Men can be raped by men, CCJ rules in Barbados case
Published:Wednesday | February 2, 2022 | 12:09 AM
The Caribbean Court of Justice (CCJ) has ruled that a man can rape another man in Barbados.
The finding from the Caribbean appellate court, which was the view of six members of the seven-judge panel, arose out of an appeal by the Barbados commissioner of police who had challenged a decision by a Bajan magistrate who had dismissed a rape matter, claiming that a man could not rape another.
The court, in allowing the appeal, further ruled that the rape case against Stephen Alleyne, which was initially dismissed, is to be remitted to the magistrate’s court for a preliminary hearing.
In the judgment, which was released on Tuesday, the alleged rape offender was charged with the offence, allegedly committed in August 2015, but was freed before his trial started hearing evidence after the magistrate ruled that the charge of rape did not extend to anal intercourse between men.
The matter was then brought to the Court of Appeal by the commissioner of police, who challenged the magistrate’s decision, but the court upheld the magistrate’s ruling.
Given that Barbados had retained the buggery offence in its Sexual Offence Act, the judges were of the view that the offender should have been charged with buggery since it’s a case of a non-consensual anal penetration.
The commissioner, however, was not daunted and appealed to the CCJ, which, following a hearing on November 9, of last year, found that Barbadian law permits a man to be charged for the rape of another man.
“On a correct interpretation of Section 3 (1) of the act, read with Section 3 (6), a man can be charged for the rape of another man,” said Justice Denys Barrow, who authored the judgment.
“The act uses gender-neutral language to identify both perpetrator and victim and extends the definition of rape to include anal penetration.
“The court found that considering the literal meaning of the words used in the act, their context, and comparable legislation, any person; male or female, can be the offender or victim of rape,” he continued.
The CCJ judge also found that the appeal judges’ reasoning that the man should have been charged with buggery was flawed and that that recommendation would have suggested an acceptance that there could have been consent to anal intercourse when, in law, that is impossible, as anal sex – whether homosexual or heterosexual – is absolutely prohibited in Barbados.
At the same time, he highlighted that the retention of the buggery offence in the legislation did not prevent males from being charged with rape, as the Interpretation Act allows offenders to be charged with either offence, once they are not punished twice for the same act.
Justice Barrow, however, pointed out that the court is aware that the issue of the constitutionality of the offence of buggery has been adjudicated in several courts, including some within the Caribbean.
But the issue did not arise for decision, and in the circumstances, it was the duty of the court to exercise proper judicial restraint and not decide on an issue that was not argued, the judge said.
Justice Barrow’s ruling was fully endorsed by Justice Peter Jamadar, who in a separate judgment agreed that the act permitted a man to be charged for the rape of another man and that the appeal court judges had incorrectly rejected the literal and plain meaning reading of Section 3(i) of the act.
However, their colleague, Justice Andrew Burgess, did not share their views.
The dissenting judge concluded that the act does not create an offence of rape of a male by another male while opining that he would have dismissed the appeal.
He considered that under the common law, only a man could commit rape and only against a woman.
Burgess also considered the natural and ordinary meaning and legal meaning of the words used in the act and found that the words ‘sexual intercourse’ used in creating the statutory offence means penile-vaginal penetration.
The appellant was represented by attorney-at-law Krystal Delaney and Oliver Thomas.
Alleyne was represented by attorney-at-law Arthur Holder.