on the con­tro­ver­sial is­sue.

Jones was rep­re­sent­ed by Rishi Dass and An­to­nio Em­manuel, while Fyard Ho­sein, SC, is lead­ing the State’s le­gal team.

Reporter: Derek Achong

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