Thursday, June 28, 2012

Antiguan Bishop not oppose to decriminalisation

Catholic bishop not opposed to decriminalization of buggery

                                          
St. John’s Antigua- The head of the Roman Catholic Church in Antigua & Barbuda has revealed that he is not opposed to the decriminalisation of buggery on the basis that adultery, which had been illegal, is no longer an offense against the state.
“The argument to decriminalise can be justified in the sense that adultery was on the books as a criminal act and it has been decriminalised. It is to the same extent that buggery can be decriminalized,” said Kenneth Richards, the Jamaican-born bishop.
He hastened to add, “but that does not make adultery or buggery right.”
Bishop Richards said in an interview with Observer Media that the decriminalisation would also help reduce discrimination against individuals perceived to be of the homosexual orientation.
He said the bigger issue which needs attention is irresponsible sexual behavior.
“Sometimes we highlight homosexual activity but I think it’s a continuum. It’s all part of the fact there is a lack on understanding of the sacredness of our body and sexual action. Persons who say that they are heterosexual and think it is ok to have as many women or men, that is what is driving the kind of crisis that we are facing,” Richards who took up the job here on January 5, 2012, said.
Observer asked His Lordship whether homosexuals were welcome in his congregation.
“I don’t give people that designation, people are welcome to my church,” he responded.
But the church leader said he would continue to “advocate abstinence, fidelity within marriage and chastity according to your state in life.”
“We need to promote virginity among our children. They must recognise that this free sex, operating on the pleasure principle and allowing lust to drive them is not the truth of their being. They are allowing lust to drive them when they allow themselves to be abused in this way,” he added.
Bishop Richards also said he was opposed to contraception and the distribution of condom in schools.
“The church needs to speak more strongly about this,” he said.
Barbados, Saint Vincent and the Grenadines, Dominica, Grenada, Jamaica, Saint Kitts and Nevis, Saint Lucia, and Trinidad and Tobago also ban the act of buggery.
Despite pressure from international interest groups, governments in the Caribbean have show little interest in repealing their buggery laws.

Source:http://www.antiguaobserver.com/?p=71992

Wednesday, June 27, 2012

The Kingston Archbishop on Tolereance

EDITORIAL - Dufour's humanity

Published: Wednesday | June 27, 2012 2 Comments
Archbishop of Kingston, the Most Rev Charles Dufour, is no raging liberal about to turn the theology of the Roman Catholic Church on its head and embark on a pro-gay campaign.
But his recent statement calling for Jamaicans to be tolerant of homosexuals in their communities underlines not only the archbishop's intrinsic humanity, but sets down a marker for others of influence to follow, and from which they may, and should, advance.
Undoubtedly, the environment has improved in recent years. Yet, Jamaica is not an easy place to be gay, especially a male homosexual.
First, the law against buggery casts the State as voyeur and sexual commissar, impinging on the right of consulting adults - both gay and heterosexual couples - to engage in sexual conduct of their choice in the privacy of their homes.
Further, this intrusive behaviour by the State has helped to reinforce homophobic attitudes and, in some cases, encouraged violence against gays. Except for a few brave souls who have defied these attitudes, archaic laws and anachronistic attitudes have push many gays underground, with well-documented consequences, for health care and spin-off social ills.
It is against this backdrop that Archbishop Dufour's call for a new approach to the engagement of gays is important.
He told this newspaper: "We do not regard homosexuality as natural behaviour, but we say you are to respect the person. Respect, do not kill the person. You must show respect to that person."
There are those who might wish to debate Archbishop Dufour over the physical and socio-psychological basis of homosexuality.
For this newspaper, however, what is the most critical element of the archbishop's statement is his call for respect; it is a declaration that humans are inviolable and, therefore, worthy of esteem and regard for themselves.
Tolerance gives rein to debate
In this regard, the archbishop celebrates the humanity of each individual, lifestyle notwithstanding. It is in a context of respect that tolerance is possible.
Where there is respect and tolerance, genuine debate is possible, and people's right to engage in lifestyles that do not materially affect the rights of others ought not to be short-circuited by illiberal laws.
For others, from beyond our shores, to make these points to us is not, we believe, to infringe upon our sovereignty, as Archbishop of Accra, the Most Rev Charles Palmer-Buckle, seems to believe it is.
What we think is important for Archbishop Palmer-Buckle, the broader Roman Catholic Church and whoever else pursuing a biblical case against homosexuality is to win the theological battle based on the cogency of the argument. Success may wean gays away from their lifestyle.
The maintenance of the buggery law, and the attitudes it encourages, is an Inquisition to punish the unfaithful and non-believers.

Source:http://jamaica-gleaner.com/gleaner/20120627/cleisure/cleisure1.html

Tuesday, June 26, 2012

No Dignity in Death: A No Out Rule

Posted June 26th, 2012

As the United Belize Advocacy Movement moves forward with its work, the question of how justice is serve has infused itself in the debate for the LGBT community and rights enforcement processes.I was accused of outing a dead man." I was told that I have no right!" So is there there a right way to get justice for 27 murders that have happened from 1997 up to June 2012. I had to do some deep reflection and found the following points interesting:

1). The community does not see a rational for ensuring access to Justice is achieved thro ugh public outings. They worry about the poor family feelings and seem extremely sensitive to the emotional needs of the family.
2).Outing maybe acceptable if the person is a barrier to the movement and gay.
3).Outing maybe possible if done quietly in dialogue with the police.
4). We have a long way to go psychologically as strategies are defined to increase our visibility.
5). Our protest will not be protest, but in parties. while inviting a minister of CEO for a drink.
6). Our protest is in witholding ADS from media houses that are homophobic.
7). Our outing is showing our political currency when we united with supporters for our cause.
8). Our outing is done by those who are unabashingly proud and public.
9). Expecting the comfortable and the connected to be helpful is challenged by their need to maintain their status quo of living quietly and invisibly.
10). Our people will continue to die as closet men seek out partners in clandestine ways.

What is surprising is that while many in our community is willing to offer feedback and critism, few is willing to be visible and step up. Whether this is because of shame, confidence infront of the camera or impact on family. This writer cannot tell. What I do know is that self-hate is rampant along with fear. The postter below summarises my feeling and the needs that must be addressed.


It seems we want social change and freedom without the sacrifice. We want the inclusion without putting in the work. We shall see in time if the community steps up to action or become a barrier to its own hopes and dreams.

Tuesday, June 19, 2012

BMDU: Dr. Ivan Garcia and social stigma

June 19th, 2012

It was clear from the meeting held on June 18th, 2012  at the Lion's Den by The Belize Medical and Dental Union that doctors were angry that their colleague was murdered so deliberately. A call was made at the Lion's Den, to raise funds so that his body could be return to Guatemala a go slow would happen; agreement was reached that there would be a Peace Walk moving from the Lion's Den to the intersecting round about at the Northern Highway and then returned back. As part of the process a committee was formed and agrements was reached to make the peace walk happen. My sign below said it all.




I was approached by Jules Vasquez of Channel 7 today and told that I was a "controversial figure." I even smirkly replied to them that "I don't call talk shows, but appear on them." Trying to tie in our documentation of acts of violence and crime I said to Jules  " We have documented from 1997 through newspaper articles 17 murders and 8 assualts that we know off. Marion Ali who tried to point out that the majority of the murders were crimes of passion, but my response was, the majority, I would not say so, but I can accept a few are."What The United Belize Advocacy Movement is most proud of was writting letter to request permission from the Police Department to do the peace walk and signing the bond to make the walk happen My sign representing the community says it all" Violence is Hateful!" 



What was good about the walk was that medical persons did not see a a gay man, but a colleague who contributed very effectively to the needs of the Accident and Emergency Section of the Karl Huesner Memorial Hospital. It will be interesting to see whether the interview done with channel 7, and others have the effect of increasing visibility of homophobia among medical providers or highlight their solidarity that crime and violence are issues that impact dignity and rights and that impact, requires a response no matter the sexual oreintation of the person. This really is the true test of the unions ability to understand the broader concern of crime and violence on the society an on human beings who are Belizean's. It would be ashame to see these noble thoughts be eroded by homophobia.

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Tuesday, June 12, 2012

Homosexuality and the Constitution

 Posted: June 12th, 2012




Simeon CR McIntosh
Former Dean & Prof of Jurisprudence
Faculty of Law, UWI, Cave Hill


It rather seems that there is no sinful act, outside of the classic crimes of murder, rape, etc, that so vexes the souls of the West Indian people than that of sexual relations among adult men. Certainly, it is not adulterous relations among adult men and women, which is so pervasive in our societies that if we were to criminalise that behaviour the overwhelming majority of us: our politicians, our judges, our clergy, and the rest of us common folk would be committed to the prisons; which we claim belong to her majesty. Of course, we would have to commit members of her majesty’s immediate family as well, since they, too, have sinned, and have fallen short of the glory of God.

But so we have it: we have criminalised sexual relations among some; and we adamantly refuse to have the legislation repealed, even when this may aid in the adoption of effective policies to combat the spread of the dreadful disease of HIV/Aids. What is especially sad about all this for me is that our politicians, judges, and lawyers, et al to grasp an essential truth: that the criminalisation of same-sex relations among consenting adults is private and in fact in violation of the fundamental principles articulated in our various constitutional texts. So when our Prime Minister, the Hon Freundel Stuart, proclaimed, in effect, that Barbados would not decriminalise homosexuality in contravention of those values that we hold most dear, at the directive of Great Britain and the United States, I intoned that I agree: we should rather do so in fidelity to those constitutional principles to which we have committed ourselves.

In similar vein, when, as Attorney General, the Hon Freundel Stuart proclaimed that Barbados may have to repeal the mandatory death penalty law and, possibly, amend Section 26 of the Constitution so as to bring Barbados in line with its international human rights obligations, again, I agreed; and I intoned that Barbados should indeed repeal its mandatory death penalty law, because that law is morally repugnant to the Constitution. And Section 26 of the Constitution should be amended because, as written, that particular provision allows for a rather supercilious reading of the Constitution by the Privy Council and our WI judges, which may result in ordinary legislation overriding the fundamental rights provisions of the Constitution(s). That was most evident in the Ophelia King case.

Homosexuality
It bears noting that in the case of Barbados and those jurisdictions with a constitutional savings law clause, the law criminalising homosexuality is saved and is therefore said to be insulated from constitutional challenge. This, I am sure, would be one of the arguments advanced by lawyers and judges who are opposed to the decriminalisation of the practice. However, the stock arguments I have heard favouring continued criminalisation of the practice are that homosexuality is a horrible sin, an abomination in the face of God. Also, it is an unnatural act and is most disgusting; hardly the grounds for the State’s criminalisation of any form of behaviour.

But let us take the religious argument first. As I have stated on so many occasions before, for those of us who accept the teachings of our scriptural texts, homosexuality, like adultery, is a sin; and it shall remain a sin into eternity. However, in the constitutionalist State’s decision to criminalise any form of behaviour, the fact that that behaviour is sinful cannot be the sole moral predicate for criminalising it. For having regard to the fact that the criminal law regime in a democratic society is the most coercive area of the law, then the State has the political obligation to its citizens to advance compelling moral justification for criminalising certain practices. Murder and rape stand as paradigmatic examples of how the compelling moral justification for the criminalisation of such acts would at once explain why our society would be grossly unjust had we not legislated such crimes. And, as for the unnatural and disgusting nature of homosexuality, nothing more need be said, since that, in and of itself, establishes no moral ground for the criminalisation of the practice.

However, I would hasten to add that the fact that the religious argument must fail as the sole moral ground for the criminalisation of homosexuality—as I would explain shortly—does not mean that it is irrelevant. Quite to the contrary. For the Church, the Temple, and the Mosque, as some of the most important institutions in civil society, protected by the fundamental right of freedom of speech and of religion, claim a central place in the Public Square. Their teachings must school us to a more exacting temper of religious faith. They must be that agency by which we would preserve those values that we hold most dear; and by which we would allow the offices of our religious faiths to speak transcendent truth to wordly power. But theirs remains one voice among many in that communal discourse by which we hope to fashion a just social order. The Church, the Temple, and the Mosque must therefore continue to preach against the practice of homosexuality as long as they continue to believe that this is contrary to sound religious faith.     

A Fresh Start: The WI Polity
Let us try starting over again. It has long been my firm belief that on this vexing, emotional matter of the practice of homosexuality, we have always missed the central interpretive issue: whether, in a democratic society, such as ours, the State has the constitutional authority to criminalise same-sex relations among consenting adults in private. For us, the answer to the question must turn on a careful articulation of the nature of the West Indian (Independence) Constitution and of the polity that such a constitution informs. In this articulation, we must locate a compelling theory of criminalisation.

It is submitted that the West Indian Constitution stands in the tradition of written constitutionalism: an idea first forged in the American founding over the past two centuries; the idea of a polity constituted and regulated by a written fundamental law, structured on the principle of the separation of powers, and entrenching a set of fundamental rights and freedoms, enforceable by an independent judiciary for the protection of the citizenry against arbitrary and capricious government, and to ensure that the exercise of legitimate governmental powers always remains within morally obligatory limits. In a word, these fundamental rights and freedoms, as principles of political morality, impose moral constraints upon the State and its various institutions and offices as to the policies that may legitimately be adopted and how the citizenry may be treated as free and equal persons. Hence the common understanding that constitutional, democratic government is limited government. Indeed, it is these rights and freedoms that give to constitutional democracy its claim of moral distinction among other forms of political rule.

But most importantly, these rights and freedoms articulated in Western constitutional texts, including ours, are held equally by every citizen of the State. They are otherwise referred to in the philosophical literature as the basic human rights of the individual person, constitutive of the ideal of human dignity and of the equality of persons. Therefore, any limitations placed by the State on the exercise of these rights and freedoms must themselves be morally justified. Again, this is what distinguishes constitutional democracy from all other forms of political rule, in that the very conception of democracy that is entailed is one which places moral boundaries on the majoritarian principle of democratic governance.
That is to say, while we readily recognise the majoritarian principle as one of the defining principles of constitutional, democratic rule, we are yet mindful of the fact that, for this form of governance to have great normative value and any claim to moral distinction, there are certain issues of principle which cannot simply be determined on the grounds of whatever happens to be the desire or the preference of the overwhelming majority of persons in the society. For if that were the case, then minorities in a society would forever be at the mercy of the majority. They would hold their fundamental rights and freedoms at the sufferance of the majority.
Democracy and Criminalisation
As I have intimated at the very beginning of this piece, we need a theory of criminalisation consequent on a more sophisticated understanding of constitutional, democratic governance. I rather suspect that we have eschewed any serious philosophic reflection on this question of criminalisation because the regime of classic crimes we have inherited from colonial days seems pretty self-evident to us. Moreover, we have for nigh two hundred years been under the tutelage of the judges of her majesty’s judicial committee, whose judicial opinions hardly impress me as being informed by any deep philosophic understanding of the law; something to be expected of all judges, in particular, those of the highest court. Hence our need for a fresh start. For if we are to make some sense of this deeply, troubling emotional issue surrounding the criminalisation of same-sex relations among consenting adults in private, then we need to start with a general theory of criminalisation.

To repeat, in our written constitutional texts, we have committed ourselves to live according to certain constitutional principles, properly understood. These constitutional principles, which include certain principles of political morality, at once empower the State to act affirmatively and, at the same time, establish the morally obligatory boundaries within which the central competences of the State—the legislature, the executive, and the judiciary—may exercise their legitimate governmental powers. Among these powers is that awesome power of the legislature to make laws for the governance of the society. But this power is always subject to the constitutional constraints articulated in the Fundamental Law. Thus, the power to make law, which entails the power to determine what forms of behaviour should be criminalised, requires that the State offer compelling justification for such legislation. Justification is of course required for all legislation; however, for the criminal law, having regard to the punishments that may be exacted for the commission of a crime, the justification advanced in favour of such legislation must be morally compelling.

What is of the utmost importance here is that although ordinary legislative enactments are based on policy considerations, the criminal law is especially demanding that any such legislation comports with the very principles of political morality to which the people of a democratic society have committed themselves. On this view, it can never be the case, without more, that a particular piece of legislation is eminently required because the overwhelming majority of citizens demand it. Rather, where there is such strong support for a piece of legislation, it must be the case that such support coincides with the very constitutional principles that would justify the legislation as being eminently just.

Put differently, this is the requirement of the most critical constitutional principle of due process of law: that the State does not criminalise any form of behaviour and impose severe forms of punishment for the commission of crimes without compelling justification for doing so. So, notwithstanding that much of our criminal law would have preceded the enactment of our Independence Constitutions, these texts nonetheless establish the conceptual contexts whereby we make sense of our criminal law regime in the West Indies. Murder and rape are morally justified as crimes because they constitute a gross violation of some of the most basic human rights of the individual: the right to life and to bodily integrity, among others. Similarly, the severe forms of punishment imposed for these crimes are morally justified because they comport with the degree of moral culpability entailed in the commission of these crimes, and are therefore required to vindicate the moral worth of the victims and to reaffirm the sovereignty of the State and our collective commitment to live according to certain principles of political morality, properly understood.
The Savings Clause
But the WI Constitutional Text suffers a peculiar anomaly. There is that savings law clause which, as written and understood, insulates laws which were in existence at the time of independence from constitutional challenge. Indeed, there are those clauses that speak specifically to the criminal law and to forms of punishment in existence at the time of independence. For example, the mandatory death penalty law (and associated penalties) is one that has most exercised the judicial mind for the past several years. The Barbados Clause (Section 26 of the Constitution) seems to cover all existing laws, so I will use it as an example.

First, I wish to state that, from a certain standpoint, a savings law clause, such as Section 26, does the obvious: it states in essence that all existing laws which are not expressly abrogated by the Independence Constitution are hereby saved. To the legal philosopher, this very simple claim is of extraordinary importance because of the conceptual transformation which inevitably ensues with political independence. For us, it is the inevitable rupture and discontinuity of British sovereignty over our territories and the fundamental conceptual transformation of our Constitutional Texts, which are now formally articulated in the language of human rights, common to all republican constitutions of Western democracies, which would now include the formally (unwritten) constitution of Britain itself. This principle of ‘discontinuity of law’ requires that we understand a savings law clause as giving formal expression to the idea that all laws existing at independence as being conceptually re-enacted by the Independence Constitution, and must therefore be interpreted in accordance with that Constitution. For, as the teachings of the late Prof Hans Kelsen and of the late Prof HLA Hart have made it so painfully obvious: all laws now derive their validity from the Independence Constitution.

But, sadly, our judges, those of the Privy Council and WI judges, miss this critical point about the discontinuity of law, and instead assume an unbroken continuity between the colonial constitution by which we were governed and the Independence Constitution. Thus, in the famous Ophelia Kingcase against the Attorney General of Barbados, all our judges were preoccupied with questions about the Crown’s relationship with its servants, and the powers that the Crown—a Crown which has yet to be explained—has retained under the Barbados Constitution. In the end, at the Privy Council, the case came to rest on the rather idiotic premise that the crown retained the power, as per a 1948 statute, to vary the emoluments of its servants at will.

In consequence, the most important philosophical question for constitutional interpretation was never frontally addressed: How was the Barbadian polity reconstituted and transformed by a written Constitution which expressly entrenched a set of basic human rights of the citizen? I submit that if this question had been diligently pursued, not only would we have been tutored in a more sophisticated reading of our (WI) constitutional law, but we would also have been led to a deeper philosophic problem at the heart of the case: the problem of distributive justice; a problem of the equitable distribution of benefits and burdens among members of the society. At this level, we would have seen how central the constitutional principle of due process would have been to a just resolution of Mrs Ophelia King’s case. I rather suspect that then Prime Minister Arthur had gleaned this in a statement he had made some years later, pledging the restoration of the salaries of civil servants.

But the reader may think that I have digressed too far afield. But I have not really; the two cases are inextricably linked in the hermeneutic reading that I am advancing for the WI Constitution. Moreover, for Barbados and those countries that still retain a savings law clause in their Constitutions, the reading of these Texts may be skewed in deference to the clause. That is because the complete language of the clause states that an existing law, such as that criminalising same-sex relations among consenting adults, shall not be found to be inconsistent with the fundamental rights provisions of the Constitution.
So we have now come full circle to the central question as to how the West Indian Constitution ought to be read in respect of a challenge to the constitutionality of the law criminalising same-sex relations among consenting adults in private. The reader would note that I have not used words like “gay rights” or “homosexual rights,” simply because such terms have invariably led to the wrong questions being asked. For the issue is not whether the State should recognise “gay rights,” given that those persons who practise homosexuality do not have any rights separate and apart from the rights that the rest of us have. The fundamental rights and freedoms articulated in our constitutional texts are held by all citizens equally. In a word, they are the rights of equal citizenship.

It therefore bears repeating, over and over again, that these rights and freedoms constrain the constitutionalist State as to the forms of behaviour it may or may not criminalise, and the degree of punishment it may justly inflict upon the citizen for the commission of a crime. Above all else, the West Indian Constitutionis an instrument of justice, and it must be interpreted to yield the integrity and coherence of its meaning as an instrument of such constitutive purpose. Thus, if the constitutionalist State is morally enjoined to treat its citizens as equals, then whenever the State affects to treat some citizens differently with respect to any benefit or burden, it must advance compelling justification for doing so. This is absolutely the only way in which the State can discharge its moral obligation to treat its citizens with equal concern and respect.

On the view of the foregoing, then, the appropriate question before us is whether the constitutionalist State has the authority to criminalise homosexual intimacy among consenting adults in private. What compelling justification, in other words, can the State advance for such action, which, in the case of Barbados, may result in a criminal defendant being imprisoned for life?  Does the State have the constitutional authority to criminalise heterosexual intimacy among consenting adults in private, whether or not that behaviour is adulterous?
We have noted earlier in this piece that the stock reasons advanced for the criminalisation of homosexuality are that it is a sin and an abomination in the face of God; and, also, that it is an unnatural and a disgusting practice. The more dominant reason is that homosexuality is sinful.

In all my pronouncements on this subject, I have never questioned the sinfulness of homosexuality; or of adultery, for that matter. It would be silly for one to do so, since that is the teaching of virtually all scriptural texts. Thus, for the many people who learn their morals from their religious texts, homosexuality remains a sin forever. So would murder and rape.
But the question remains whether our religious beliefs can be the sole predicate for the criminalisation of any form of behaviour. In other words, can the constitutionalist State claim justification for criminalizing homosexuality on the sole premise that it is against God’s law?
The answer to the question is no, for the simple reason that the right to religious liberty, which the Constitution protects, is held by all citizens equally; believers and non-believers alike. That is to say, some citizens’ choice not to believe the Bible, for example, is not something the law can regulate. Then there are those, as acts of conscience, who do not believe in any deity. This, too, is embraced by the right to freedom of conscience and religion.

So the State, in order to respect the principle of equal citizenship, must advance reasons that all citizens can in principle accept, irrespective of religious beliefs. In other words, if heterosexual relations among consenting adults in private are defended on grounds of privacy and of one’s moral right to make such critical choices as to when and with whom to be intimate, then the State must advance compelling reasons as to why homosexual relations among consenting adults in private could not be defended on the very grounds of privacy and of one’s moral right to make critical choices as to when and with whom to be intimate.
This is where the case against the decriminalisation of homosexuality fails. The State simply does not have any satisfactory argument in its favour. And the State is barred from using the argument that the overwhelming majority of West Indian people are against decriminalising homosexuality. For, if it is the case that, as citizens, we hold our fundamental rights as equals, then, as we have shown earlier, the State cannot use the desire, or the overwhelming preference, of the majority in the society, no matter how strong and enduring that desire or preference may be, as the basis for denying to one group of citizens the equal protection of their fundamental rights and freedoms.

Finally, we come to the savings law clause. This provision creates a contradiction within the West Indian Constitution, which can be interpreted to allow ordinary law to trump the fundamental rights provisions of the Constitution. This has led to rather unjust decisions, particularly in death penalty cases. However, the question remains, whether in the face of the reluctance of West Indian Governments to repeal the offending laws and remove the savings law clause from their Constitutions, the Courts (including the CCJ) are nonetheless empowered to act in fidelity to the Constitutions. The answer is a resounding, “Yes”; and for the following reasons.

The principal judicial office of our Courts is to enforce our democratic Constitutions. All our judges have taken an oath of fidelity to our Constitutions. This is in the very nature of the judicial office. But the West Indian Constitution, have noted, imposes certain moral injunctions upon all officers of the State to respect the fundamental rights and freedoms of the citizenry. Therefore, our judges have a moral obligation to interpret our Constitutions in a manner that would make them the best instruments of justice that they can possibly be. And this obligation holds in the face of a savings law clause in the Constitution.
So, in closing, I re-echo my agreement with Prime Minister Stuart, that he should not repeal the law criminalising homosexuality on the directive of the British or US government. Rather, he should repeal the law because it is the just thing to do. Failing this, we await a challenge to the constitutionality of that law in the courts across the region.

Source: http://www.guardian.co.tt/lifestyle/sunday-january-1-2012/homosexuality-and-consitution

State Sodomy Laws continue to Target LGBT Americans

State Sodomy Laws Continue To Target LGBT Americans

August 08, 2011 3:26 pm ET by Carlos Maza
Up until 1962, gay sex between two consenting adults was a felony in every state in the United States. So-called “crime against nature” or “sodomy” laws -- the term "sodomy” is a reference to the biblical story of Sodom and Gomorrah -- typically punished violators with lengthy prison sentences, fines, and even hard labor.  Although these laws typically targeted gays and lesbians, some statutes were written broadly enough to cover any form of non-vaginal intercourse, including oral and anal sex between heterosexuals.
While many states moved to repeal their sodomy laws in the late 1900s, others -- like Georgia  -- moved in the opposite direction. In the 1986 Bowers v. Hardwick decision, the Supreme Court upheld Georgia’s sodomy law, arguing that there was no “fundamental right upon homosexuals to engage in sodomy.”
After Bowers, several more states began moving towards decriminalizing private acts of gay sex between consenting adults. It wasn’t until 2003, however, that the Supreme Court finally reconsidered its position on sodomy laws. 
In Lawrence v. Texas (2003), the U.S. Supreme Court ruled 6-3 that Texas’ sodomy statute was unconstitutional, marking a major legal victory on the path towards LGBT equality. With the remainder of state sodomy laws technically invalidated by Lawrence, the LGBT community began to shift its focus. Alexis Agathocleous, staff attorney with the Center for Constitutional Rights, recently wrote:
Coming seventeen years after Bowers v. Hardwick, the Supreme Court's seething antigay decision that upheld a Georgia sodomy law, Lawrence felt like a sea change. Laws actually criminalizing the community, many people assumed, were a relic of the past. And accordingly, the LGBT rights movement shifted gears: litigation, lobbying, advocacy, and resources in the years since Lawrence have overwhelmingly focused on civil institutions such as marriage and visibility in the mainstream media. In short, the mainstream LGBT community stopped talking about criminal justice.
Eight years later, however, eighteen states still refuse to rewrite their laws and take these anti-gay relics off their books, with countless LGBT Americans continuing to feel their devastating effects as a result. Several state legislatures and courts have exploited loopholes in the Lawrence decision, while others have simply refused to acknowledge the decision altogether.

Continued Enforcement

Nearly a decade after Lawrence, many states have continued to enforce laws prohibiting private, consensual sex between same-sex adults.
In Michigan, the practice of charging and convicting gay men under the state’s “Abominable and Detestable Crime Against Nature” or “Gross Indecency” laws still exists, with violators facing the risk of having to register as sex offenders and prison sentences of up to 15 years. According to Rudy Serra, attorney and Chairman of the Executive Clemency Council for the State of Michigan, police officers continue to aggressively prosecute LGBT people without legal challenge:
The legislature still has not repealed the sodomy and gross indecency statutes, even after Lawrence v. Texas, and ultra-conservative ("strict constructionist") judges still continue to enforce the "legislative intent" to criminalize gay sex, regardless of what the U.S. Supreme Court says.
LGBT people in Michigan continue to be charged with crimes for public speech, in which they let another person know they are interested in private, unpaid sex with another adult. Bag-A-Fag (undercover decoy cop) operations, where police officers pretend to be gay men cruising for unpaid, consensual sex continue in Michigan. LGBT people are still at risk of spending 15 years in state prison for acts that are perfectly legal in most other states. [emphasis added]
Even in states where sodomy laws are understood by judges to be unconstitutional, the presence of sodomy laws can cause gays and lesbians to be dragged into humiliating, costly, and discriminatory legal disputes.
In 2008, Nelson Sloan and Ryan Flynn were arrested by the Raleigh Police Department under North Carolina's "crime against nature" statue for engaging in private, consensual, homosexual sex. The charge is considered a Class I felony in the state and carried a punishment of up to two years in prison. “I have never been so humiliated in all my life,” Sloan said. “It’s just awful.”
The Raleigh police Captain at the time, T.D. Hardy, explained that, even though the state’s law against sodomy had been struck down by Lawrence, his department's actions were still valid:
“The law is still on the books. …What the D.A.’s office will do with it, I don’t know.” [The News & Observer, 5/25/08, via Nexis]
The Assistant District Attorney eventually decided to drop the charges against the two men, citing Lawrence. Sloan responded by noting that he had nonetheless been punished for consensual sex:
"I am grateful that the DA's office has a better understanding of the Constitution than the Raleigh Police Department," Sloan said in a prepared statement Friday. "However, as long as this law remains on the books, it is a crime punishable by an arrest, a stay in jail, media attention and a fine of $450." [The News & Observer, 5/31/08, via Nexis]
After the charges were dropped, Joe Furmick, the veteran Wake County magistrate who booked the two men, explained why he chose to continue enforcing the state’s unconstitutional "crime against nature" law:
"I couldn't care less what these guys do," he said. "I'm with the old Victorian lady who said, 'I don't care what people do as long as they don't do it in the street and scare the horses.' But you don't want me to decide which laws to enforce and which not to. My opinion shouldn't enter into it." [The News & Observer, 5/31/08, via  Nexis]
Unfortunately, the practice of improperly arresting gays and lesbians on "crime against nature" or sodomy charges only to have them later dismissed is not uncommon in states that still maintain these laws. In Virginia, for example, Attorney General Ken Cuccinelli’s office defends the practice, stating it was “how the system works.”
In some states, keeping sodomy laws on the books can result in abuse even in cases where sexual intercourse hasn’t occurred. In 2009, two gay men were kicked out of an El Paso restaurant for kissing in public. When the men called the police, officers informed them that "it was illegal for two men to kiss in public and said they could  be cited for ‘homosexual conduct,’” even though the state statute only prohibits “deviate sexual intercourse with another individual of the same sex.” The local police department eventually claimed that the officers involved were “relatively inexperienced,” but the incident demonstrates the ease with which seemingly dormant anti-sodomy laws can quickly turn into weapons to be used against LGBT citizens.

Lawrence’s Loopholes

Several state legislatures and courts have attempted to exploit loopholes in the Supreme Court’s decision in Lawrence v. Texas in order to continue enforcing laws criminalizing homosexuality. At the end of the majority opinion in Lawrence, Justice Kennedy wrote a paragraph outlining the parameters of the Supreme Court’s decision:
The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other engaged in sexual practices common to a homosexual lifestyle. [emphasis added]
This paragraph has been the source of a great amount of ambiguity for those attempting to determine the constitutionality of state sodomy laws. It is frequently cited by state and lower federal courts in order to attempt to limit the scope of Lawrence, especially when dealing with prostitution and sex with minors. As Joseph Wardenski, a trial attorney at the U.S. Department of Justice, Civil Rights Division, wrote:
Despite the Lawrence majority's broad themes of equality and dignity for gay men and lesbians, several commentators have argued that the decision's scope is much less expansive. Indeed, in several early decisions applying Lawrence, courts have interpreted the decision quite narrowly. The Court itself has thus far declined to weigh in on the correct reach of Lawrence.  [Journal of Criminal Law and Criminology, Vol. 95 No. 4, 6/22/05, via Nexis]
As a result, some states have attempted to justify their "crime against nature" laws by arguing that their existing laws against crimes like prostitution and sex with minors are not written broadly enough to include oral and anal sex. According to the North Carolina Gay and Lesbian Legal Association:
Law enforcement officers and prosecutors argue that they continue to enforce and press charges for crimes against nature because the laws against prostitution, sex with minors, and the like are not worded broadly enough to include oral and anal sex. While this rationale may seem reasonable at first, the problem is that enforcement of the crimes against nature law penalizes homosexual men more severely than heterosexuals for sexual activity in secluded areas. For example, a heterosexual couple "parking" at night in a deserted area or making love in the woods will most likely be ignored by law enforcement officers. At most, they will be charged with indecent exposure, a misdemeanor. Two men in an identical situation, however, will usually be charged with crimes against nature--a felony. [emphasis added]
The prostitution exception has caused some state sodomy laws to evolve into a kind of “gay tax” by allowing police officers and prosecutors to pursue harsher penalties against LGBT suspects than they would for heterosexuals. In Louisiana, for example, people accused of engaging in prostitution can be charged either under the state’s prostitution statute or under the solicitation provision of Louisiana’s "crime against nature" law, which exclusively targets oral and anal sex. According to the Center for Constitutional Rights:
Police and prosecutors have unfettered discretion in choosing which to charge. But a Crime Against Nature conviction subjects people to far harsher penalties than a prostitution conviction. Most significantly, individuals convicted of a Crime Against Nature are forced to register as sex offenders.
[...]
CCR further contends that the only reason our clients are registered sex offenders is that they were convicted under the provisions of a 200-year-old statute that condemns non-procreative sex acts and sex acts traditionally associated with homosexuality, solely on grounds of moral disapproval. 
Being forced to register as a sex offender can have devastating, life-long consequences for those who are charged under "crime against nature" laws. Ian Doe, a Louisiana resident who was kicked out of his house at age 13 for being gay and turned to sex work in order to survive, explained how being labeled a sex offender has undermined his ability to find a job and secure medical care:
DOE: And because of this charge, I can’t get a decent job now. I can’t do anything because of the charge ... I’ve been everywhere trying to get employment. I've been -- the minute they find out that I’m a sex offender or I’m a registered sex offender, they tell me “no thank you” or they’ll call me back or they’ll get back with me, and they never do. … I don’t believe that I deserve this kind of -- this kind of punishment. I did four years in prison for this. While I was in prison for this crime, for this crime that I didn’t even do that -- all I said was “fifty dollars,” and they put me away for four years. And while I was in there, I was raped by an officer, a federal officer of the law that worked at the prison who was dealt with. I also was infected with HIV. I go into prison, and I get infected, and while -- and now I’m out here dealing with my health. I’m dealing with trying to get a job. … I don’t believe I deserve to be punished like this. I believe that this should be changed for many reasons. But for one, we don’t deserve this. I mean, it’s because all the lack of a judgment of one police officer to do something, so if he wants to put a prostitution charge or if he wants to put a "crimes against nature" charge on you. There’s no crime committed.
As Doe’s testimony illustrates, "crime against nature" laws are especially devastating for the most vulnerable members of the LGBT community: homeless LGBT youth, most of whom have either been kicked out of their homes or forced to run away from hostile family members due to their sexual orientation or gender identity. Once on the streets, many LGBT teens resort to sex work in order to survive, making them easy targets for officers looking to enforce sodomy laws.
LGBT youth are also targeted by the “minor exception” that some courts have argued was established in Lawrence. As Wardenski wrote:
Since Lawrence, however, some courts have misunderstood and wrongly applied one seven-word phrase in Justice Anthony Kennedy's majority opinion, "[t]he present case does not involve minors," which this comment will refer to as "the minor exception." This phrase has been incorrectly interpreted to limit the reach of Lawrence by excluding LGBT youth from the decision's scope, since its proper application is to preclude adult sex offenders from seeking a liberty interest to engage in sexual conduct with children--an issue unrelated to sexual orientation. [Journal of Criminal Law and Criminology, Vol. 95 No. 4, 6/22/05, via Nexis, internal citations removed for clarity]
This exception can play a tremendous role in determining the fate of LGBT teens engaging in same-sex sexual activity. In State v. Limon (2004), a Kansas state appellate court applied the exception in order to prosecute an 18-year-old man who, shortly after turning 18, engaged in consensual oral sex with a 14-year-old boy (both of them lived in the same state mental health facility). Wardenski explained how the use of the “minor exception” dramatically increased the 18-year-old’s punishment:
If the younger boy had been female, Kansas's so-called "Romeo and Juliet" law would have applied, subjecting the defendant to a sentence of just thirteen to fifteen months. The Romeo and Juliet statute provided that in statutory rape cases involving voluntary sexual relations between two "members of the opposite sex" where the defendant is nineteen or under and less than four years older than the other youth, the defendant would face significantly shorter prison terms and more lenient attendant penalties, such as reduced post-release supervision periods and sex offender registration requirements. Because the defendant, Matthew Limon, was of the same sex as the younger boy, however, the Romeo and Juliet law's shortened presumptive sentence did not apply, subjecting Limon instead to the severely long prison sentence and to sex offender registration requirements.  [Journal of Criminal Law and Criminology, Vol. 95 No. 4, 6/22/05, via Nexis, internal citations removed for clarity]
Sodomy laws establish a basis upon which state governments can punish LGBT people more severely than heterosexuals, even when the crimes they commit are the same. 

Codifying Anti-LGBT Bias

Even in states where sodomy and “crime against nature” laws are never enforced, the mere presence of the laws sends a powerful signal about the value of LGBT members to state and local communities. These laws reinforce negative stereotypes about homosexuality, same-sex relationships, and the validity of the lives of LGBT people. As explained in the Harvard Law Review:
Lawrence… has not eradicated the criminal statutes themselves nor their potential to inflict harm on gay and lesbian Americans. Since these laws were always “honored in the breach,” and wreaked their most insidious effects external to criminal prosecutions, no great victory can be claimed merely from having these unenforced statues held unenforceable. [Harvard Law Review, Vol. 118 No. 1070, 2004, via Lexis, emphasis added]
As a result, un-repealed sodomy laws continue to reinforce damaging stereotypes about gay and lesbian people, branding them as criminals and justifying anti-gay bigotry. As Christopher R. Leslie, Assistant Professor of Law at the Chicago-Kent College of Law, wrote:
Sodomy laws exist to brand gay men and lesbians as criminals. Social ordering necessitates the criminalization of sodomy, thereby creating a hierarchy that values heterosexuality over, and often to the exclusion of, homosexuality. This symbolic effect of sodomy laws is not dependent on their enforcement. Even though very few men and virtually no women ever suffer the full range of criminal sanctions permitted under state sodomy laws, these statutes impose "the stigma of criminality upon same-sex eroticism.”
Based on the mischaracterization that sodomy laws apply only to homosexuals, sodomy laws are currently justified as necessary to uphold an anti-gay morality. Any deterrent effect from sodomy laws is secondary to these primary symbolic effects. For their supporters, the laws are "seen not as a prohibition to be enforced as such, but rather as a symbol of societal disapproval.” Supporters argue that "these statutes may serve an important function even if unenforced." But the apparent function is not to condemn homosexual conduct, but homosexual persons. As one commentator put it, "unenforced sodomy laws are the chief systematic way that society as a whole tells gays they are scum.” Indeed, in every state "where sodomy statutes remain on the books, animus against lesbians and gays has been a major, if not the sole, reason for the decision to retain them."  [Harvard Civil Rights-Civil Liberties Law Review, Vol. 35 No. 103, Winter 2000, via Lexis, emphasis added, internal citations removed for clarity]
Although Leslie was writing in 2000, his conclusion remains true after Lawrence. Many state politicians continue to use anti-gay animus to justify maintaining their state sodomy laws. In states like Texas and Kansas, lawmakers consistently defeat efforts to repeal their sodomy laws. One Texan lawmaker said he was “hesitant to do any changing” to the state law books, asserting that it “better reflects the views of a lot of citizens.”
In Montana, where the state Republican Party maintains the criminalization of homosexuality as part of its party platform, GOP lawmakers recently defeated an effort to eliminate the state’s sodomy law. During the House Committee hearing on the effort, lawmakers repeatedly equated homosexuality with bestiality and pedophilia and warned that gay sex would drive up health care costs by spreading HIV.
This anti-gay animus isn’t limited to state politicians either. GOP presidential candidate Rick Santorum has repeatedly stated that he believes Lawrence was wrongly decided. National anti-gay groups like the the American Family Association (AFA) continue to push for the re-criminalization of sodomy. Peter Sprigg, Senior Fellow for Policy Studies with the Family Research Council (which filed an amicus brief in the Lawrence case), advocated a return to criminalization on national television.
The stigmatizing effect of these laws outlives the anti-gay legislators that put them into place. As Leslie point outs, sodomy laws can take on “lives on their own,” guiding public hostility towards LGBT people even as the LGBT community continues to make advancements at the state and national level:
Sodomy laws are kept on the books, even though state governments do not intend to actively enforce them, because the laws send a message to society that homosexuality is unacceptable. Even without actual criminal prosecution, the laws carry meaning. Statutes have significance completely independent of their actual enforcement. Law reflects society and informs itCurrent generations enshrine their morality by passing laws and perpetuate their prejudices by handing these laws down to their children. Soon, statutes take on lives of their own, and their very existence justifies their premises and consequent implications. [Harvard Civil Rights-Civil Liberties Law Review, Vol. 35 No. 103, emphasis added, Winter 2000, via Lexis, internal citations removed for clarity]
The anti-gay public hostility reinforced by state sodomy laws can contribute to widespread violence against members of the LGBT community. While state governments may not wish to enforce their archaic anti-gay statute, members of the public may wish to enforce the law privately, typically in the form of gay-bashing:
[M]ere decriminalization is an inadequate remedy for the harms inflicted by sodomy laws. As long as the statutes continue to bear the imprimatur of the state and are enshrined in state penal codes, the state continues to express a degrading attitude toward a minority group, demeaning its members… [U]ntil these laws are disavowed, they continue to validate "private enforcement" - gay bashing by private citizens. [Harvard Law Review, Vol. 118 No. 1070, 2004, via Lexis]
Even when they don’t motivate acts of anti-gay violence, the messages produced by sodomy laws can have a profound impact on the way that LGBT youth develop their sense of self-worth and self-esteem.  The criminalization of homosexuality reinforces the idea that LGBT people are outlaws who live “outside the boundary of social acceptance.” According to Ryan Goodman, Bigelow Fellow and Lecturer in Law at University of Chicago Law School:
Many people first learn about the existence of sodomy laws during their adolescence. For lesbian and gay individuals, the law tells them, at an early age, that they are outside the boundary of social acceptance. A common misunderstanding of the law is that it outlaws homosexuals or bans being gay. The distinction between conduct and identity is conflated, and one clear message sent is that homosexuals are delinquents; the law signifies public abhorrence of lesbians and gays. Even for individuals who keep the distinction between act and identity fairly clear, the law unmistakably signals disapproval of homosexuality. This affects individuals' self-image both in their reflections of themselves and in their parents' assessments of them, another prism through which they perceive themselves. [California Law Review, Vol. 89 No. 643, May 2001, via Lexis, internal citations removed for clarity]
Studies have already demonstrated that rates of LGBT teen suicide are higher in conservative areas. Given the impact that these laws can have on creating virulently homophobic social and political climates in these states -- as well as the toxic debates that arise when efforts are made to repeal them -- it isn’t difficult to imagine that they also play a role in contributing to the astronomically high rates of LGBT youth suicides in America. 

Moving Forward

It is clear that the promise of the Supreme Court’s decision in Lawrence v. Texas remains unfulfilled. Despite significant progress made by the LGBT community in recent years, many LGBT Americans continue to live in the shadow of their state’s outdated sodomy laws. These laws are consistently misused and manipulated in order to single out and punish sexual minorities, often in ways that fly in the face of the Lawrence decision.
Even in states where these statutes are never enforced, anti-LGBT animosity is fanned by government recognition that LGBT people are to be viewed as criminals in the eyes of the law. This animosity helps create the conditions for anti-LGBT hate crimes as well as disproportionate rates of suicide among non-heterosexual youth.
As the American public moves towards greater respect for and tolerance towards LGBT people, the issue of still-standing state sodomy laws should not be forgotten. These statutes continue to represent a major obstacle on the path to full LGBT equality. Their repeal should be just as much of a priority for the LGBT community as is the struggle for marriage equality. As Serra wrote:
As long as we are vulnerable to felony charges for consensual, unpaid sex with other adults, marriage equality and other goals are superfluous. Many LGBT people deny the problem because they feel that defending sex offenders is unpopular and because they buy into the majority's hysteria over sex crimes, but our most basic, fundamental rights to liberty, privacy and intimate association are still at risk.

Source:  http://equalitymatters.org/blog/201108080012

Monday, June 11, 2012

Resolution 2721 Approved in Bolivia


 June 11th, 2012



AG/RES. 2721 (XLII-O/12)

HUMAN RIGHTS, SEXUAL ORIENTATION, AND GENDER IDENTITY

 (Adopted at the second plenary session, held on June 4, 2012)

 THE GENERAL ASSEMBLY,

TAKING INTO ACCOUNT resolutions AG/RES. 2435 (XXXVIII-O/08), AG/RES. 2504 (XXXIX-O/09), AG/RES. 2600 (XL-O/10), and AG/RES. 2653 (XLI-O/11), “Human Rights, Sexual Orientation, and Gender Identity”;

REITERATING:

That the Universal Declaration of Human Rights affirms that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set forth in that instrument, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status; and

That the American Declaration of the Rights and Duties of Man establishes that every human being has the right to life, liberty, and security of his person without distinction as to race, sex, language, creed, or any other factor;

CONSIDERING that the Charter of the Organization of American States proclaims that the historic mission of the Americas is to offer to man a land of liberty and a favorable environment for the development of his personality and the realization of his just aspirations;

REAFFIRMING the principles of universality, indivisibility, and interdependence of human rights;

TAKING NOTE:
 Of the creation by the Inter-American Commission on Human Rights of the Unit for the Rights of Lesbians, Gays, and Bisexual, Transsexual, and Intersex Persons (LGBTI), and of its work plan, which includes the preparation of a hemispheric report on this issue;
 Of the Second Report of the IACHR on the Situation of Human Rights Defenders in the Americas, according to which organizations that promote and defend the human rights of LGBTI persons play a fundamental role in the region in terms of public oversight to ensure compliance with the states’ obligations vis-à-vis the rights to privacy, equality, and nondiscrimination, and are faced with obstacles, among them, murder, threats, criminalization of their activities, the failure to take a focused approach to the investigation of crimes committed by both state and non-state actors against them, and discourse calculated to discredit the defenders of the rights of LGBTI persons; and
 Of the Declaration on Sexual Orientation and Gender Identity, presented to the United Nations General Assembly on December 18, 2008; and
 NOTING WITH CONCERN the acts of violence and related human rights violations as well as discrimination practiced against persons because of their sexual orientation and gender identity,
 RESOLVES:
 1.                  To condemn discrimination against persons by reason of their sexual orientation and gender identity; and to urge the states within the parameters of the legal institutions of their domestic systems to eliminate, where they exist, barriers faced by lesbians, gays, and bisexual, transsexual, and intersex (LGBTI) persons in access to political participation and in other areas of public life.
 2.                  To encourage member states to consider, within the parameters of the legal institutions of their domestic systems, adopting public policies against discrimination by reason of sexual orientation and gender identity.
 3.                  To condemn acts of violence and human rights violations committed against persons by reason of their sexual orientation and gender identity; and to urge states to strengthen their national institutions with a view to preventing and investigating these acts and violations and ensuring due judicial protection for victims on an equal footing and that the perpetrators are brought to justice.
 4.                  To urge states to ensure adequate protection for human rights defenders who work on the issue of acts of violence, discrimination, and human rights violations committed against individuals on the basis of their sexual orientation and gender identity.
 5.                  To request the Inter-American Commission on Human Rights (IACHR) to pay particular attention to its work plan titled “Rights of LGBTI People” and, in keeping with its established practice, to prepare a hemispheric study on the subject; and to urge member states to support the efforts of the Commission in this area.
 6.                  To request the IACHR to prepare a study on legislation and provisions in force in the OAS member states restricting the human rights of individuals by reason of their sexual orientation or gender identity and to prepare, based on that study, guidelines aimed at promoting the decriminalization of homosexuality.
 7.                  To urge the member states that has not yet done so to consider signing, ratifying, or acceding to, as the case may be, the inter-American human rights instruments.
 8.                  To request the Permanent Council to report to the General Assembly on the implementation of this resolution. Execution of the activities envisaged in this resolution will be subject to the availability of financial resources in the program-budget of the Organization and other resources.