The Double Injustice of Buggery Laws

In Barbados, a scout leader is charged with rape of a 12-year-old boy.  Legally speaking, he is charged with buggery* under laws which criminalise anal sex regardless of consent or lack thereof or age of the victim.

Following reports of the case the Chief Scout Commissioner has publicly spoken out against…wait  for it…not child sexual abuse…not all forms of abuse against children…but against homosexuality.

Most of the comments posted  to the Nation’s facebook page clearly recognise what the Chief Scout Commissioner does not, that this case is about the sexual abuse of a child not yet another opportunity for public expression of homophobia. Using the buggery laws to prosecute cases of child sexual abuse contributes to a lack of access to justice for children who are victims of sexual abuse.

One commenter wrote:

so had been it a girl would that have been okay!!! rather than look at it as being homosexual in nature..Look at it as a sexual assault on a minor and deal with accordingly..Rape is not a homosexual dis-eases!!

Another wrote:

This should not be about homosexuality. What consenting adults choose to do in their private lives, is their business, no on else’s. The Boys’ Scout issue is a criminal matter, it is sexual abuse of a minor. There is no such thing as “leader to boy” sexual contact and Dr Taylor should be ashamed to make such asinine comments. The accused should feel the full weight of the law and punished accordingly. Barbadians need to stop conveniently confusing homosexuality with child sexuality abuse.

This case, however, is but one example that points to a much larger problem. Most Caribbean countries prosecute instances of rape of boys by adult men using the laws against buggery. What this does is conflate rape with consensual relations and conflate the sexual abuse of a child with sex between adults. Ultimately it sends the message that it is the homosexual nature of the act that is offensive/egregious/illegal rather than the rape of a child.

The way in which Caribbean children (especially girls) suffer sexual harassment on the street and public transportation, the fact that girls who are victims of sexual abuse often end up themselves being criminalised by being removed from their homes and placed in dangerous state facilities (let us not forget Armadale) or are charged with wandering, demonstrate an overall inadequate and unjust response to child sexual abuse.

When the Scout Commissioner chooses to condemn homosexuality but not child sexual abuse it speaks volumes of the extent to which the severity of child sexual abuse as an infringement on the human rights of children and a denial of their bodily integrity is often diminished. To give but one of countless examples from the Caribbean, in Belize recently an adult man was charged with having sex with a child (girl). He was allowed to walk free when the girls’ father claimed he could not remember his daughter’s age. If as a region we took the sexual abuse of children seriously such a conclusion would be unthinkable.

In Caribbean feminist online community WOMANTRA I raised the following questions:

has any legal analysis been done on why the buggery laws are used in cases of male rape of boys and not child sexual abuse laws? Do these laws [against child sexual abuse] not cover abuse of boys? Do they carry lighter sentences? Are the statutory rape laws gendered and exclude boys?

Young lawyer, Richie Maitland, responded:

Suffice it to say that the buggery law is used because its the easiest to prosecute. They don’t have to prove anything beyond the fact of anal sex; they don’t have to prove non consent. There are other laws they could be prosecuted pursuant to, but it requires the prosecution to prove other elements.

Lawyer-in-traning and Children’s Rights Advocate, Rashad Brathwaite had this to contribute as we sought to write the post collectively:

The Sexual Offences Act in Barbados, unlike much of the Caribbean, sufficiently provides legal recourse for Child Sexual Abuse meted out against boys under 14 to be dealt with under the statutory rape provision without the additional hurdles of proof of non-consent. That is to say, there is no ostensible need to prosecute the abuse  of a 12 year-old boy under the buggery laws in Barbados.

The current state of the law throughout much of the region and the practice in Barbados require urgent reform to treat the abuse of ALL children, as a class of criminality that deserves its own treatment as an act against our collective humanity and deserving the highest levels of opprobium.

In so doing however, the law ought to treat to the sexual abuse of children, in the instant case the abuse of boys as conceptually distinct from the consensual sexual relations between adults.

Ultimately the buggery laws perform a double injustice. They criminalise sexual relations between adults and support a culture of homophobia and stigma.  They also reflect and support an inadequate response to child sexual abuse, leaving many children who are victimised without access to justice and normalising many forms of child sexual abuse.

Edited to add: conflating and confusing rape of boys with homosexuality also serves to silence boys who are raped or sexually abused. Because they fear being stigmatized and labeled, they suffer in silence, do not report the abuse and may even blame themselves for having been abused.

*based on the reports in the Nation News we assume that he has indeed been charged with buggery.

Check out this post entitled Everyday Rape for an earlier discussion on rape and sexual abuse in the region.

 Thanks to Rashad Brathwaite of CODE RED for gender justice! and Grenadian attorney-at-law Richie Maitland, for their contributions to this article.