The Attorney General v Jason Jones et Al

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Bereaux J.A.,Pemberton, J.A.,Kokaram, J.A.
• Judgment Date: 25 March 2025
• Neutral Citation: TT 2025 CA 15
• Year: 2025
• Docket Number: Suit No.: Civil Appeal No. P337 of 2018

The Attorney General

and

Jason Jones et al

Bereaux, J.A.; Pemberton, J.A.; Kokaram, J.A.

Suit No.: Civil Appeal No. P337 of 2018;

Court of Appeal

Appearances:

Mr. F. Hosein SC and Ms. K. Prosper instructed by Mr. V. Jardine and Ms. A. Murray, Attorneys-at-law for the Appellant.

Mr. R. Drabble KC, Mr. R. Dass SC and Mr. A. Emmanuel instructed by Ms. M Narinesingh, Attorneys-at-law for the Respondent

Ms. L. Wong, Attorney-at-law for the First Interested Party

Mr. J. Jeremie SC instructed by Ms. A. Kallap, Attorneys-at-law for the Second Interested Party

Bereaux J.A.

INTRODUCTION

1 The issue in this appeal is whether sections 13 and 16 of the Sexual Offences Act Chap. 11:28 (“the Act”) are unconstitutional. The relevant constitutional provisions are sections 4, 5 and 6 of the Constitution of Trinidad and Tobago (“the Constitution”). The respondent alleges that sections 13 and 16 of the Act infringe his rights under sections 4 and 5 of the Constitution, to wit:

He alleges as well they are not reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual.

• (i) his right to respect for his private and family life;

• (ii) his right to liberty and security of the person;

• (iii) his right to equality before the law and the protection of the law;

• (iv) his right to freedoms of thought and expression; and

• (v) his right not to be subjected to cruel and unusual treatment or punishment.

2 The primary issue is whether the two sections are existing law as that term is defined by section 6(1) of the Constitution. If they are not existing law, the second question is whether they fall within the meaning of section 6(2) of the Constitution. The question whether these two sections of the Act are not reasonably justifiable in a society which has a proper respect for the rights and freedoms of the individual arises on the respondent's pleaded case and also as a section 6(2) consideration.

3 It is convenient to refer to sections 13 and 16 of the Act now. I shall also include sections 14 and 15 because they are relevant to whether the provisions of the Offences Against the Person Act, 1925, were “re-enacted” by the Act as opposed to “replaced”:

13. (1) A person who commits the offence of buggery is liable on conviction to imprisonment for 25 years.

(2) In this section “buggery” means sexual intercourse per anum by a male person with a male person or by a male person with a female person.

14. (1) A person who commits bestiality is guilty of an offence and is liable on conviction to imprisonment for 15 years.

(2) In this section, “bestiality” means sexual intercourse per anum or per vaginam by a male or female person with an animal.

15. (1) A person who indecently assaults another is guilty of an offence and is liable on conviction to imprisonment for five years for a first offence and to imprisonment for 10 years for a subsequent offence.

16. (1) A person who commits an act of serious indecency on or towards another is liable on conviction to imprisonment for five years.

(2) Subsection (1) does not apply to an act of serious indecency committed in private between—

• (a) a husband and his wife;

• (b) a male person and a female person, each of whom is 16 years of age or more, both of whom consent to the commission of the act; or

• (c) persons to whom section 20(1) and (2) and (3) of the Children Act apply.

(3) An act of “serious indecency” is an act, other than sexual intercourse (whether natural or unnatural), by a person involving the use of the genital organ for the purpose of arousing or gratifying sexual desire.

4 Section 13 prohibits buggery between consenting adults, whether male on male, or male on female. Put bluntly, it prohibits anal sex of any kind and anywhere; whether in the privacy of the home or in public. Consent does not absolve either party. It matters not that the couple is male/male or male/female.

5 Section 16 prohibits sex acts, other than sexual intercourse, which use the genital organ to arouse or gratify sexual desire. It describes such an act as an act of serious indecency.

6 By a process of deduction, section 16 is discriminatory. Section 16(1) creates the offences and section 16(2) then provides exceptions for sex acts performed in private between husband and wife and in private between a consenting male and a consenting female, each over the age of 16 years. Consequently, Section 16 prohibits same sex acts of serious indecency; that is to say, serious indecency between men or between women. Public acts of serious indecency, whether same sex or heterosexual, are also offences.

THE CLAIM IN SUMMARY

7 The respondent, Jason Jones, is an openly homosexual man (I shall refer to him as “the respondent” or “Mr. Jones”). Mr. Jones sought a declaration that sections 13 and 16 of the Act are unconstitutional. He sought, in the alternative, a declaration that sections 13 and 16 infringe his rights under section 4(a), (b), (c) and (i), that is to say:

• (i) his right to liberty and security of the person and the right not to be deprived thereof except by due process of law;

• (ii) his right to equality before the law and the protection of the law;

• (iii) his right to respect for his private and family life; and

• (iv) his right to freedom of thought and expression.

8 He also alleges a breach of section 5(2)(b) of the Constitution. Section 5(2)(b) enjoins Parliament from imposing or authorising the imposition of cruel and unusual treatment or punishment. To the extent that the Act does impose or authorise such treatment, it is a breach of his right to security of the person of which section 5(2)(b) is a further and better particularisation.

9 There were two interested parties. The Equal Opportunity Commission appeared but made no submissions. The Trinidad and Tobago Council of Evangelical Churches intervened to oppose the claim. Mr. Jeremie SC, before us, adopted Mr. Hosein's submissions.

GROUNDS

10 In summary, the grounds of the claim are:

The truth of the matter, however, is that in regard to the contentions at subparagraph (ix) only one of those allegations is correct. Section 16 includes in the offence of serious indecency, serious indecency between women. The offence of buggery with a woman has been in existence since 1925. Moreover, the offence of serious indecency is no different from gross indecency except that the offence is now defined and the word “serious” is substituted for “gross”.

• i. The mere existence of sections 13 and 16 of the Act infringes upon the respondent's rights because they have the effect of criminalising same sex intimacy between consenting adults with severe penalties;

• ii. Those sections constitute an unjustified interference with his private life. He has no freedom of choice in matters which amount to his expression and exercise of personal sexuality, and he cannot freely and in the privacy of his own home engage in sexual intimacy with other consenting adults;

• iii. Sections 13 and 16 affect the respondent's private life by forcing him to either respect the law and refrain from private consensual same sex activity or to commit the prohibited acts and risk criminal prosecution. The effect is that in the eyes of the legal system, he is a criminal, subjecting him to widespread societal prejudice, persecution, marginalisation and stigma;

• iv. Although sections 13 and 16 embrace acts of both males and females, it disproportionally impacts homosexual men as primary targets of stigmatisation;

• v. Sections 13 and 16 breach the respondent's rights to respect for his family life since they effectively deny the respondent the right to form a family unit because once an emotional attachment is formed, it cannot be acted upon sexually without the fear of arrest, prosecution and conviction. Additionally, due to being viewed as a criminal by the State, society and his family, he cannot perpetuate extended relationships with his family residing in Trinidad;

• vi. Sections 13 and 16 breach the respondent's right to equality before the law because they unfairly discriminate against him solely and expressly on the basis of his gender and sexual orientation. Section 16 punishes homosexual but not heterosexual adults for sexual acts committed consensually. Section 13 is unequally applied and is primarily aimed at prosecutions against homosexuals;

  In my judgment, this latter allegation is patently untrue. It is matter of public notoriety that no-one has been charged or punished in Trinidad and Tobago for engaging in consensual anal sex in the privacy of his or her home. The truth is that Section 13 is not applied at all.

• vii. Sections 13 and 16 breach the respondent's right to life, liberty and security of the person and the right to not be deprived thereof except by due process of law because Mr. Jones has no personal autonomy to make decisions which directly affect his choice of whether to enter into a relationship and whether to engage in sexual conduct. The discriminatory elements which constitute the offences under both sections cannot be “due process of law”;

• viii. The penalties imposed by sections 13 and 16 amount to cruel and unusual punishment because they impose severe penalties on the respondent for his form of sexual expression. There is a disproportionate link between the conduct and the sanctions, which are not reasonably justifiable or proportionate;

• ix. The Act repeals and replaces the old law and is not an existing law within the scope of section 6 of the Constitution. It replaces the existing law rather than modifying it. The provisions of sections 13 and 16 derogate from the protected rights in a different manner and to a greater extent that the existing law by increasing the penalties, creating the offence of buggery involving a woman, creating a new offence of serious indecency and creating an offence between women.

EVIDENCE

11 The issue for...