CCJ Rules that a Man Can Be Charged for Raping Another in Barbados

If a man is raped by another in Barbados, the rapist could be charged for the offense, the Caribbean Court of Justice (CCJ) ruled on Tuesday.  

The case involved Stephen Alleyne, who was charged with the offense on August 2, 2015, but the case was dismissed before evidence was presented in the trial. Magistrate Elwood Watts concluded that the crime of rape did not extend to anal intercourse between men who had sex without consent.  

The CCJ, in a 6-1 ruling, authored by Justice Denys Barrow, found that on a correct interpretation of the Sexual Offences Act, a man can be charged for the rape of another man.

The Court found that the Act uses gender-neutral language to identify both perpetrator and victim and extends the definition of rape to include anal penetration. It also 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.

The CCJ, Barbados’ final and highest court, ruled that retention in the legislation of the offense of buggery did not prevent males from being charged with rape, as the Interpretation Act allows offenders to be charged with either crime once they are not punished twice for the same Act.

The Court noted that it is aware that the issue of the constitutionality of the offense of buggery has been adjudicated in several courts, including some within the Caribbean. However, 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.

In a separate judgment, Justice Peter Jamadar supported the opinion of Justice Barrow and agreed that the Act permits a man to be charged for the rape of another man.

Justice Jamadar found when judges are interpreting legislation, they must also respect the fundamental rights in the Constitution and consider a state’s international treaty commitments. A gender-neutral interpretation of the Act respects the right to protection of the law regardless of sex and the prohibition against discriminatory laws under the Constitution.

It also respects Barbados’ international law commitments to ensure equality before the law regardless of gender and the enjoyment of fundamental rights and freedoms without restrictions based on sex.

In a dissenting judgment, Justice Andrew Burgess found that the Act does not create an offense of rape of a male by another male and would have dismissed the appeal. He considered that only a man could commit rape under the common law and only against a woman.

He found that the Act does not purport to do anything as revolutionary as changing the common law to create an offense of rape by a male of another male. For Parliament to do so, it would have had to express that intention in unambiguous language.

Justice Burgess considered the natural and ordinary meaning and legal meaning of the words used in Section 3 and their context in the Act as a whole and the rules of natural justice.

He found that the words ‘sexual intercourse’ used in creating the statutory offense means penile-vaginal penetration and that section 3(6) of the Act modifies the common law by providing that not only a man can commit the act of rape, but any of the parties to sexual intercourse, a male, or a female, can do so. 

CMC/