It’s of­fi­cial, sex­u­al ac­tiv­i­ty be­tween con­sent­ing male adults is no longer il­le­gal.

De­liv­er­ing a 14-page de­ci­sion at the Hall of Jus­tice in Port-of-Spain yes­ter­day, High Court Judge Devin­dra Ram­per­sad mod­i­fied sec­tions 13 and 16 of the Sex­u­al Of­fences Act, which had pre­vi­ous­ly crim­i­nalised bug­gery and se­ri­ous in­de­cen­cy even be­tween con­sent­ing adults.

Al­though Ram­per­sad de­clared that the sec­tions were un­con­sti­tu­tion­al in a land­mark rul­ing de­liv­ered in April, he had re­served his de­ci­sion on how the leg­is­la­tion could be amend­ed to give ef­fect to it.

As Sec­tion 13 out­lawed anal in­ter­course be­tween two men and a man and a woman, Ram­per­sad sought to in­tro­duce the el­e­ment of con­sent.

De­scrib­ing the move as the “non-in­tru­sive” op­tion, Ram­per­sad said: “To ac­cede to the de­fen­dant’s propo­si­tion that the pro­vi­sions be struck down would be to go be­yond what this court be­lieves is suf­fi­cient to meet the jus­tice of the case and to do more than is nec­es­sary.”

Ram­per­sad al­so point­ed out that “strik­ing out” was un­nec­es­sary, as no one has been re­cent­ly pros­e­cut­ed for the of­fence. It would have al­so meant that non-con­sen­su­al anal in­ter­course (anal rape) would be le­gal.

Ram­per­sad al­so re­ject­ed that State’s con­tention that in­clud­ing con­sent would le­git­imise an of­fence, which Par­lia­ment con­demned whether it was con­sen­su­al or non­con­sen­su­al.

“Par­lia­ment, hav­ing failed to meet the re­quire­ments of Sec­tion 13 of the Con­sti­tu­tion, the court is sat­is­fied that it can­not be ac­cused of le­git­imis­ing the act but rather strik­ing out that which Par­lia­ment could not law­ful­ly do, hav­ing failed in es­tab­lish­ing the le­git­i­ma­cy of the ex­clu­sion,” Ram­per­sad said.

In deal­ing with Sec­tion 16, Ram­per­sad sim­ply mod­i­fied the de­fences avail­able to per­sons ac­cused of se­ri­ous in­de­cen­cy.

The leg­is­la­tion de­fines the of­fence as “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.” It pro­vid­ed that a hus­band and wife and a con­sent­ing cou­ple (a male and a fe­male) are ex­empt.

Ram­per­sad chose to mod­i­fy the lat­ter ex­emp­tion to make the con­sent­ing cou­ple gen­der neu­tral.

He said: “The re­sult is there­fore that there is no dif­fer­en­ti­a­tion or un­equal treat­ment af­ford­ed to con­sent­ing male per­sons such as the claimant in re­la­tion to what could pre­vi­ous­ly be re­gard­ed as se­ri­ous in­de­cen­cy be­tween males.

“Ob­vi­ous­ly, a corol­lary to this is that con­sent­ing fe­males al­so qual­i­fy for these ex­emp­tions.”

Dur­ing yes­ter­day’s hear­ing, Se­nior Coun­sel Fyard Ho­sein, who is lead­ing the State’s le­gal team, re­quest­ed a 45-day stay of the de­ci­sion to give the State time to pre­pare its ap­peal.

“We would like the high­est court in the land (the Privy Coun­cil) to rule on it,” Ho­sein said, as he re­it­er­at­ed the Gov­ern­ment’s po­si­tion stat­ed by At­tor­ney Gen­er­al Faris Al-Rawi af­ter Ram­per­sad’s ini­tial judg­ment.

The sug­ges­tion was strong­ly op­posed by at­tor­ney Rishi Dass, who is rep­re­sent­ing T&T-born gay rights ac­tivist Ja­son Jones, who brought the nov­el law­suit.

Dass ques­tioned the need for a stay as he not­ed that the State’s po­si­tion was the leg­is­la­tion was not be­ing en­forced. Ram­per­sad agreed.

Jones is al­so be­ing rep­re­sent­ed by Richard Drab­ble, QC, and An­to­nio Em­manuel.

Jones was not present in court for the de­ci­sion but spoke briefly to CNC3 via video con­fer­ence from the Unit­ed King­dom af­ter­wards.

“I am so ab­solute­ly thrilled. I have been re­ceiv­ing mes­sages of con­grat­u­la­tions from around the world,” Jones said.

Jones not­ed that his case was cit­ed by In­dia’s Supreme Court in its land­mark rul­ing strik­ing down that coun­try’s ho­mo­pho­bic laws ear­li­er this month.

“We are the lit­tle is­land that is roar­ing and mak­ing big noise around the world. To­day, the world is again watch­ing us and I am so in­cred­i­bly proud,” Jones said.

While he thanked the lo­cal LGBTQI com­mu­ni­ty for sup­port­ing him, he lament­ed about in­creas­ing ho­mo­pho­bia aris­ing out of his le­gal vic­to­ry.

“As you know, I re­ceived many death threats and many aw­ful things have been said about me by a lot of re­li­gious lead­ers, but the LGBT com­mu­ni­ty has re­al­ly stood by me,” Jones said, as he claimed his le­gal team is al­ready prepar­ing for the first ap­peal in the Court of Ap­peal.

About the case

Last year, Ja­son Jones filed the law­suit in which he chal­lenged the con­sti­tu­tion­al­i­ty of sec­tions 13 and 16 of the Sex­u­al Of­fences Act.

Jones, who is a res­i­dent of the Unit­ed King­dom, claimed that the long-stand­ing leg­is­la­tion con­tra­vened his con­sti­tu­tion­al rights to pri­va­cy and free­dom of thought and ex­pres­sion and was in di­rect con­tra­dic­tion to this coun­try’s in­ter­na­tion­al hu­man rights oblig­a­tions.

In his 58-page judg­ment de­liv­ered on April 12, Ram­per­sad agreed that the leg­is­la­tion con­tra­vened Jones’ rights to pri­va­cy and fam­i­ly life.

Al­though he ac­knowl­edged claims from State at­tor­neys that the leg­is­la­tion has nev­er been en­forced against con­sent­ing adults, Ram­per­sad said that did not mit­i­gate the im­pact on Jones and oth­er ho­mo­sex­u­als who lived in fear of be­ing brand­ed crim­i­nals based on their ex­pres­sion of love and af­fec­tion.

The judge sug­gest­ed that by al­low­ing it to re­main as valid law, Par­lia­ment had helped to cul­ti­vate so­ci­ety’s ho­mo­pho­bic views on the is­sue.

At­tor­ney Gen­er­al Faris Al-Rawi has al­ready stat­ed that Gov­ern­ment in­tends to ap­peal the judg­ment to the coun­try’s high­est ap­pel­late court, the Privy Coun­cil, to re­ceive a com­pre­hen­sive ju­di­cial de­ter­mi­na­tion on the con­tro­ver­sial is­sue.