2) Anal Sexual Activity
“Section 4(1)(c) and (d) reads as follows:
Section 4(1) – a person (hereinafter called “the Offender”) commits the offence or grievous sexual assault upon another (hereinafter called the “victim”) where in the circumstances specified in subsection (3) the offender –
(c) penetrates the anus of the victim with his penis;
(d) causes another person to penetrate the anus of the victim with the penis of that other person;
Mr. President, we already have the common aw and also sections 76 and 77 of the offences against the person act which provides the penalties for buggery and the attempt to commit buggery.
Buggery is anal sex between two males, a male to a female and a male to a female with an animal. In other words it covers unnatural offences. Buggery is a crime whether or not one consents. On the other hand, grievous sexual assault would be an act done without consent. If we implement paragraphs (c) and (d) which in effect is buggery without consent I am of the view that some good lawyer can one day use it as the basis for an argument that the existing anti-buggery law ought to be replaced concerning consenting adults in private. Such a result would not be in keeping with the common good. I would therefore urge this house to take the view that paragraphs (c) and (d) should be deleted entirely.
3) Other Sexual activity between males
Paragraphs (g) and (h) of the same section 4(I) that defines grievous sexual assault require scrutiny. Paragraphs (g) reads:
(g) places his mouth or her mouth onto the vagina , penis or anus of the victim ; or
Paragraphs (h) reads:
(h) causes another person to place his or her mouth onto the vagina, penis or anus of the victim.
Mr. President these sections speak to what is now commonly termed as oral sex. At present such acts are committed with the use of mouth on the penis or the anus and they are between two male persons, it is captured by section 79 of the offences against the person act under the offence of gross indecency. That offence also does not require consent. Similarly, by including such acts under grievous sexual assault we would also be setting up the basis for the argument that since consent is an issue we should do away with the gross indecency provision which does not require consent? Again we must tread carefully. I recommend that the references to the penis and anus in paragraphs (g) and (h) be deleted.
Now let me hasten to say that I am not insensitive to any cases where maybe a man may be “raped” by another man. I know that the maximum penalty for buggery is only (10) ten years whilst maximum penalty that would be imposed for rape or grievous sexual assault is imprisonment for life. I am however pointing to the possible dangers of going down the road of including anal sexual activity or other sexual acts between males in this bill. As a concession, the proposed section 4(I) (c), (d), (g) and (h) could remain with a provision that nothing in the new law should be construed to reverse the common law or repeal sections 76, 77 & 79 of the offences against the person act that address buggery and gross indecency. However, I am not sure if such a proviso could remain indefinitely in light of what I understand are recent utterances by the privy council that legislation must be in keeping with new human rights thinking which may find buggery provisions repugnant. The legal luminaries can help me with that. We cannot assume either that a Caribbean Court of justice will necessarily take a position in keeping with the values of our people since judges are supposed to think independently and some judges may be of a liberal mind set. An individual judge may take a position that is not shared by the majority.”
She continued with Gender neutrality rape and Marital rape.