Date: Fri, 23 Aug 1996 11:41:09 -0700 From: crosswix@ix.netcom.com (camille) Subject: Anti-Sodomy Law - CAYMAN ISLANDS (West Indies) The Magnus Hirschfeld Centre for Human Rights William A. Courson, Executive Director Crosswicks House 551 Valley Road, Suite 169 Upper Montclair, New Jersey 07043 Facsimile: 201-746-3147 E-Mail: crosswix@ix.netcom.com WWW: http://www.xs4all.nl/~squeeze/magnus.html http://www.envirolink.org/orgs/magnuscentre http://www.netcom.com/~crosswix/small.html August 23, 1996 Dear Friends and Colleagues: I felt the attached, concerning a situation in the Cayman Islands (West Indies) would be of interest to you. Should you wish to share any comments or observations with me on this matter, I would be extremely grateful. Many thanks. Kindest regards, Bill Courson crosswix@ix.netcom.com THE MAGNUS HIRSCHFELD CENTRE FOR HUMAN RIGHTS C/O CROSSWICKS HOUSE 551 VALLEY ROAD, SUITE 169 UPPER MONTCLAIR, NEW JERSEY U.S.A. 07043 TELEPHONE: 201-746-9516 E-MAIL: CROSSWIX@IX.NETCOM.COM FACSIMILE: 201-746-3147 25 August 1996 The Rt. Hon. John Wynn Owen Governor & President of the Executive Council Government of the Cayman Islands Government Administration Building George Town, Grand Cayman, The Cayman Islands (West Indies) RE: Legal Status of Section 142, Cayman Islands Penal Code (As Amended 1995) Under the European Convention on Human Rights --------------------------------------------------------------------------------------------------------- Your Excellency, Dear Governor Owen: As you may be aware, the Isle of Man as well as Bermuda, both dependent territories of the United Kingdom recently amended their domestic legislation to bring the same into accord with the requirements of Articles 8(1) and 14 (inter alia) of the European Convention on Human Rights & Fundamental Freedoms as well as with the terms of various other international treaties to which the United Kingdom is signatory on its dependencies' behalves. Specifically the above-captioned legislation, which was in contravention of the "right to privacy" provisions of Article 8 and the "non-discrimination" provisions of Article 14 of the Convention applied the sanctions of criminal law to homosexual conduct occurring between males even when that conduct was private, consensual and taking place between persons in their majority. The contravening domestic legislation was embodied in its "Sexual Offenses Act" in the case of the Isle of Man and in the case of Bermuda in the latter's Bermuda Penal Code (Article 175 et seq.). As you may also be aware, the legislatures of both dependencies revised their contravening statutes in 1993 (Isle of Man) and 1994 (Bermuda) in the face of prospective action by the United Kingdom government in the event of their failure to do so; the imp etus for the action(s) by the United Kingdom lies in the fact that the United Kingdom retains legal responsibility for the conduct of its dependencies' defense and foreign relations, including the discharge of the latters' obligations under international law. Adherance to the terms of the aforecited Convention comprises an element of its dependencies' foreign relations for which the United Kingdom is responsible, a fact that is recognized in both United Kingdom legislation as well as, in the instant case, that of the Cayman Islands and as embodied in latter's Constitution. It has come to my attention that there continues to exist within Cayman Islands legislation a statute for all practical purposes identical to that rescinded in the cases of the Isle of Man and Bermuda, which legislation is in direct contravention of Artic les 8(1) and 14 of the aforecited Convention, viz., Article 142 of the Cayman Islands Penal Code. It is in this regard that I wish to draw your attention, in your capacity as the Crown's representative on the islands, to the legal implications of the afo recited statute's continued existence. As you are aware, the Cayman Islands occupies a constitutional position in relation to the United Kingdom practically identical to that of the aforementioned Crown dependencies, said relation being governed by the Constitution of the Cayman Islands (viz. , Constitution of the Cayman Islands Act of August 22, 1972). While I do not have on hand statistics available to confirm the frequency of prosecutions in the Cayman Islands under Article 142 of its Penal Code, I do not believe any have occurred to date. In this respect, I should point out that the existence of act ual prosecutions under this law are of far less concern to my colleagues and I than the fact of its continued existence. Notwithstanding the "inactive" status of enforcement of this article of the Cayman Islands Penal Code, the continued existence of the same represents (at least potentailly) a chilling restriction on a variety of basic human and civil rights, including the right to privacy, the right to association, to non-discrimination, and the right to equal protection of the law, to name several. So long as such statutes are permitted to continue in existence, the extension of fundamental rights to gay, lesbian and bi sexual persons can be seen not as a matter of law but one of governmental charity, i.e., "tolerance," which unlike rights guaranteed by law is capable of being withdrawn at any time. Needless to say, this is a situation that is neither legally, nor morally, tolerable. This situation has been addressed repeatedly by the European Court of Human Rights in matters brought before since 1988, viz., in the cases of Dudgeon vs. the United Kingdom (1988), Norris vs. Ireland (1992) and Modinos vs. Cyprus (1994). The Court is t he body charged with the interpretation and application of the European Convention on Human Rights, to which the United Kingdom and its dependencies are subject, and whose provisions are of a legally obligatory character. In addition, I should like to point out to Your Excellency that in its decision of 31 March 1994 in the case of Toonen vs. Australia, the United Nations Human Rights Committee found the respondent State in breach of its obligations under multiple provisi ons of the International Covenant on Civil & Political Rights on account of its tolerance within one of its political subdivisions (i.e., the State of Tasmania) of a statute identical for all practical purposes to that currently existing within the Cayma n Islands. The Committee at the time of its decision took pains to emphasize the fact that where the breach of obligation by the respondent party lay was not in the fact that the statute in question was actively enforced, inasmuch as it was not; rather, the breach laid in the fact that the statute continued to exist not having been rescinded by the local legislature. Both the United Kingdom, as well of course as its dependency the Cayman Islands, are legally subject to the above Covenant. My purpose in writing to you at this time, Governor Owen, is to is to inquire as to the position of the Government of the Cayman Islands in this matter, specifically, to inquire of you the following: (1) Has the Government of the Cayman Islands been approached by the Government of the United Kingdom with respect to the former's obligations under Articles 8(1) and 14 of the aforecited European Convention on Human Rights and multiple provisions of the a forecited International Covenant on Civil & Political Rights, particularly with respect to Article 142 of the Cayman Islands Penal Code? (2) By whom and when was this contact initiated? (3) Insofar as you are aware, what has been or is the response of the Government of the Cayman Islands to said contact, and does the Government of the Cayman Islands evince a willingness to introduce legislation to rescind Article 142 of its Penal Code, s o as to make its domestic law in consonance with its (and the United Kingdom's) legal obligations? (4) Failing action on the part of the Government and legislature of the Cayman Islands, has Your Excellency counseled the Government of the United Kingdom relative to the necessity of acting on the Cayman Islands' behalf by itself directly amending the of fending statute (as would have been the case with respect to both the Isle of Man and Bermuda, had the local legislatures failed to act in the matter)? I feel that I must respectfully point out that, pending Your Excellency's responses to the foregoing, it is the intention of the Hirschfeld Centre to bring this matter to the attention of the appropriate international and European fora. Your kind attention to the foregoing is most gratefully appreciated, and Your Excellency's promptest possible reply to the foregoing is respectfully requested given the timely nature of this matter. Best personal regards. Yours faithfully, William A.M. Courson Executive Director The Magnus Hirschfeld Centre for Human Rights cc: Sir John Summerfield, The Chief Justice The Grand Court of the Cayman Islands (George Town) The Hon. James Ryan, The Chief Secretary & Minister for Internal & External Affairs Government of the Cayman Islands (George Town) The Hon. Richard H. Coles, The Attorney General Government of the Cayman Islands (George Town) The Hon. Thomas C. Jefferson, The Minister for Tourism, Aviation & Commerce Government of the Cayman Islands (George Town) Mr. A.J. Beamish, Superintending Under-Secretary Mr. Mark Lennox-Boyd, Mr. J.M.A. Herdman West Indian & Atlantic Department, The Foreign & Commonwealth Office, United Kingdom Government, FCO-Whitehall, London SW1A 2AH The Superintending Under-Secretary, Dependent Territories Office The Home Office, United Kingdom Government, 50 Queen Anne's Gate, London SW1H 9AT Ms. Kagendo Murungi, Program Associate, The International Gay & Lesbian Civil Rights Commission 1360 Mission Street, No. 200, San Francisco, California USA 94103 Mr. Andy Quan, Administrative Coordinator The International Lesbian & Gay Association 81 rue Marche-au-Charbonne, B-1000 Brussels 1, Belgium Mr. Brian Uzell, Managing Editor The Daily Caymanian Compass, POB 1365, George Town, Grand Cayman Mr. Loxley E.M. Banks, Director, Radio Cayman, POB 1110, George Town, Grand Cayman Dr. H. Cummings, President, Radio ICCI-FM International College of the Cayman Islands, Newlands, Grand Cayman Mr. Eric Bergstrom, Director Cayman Islands Department of Tourism POB 67, Tower Building, George Town, Grand Cayman Mr. Bruce Wright, Associate Editor - News & Features The Advocate 6922 Hollywood Blvd., Suite 1000, Los Angeles, California USA 90028 Mr. Rex Wockner, Managing Editor, Outlines, 3059 N. Southport, Chicago, Illinois USA 60656 The International Gay Travel Association POB 4974, Key West, Florida USA 33041 The Caribbean Gay & Lesbian Community of New York, 100 South Oxford Street, Brooklyn, New York USA 11217 --xgbbwispwatmfnbbdcayxabevbyirg--