On Tuesday 25 March, the Court of Appeal of Trinidad and Tobago allowed the appeal of the Attorney General in the case of Jason Jones v. Attorney General of Trinidad and Tobago (2018), thereby overturning the 2018 High Court ruling that had decriminalised consensual same-sex sexual activity.
 
The 2018 ruling found that the sections of the 1986 Sexual Offences Act (‘the 1986 Act’) that prohibited ‘buggery’ and ‘serious indecency’ between men or between women were unconstitutional, despite a savings law clause in the country’s Constitution that shields laws that pre-existed the adoption of the Constitution (in 1976) from being reviewed by the courts.  
 
The provisions criminalising same-sex intimacy in Trinidad and Tobago were originally included in the 1925 Offences Against the Person Act. That Act prohibited ‘buggery’ (section 60) with a maximum sentence of five years imprisonment and ‘gross indecency between males’ with a maximum sentence of two years (section 62).
 
In 1986, the Sexual Offences Act repealed and replaced laws relating to sexual crimes. It prohibited buggery under section 13 with a maximum term of imprisonment of 25 years, and prohibited ‘serious indecency’ under section 16, extending this prohibition to women, with a maximum term of imprisonment of five years. 
 
The Court of Appeal found that the savings law clause in the Constitution prevents the 1925 laws from being reviewed by the courts. It reasoned that the 1986 Act was a modification of the 1925 Act, rather than a ‘new’ law as had been argued by the Claimant and accepted by the High Court, and so the savings law clause applied.
 
However, as the 1986 Act post-dated the Constitution and went further in violating fundamental rights than the original law, the harsher provisions of that Act must be substituted with the lesser provisions of the 1925 Act. The Court of Appeal noted that it is up to the legislature, not the courts, to repeal those laws.
 
The immediate effect of the Court of Appeal’s order is that consensual same-sex intimacy is again criminalised in Trinidad and Tobago, between males only, with maximum penalties of five years for ‘buggery’ and two years for ‘gross indecency’. This brings the number of criminalising countries across the globe back up to 65.
 
There are now six remaining countries in the Caribbean region that maintain these discriminatory colonial-era laws, including Trinidad and Tobago.
 
At the Trust, we are proud to have supported the successful cases in other countries such as Belize, Barbados, St Kitts and Nevis, and Antigua and Barbuda, as well as the decision of the Inter-American Commission that found that Jamaica’s continued retention of the ‘buggery’ and ‘gross indecency’ laws violates the American Convention on Human Rights. We will continue working with our partners in the region to reverse this increase in its criminalising countries.

Taken from a newsletter from Human Dignity Trust.