By *Jeshua Bardoo
Today, we live in a world where many adults participate in consensual sexual activities with others in the confines of a marriage, relationship, or casual sex with different partners, etc. Whatever may be your beliefs and/or moral convictions about consensual sex between adults under any of the aforementioned circumstances, the reality of the world today is that many people are having sex, with who they want to have sex, and how they want to have sex.
Many people, including Vincentians, may be engaging in various forms of sexual intercourse in different positions and maybe even using different sex toys for their pleasure in the privacy of their own home/s. One of the main ways through which a man and a woman may have sex is through vaginal intercourse or sex. However, vaginal intercourse is not the only form of penetrative sexual intercourse that a man and/or woman may engage in. Some men and women may also engage in other forms of sexual intercourse such as anal or oral intercourse and may enjoy doing so with a person of the opposite sex.
Did you know that in St. Vincent and the Grenadines (SVG) under section 146 of the Criminal Code CAP 171, titled “Buggery”, anal sex may be considered an illegal offence, even though it is carried out by two consenting adults of the opposite sex in the privacy of their own home(s)? Let us examine some legal authorities regarding this matter.
Section 146 of SVG’s Criminal Code states that:
“Any person who—
(a) commits buggery with any other person;
(b) commits buggery with an animal; or
(c) permits any person to commit buggery with him or her,
is guilty of an offence and liable to imprisonment for ten years.”
First, I observe that section 146 does not explicitly distinguish between buggery committed in private and buggery committed in public.
Second, I observe that section 146 does not explicitly state whether buggery applies to an act(s) committed by an adult with another adult or whether buggery applies to an act(s) committed by an adult with a minor. It instead uses terms such as “person” and “him or her”.
Third, I observe that concerning section 146 (a) the element of consent regarding someone committing “buggery with any other person” is absent or not explicitly stated.
Fourth, I observe that according to section 146 (a), a person can commit “buggery with any other person”. Therefore, section 146 (a) appears to be gender-neutral.
Fifth, I observe that according to section 146 (b), buggery is not limited to relations between persons, but a person can “commit buggery with an animal”.
Sixth, I observe that based on section 146 (c), a person can permit another person to “commit buggery with him or her”.
Looked at together with section 146 (a), section 146 (c) appears to further support my reasoning under my second point, that when applied to persons the offence of “buggery” is gender-neutral. Based on section 146, it appears that any person who commits buggery is liable and any person who permits a person to “commit buggery with him or her” is also liable for the offence of buggery.
Seventh, based on section 146 (c), it appears that an element of consent may be involved regarding buggery in terms of a person permitting another person to “commit buggery with him or her”. This appears to make consensual buggery where a person permits another person to “commit buggery with him or her” a criminal offence in SVG.
Therefore, from my understanding, “buggery” under SVG’s Criminal Code does not appear to be restricted to only a male engaging in anal sex with another male. Nowhere under section 146 does it explicitly say this.
Moreover, when applied in relation to a person(s), I believe that section 146 may also apply to a male and/or a female, who may be heterosexual or even bisexual, engaging in buggery with another person of the opposite sex or permitting a person of the opposite sex to “commit buggery with him or her”.
However, in reading section 146 of SVG’s Criminal Code, you may be wondering what exactly is buggery?
SVG’s Criminal Code does not explicitly define what buggery is. Sometimes when we are unsure of what the law in SVG is, we may look at the English common law for guidance or interpretation.
Due to SVG’s colonial history, many of SVG’s laws were influenced and/or are based on past British laws. Joseph Gaskins Jr. in “‘Buggery’ and the Commonwealth Caribbean: a comparative examination of the Bahamas, Jamaica, and Trinidad and Tobago” noted that, “Historically, the term ‘buggery’ is considered interchangeable with sodomy”. Over time buggery and/or sodomy under the English common law evolved to be understood as anal sex as supported by the 1718 case of R v. Wiseman and the 1817 case of Rex v. Samuel Jacobs which helped to clarify the law concerning buggery and/or sodomy.
In particular, in the case of R v. Wiseman, there was an “Indictment for sodomy in ano of a girl” and the court “Held it was sodomy both at common and civil law”. Under the English common law, R v. Wiseman, therefore, helped to clarify that sodomy can take place between a male and a female.
During my research, I found the judgment of the 2004 St. Vincent and the Grenadines Court of Appeal case of Marlon Antoine v. The Queen.
In Marlon Antoine v. The Queen, the appellant Antoine, whom the court at the time noted was 18 years old, was convicted after a trial before a judge and jury of the offence of buggery against a 7-year-old girl.
He was sentenced to five years imprisonment.
However, he appealed his conviction and sentence. In the end, the court noted that “In all the circumstances, and given the extent to which inadmissible evidence was admitted and relied on in the summing up in this case, we feel we have no alternative but to allow the appeal, to quash the conviction and to set aside the sentence. However, we are also of the view that in this case there should be a retrial, and we so order”.
Apart from the Court of Appeal’s decision to allow the appeal, quash the conviction, set aside the sentence and order a retrial, it is important to note that Antoine was initially convicted of buggery with a 7-year-old girl. Based on what I read regarding that case, it appears that in SVG, buggery in relation to persons can be committed by a male person on a female person and in SVG an act of buggery in line with the English common law authorities I mentioned earlier, maybe interpreted as comprising of anal sex. The aforementioned authorities may, therefore, help interpret the meaning of buggery under section 146 of SVG’s Criminal Code.
How many adults reading this article have engaged in consensual anal sex before? Do you think that in the 21st Century there should be laws governing what sex acts, such as anal sex, consenting adults, men, and women, choose to engage in with each other in Vincentian society? Should men and women who may be engaged in consensual anal sex in the privacy of their own home(s) live in fear that if the “buggery” law is enforced against them in SVG, they may be subjected to prosecution and/or be liable to imprisonment for 10 years? Are the “buggery” law and its punishment necessary in Vincentian society? In my respectful opinion, regarding the last three questions, my answer is no. Thank you for your time.
* Jeshua Bardoo is a 2012 Vincentian National Exhibition Scholar and a 2019/20 Chevening Scholar studying an LLM International Human Rights Law at Brunel University London. He can be contacted at [email protected].
The views expressed herein are those of the writer and do not necessarily represent the opinions or editorial position of iWitness News. Opinion pieces can be submitted to [email protected].