| For a summary of Dominica’s review at the first cycle please click here. |
19th UPR session
Date of review: 1 May 2014
Date of report adoption: 26 June 2014
Document number: A/HRC/27/9*
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SUMMARY SOGIESC issues during Dominica’s 2nd UPR review |
I. SOGIESC issues/recommendations identified by NGOs
Constitutional and legislative framework
4. Minority Rights Dominica (MiRiDom) and Sexual Rights Initiative (JS1) recommended to Dominica to take all necessary measures to enact new legislation in order to protect and guarantee the enjoyment of fundamental human rights to LGBT people in all the spheres of their lives, according to international standards. AI regretted that during the previous review, Dominica also rejected a recommendation to repeal those legal provisions which criminalize sexual relations between consenting adults of the same sex and decriminalize sexual activities between consenting adults of the same sex. JS1 recommended the government of Dominica to establish anti-discrimination laws and regulations to ensure that LGBT individuals and other populations, such as people living with HIV, enjoy equal rights.
Equality and non-discrimination
8. JS1 noted that although the Constitution expressly proscribes discrimination on the basis of “sex, race, place of origin, political opinions, colour or creed”, Caribbean courts have treated this provision as a closed list and have been reluctant to extend the list in order to recognise other categories of discrimination such as gender, sexual orientation or gender identity. ERI recommended incorporating gender equality issues in the school curriculum and establish and support programmes that train children and young people to analyse and change traditional and cultural stereotypes about gender roles.
9. AI observed that consensual same-sex conduct is criminalized in Dominica. Under Article 16 of the Sexual Offences Act 1998 any person who commits “buggery” is liable to 10 years’ imprisonment. Furthermore, the court may order the convicted person to be admitted to a psychiatric hospital for treatment. At the UPR Working Group in December 2009, the Dominican delegation acknowledged that existing legislation in this regard was “discriminatory” and that there was a “certain element of discrimination in the society towards same sex relationships”. However, at the 13th session of the Human Rights Council in March 2010, Dominica stated that it was not prepared to decriminalize sexual relations between consenting adults of the same sex. In May 2013, the Dominican Prime Minister reiterated the government’s refusal to repeal this legislation and stated that no “compelling argument can be made for it to be repealed”. JS1 recommended the implementation of legislation and policies to address the needs of LGBT people -like a gender policy and an employment policy- and ensure that legal assistance and psychological support are provided to those who have encountered stigma, discrimination and various types of bullying. The Inter-American Commission on Human Rights (IACHR) stated that there are laws criminalizing behaviour based on non‐heterosexual orientation in Dominica.
10. JS1 recommended training law enforcement officers in order to be sensitized to the fact that LGBT people are to be treated with dignity and are due their equal rights. It has recommended undertaking an investigation on the status of the LGBT community in Dominica.
11. AI is also concerned by recent reports of police in Dominica using this legislation to charge individuals with “buggery”, although it appears that in all cases the charges were subsequently dropped. The organization is also concerned by the precedent set by the Eastern Caribbean Court of Appeal in 2009, in the case of Clem Philbert v the State, where a murder conviction was quashed because the victim was considered to have made “unnatural advances” towards the accused leading to a situation of “justifiable homicide”. In a murder trial in September 2012, the Director of Public Prosecution reportedly informed the court that he was discontinuing proceedings against the accused based on the above decision by the Eastern Caribbean Court of Appeal. AI recommended that Dominica acknowledge that LGBT persons are at risk of greater discrimination, prejudice and violence because of the existence of laws criminalizing consensual same-sex activity and to repeal all provisions that criminalize same sex relations, including in the Sexual Offences Act.
Right to privacy, marriage and family life
23. JS1 noted that the Court has discretionary powers to order that a person convicted of buggery be admitted to a psychiatric hospital for treatment. JS1 reported that the 1998 Sexual Offences Act creates an offence of gross indecency (section 14), which, for the first time, criminalises sexual acts between females as well as between males. It noted that same sex sexual acts are punishable by imprisonment under the Sexual Offences Act of Dominica. JS1 recommended the government of Dominica to repeal those legal provisions on sexual offences which criminalize sexual relations between consenting adults of the same sex and decriminalize sexual activities between consenting adults of the same sex immediately.
24. JS1 observed that Dominica does not recognise stable civil unions between same-sex couples, and some laws deprive unmarried same sex couples of same benefits awarded to persons in opposite sex relationships, even if unmarried. This circumstance prevents samesex couples from enjoying a whole range of marriage benefits and rights. Although nothing in the Marriage Act Cap 35:01 specifically denies homosexuals the right to marry, the fact that its sections are phrased in heterosexual terms denies them the benefits. JS1 also recommended the government of Dominica to amend the Marriage Act allowing samesex marriage or domestic partnerships laws in order to protect the rights to marry and to found families for LGBT people.
Freedom of religion or belief, expression, association and peaceful assembly
25. JS1 stated that LGBT human rights defender groups in Dominica are forced to operate underground because of fear that their members will be victimised. Those who are openly gay complain of acts of physical abuse and are often victims of vandalism committed against their positions, as well as being expelled from home. Reports made to the police are not taken seriously and the victims are sometimes ridiculed. Through the systematic encouragement of discrimination on the basis of sexual orientation, the State has deprived individuals of their right to freedom of expression and freedom of association. JS1 recommended the government of Dominica to establish policies and regulations for LGBT human rights defenders and NGOs that protect them from discrimination and persecution.
26. IACHR was disturbed that one of the most serious problems when defending the rights of LGTBI persons is that any sexual orientation other than heterosexual continues to be criminalized as offenses labelled “sodomy” (or “buggery“), “gross indecency”, “unnatural crimes” and so on. The Commission observes that the right of association for purposes of promoting and defending the rights of LGTBI persons are prohibited, the argument being that their organizations and activities are “illegal.” There are laws criminalizing behaviour based on non‐heterosexual orientation in Dominica
Right to health
29. JS1 reported that the State has not implemented any HIV/AIDS prevention programme specifically aimed at men who have sex with men despite the AIDS epidemic plaguing the Caribbean. Discrimination only serves to exclude individuals and promote risky behavior. JS1 recommended the government of Dominica to develop a sexual health programme and ensure the enjoyment of the right to health of LGBT people by enacting adequate legislation and by implementing a national health plan taking care of all the health needs of this community as well as strategies and programs to change health care providers´ attitudes toward men who have sex with men and LGBT patients, especially in public health centres, and to train them in non-discrimination skills.
II. Excerpts on SOGIESC issues from the national report
No report available. The oral statement included the following:
Freedom of association
The Constitution of the Commonwealth of Dominica guarantees the protection to all individuals from discrimination based on their race, place of origin, political opinions, colour, creed, or sex. The Constitution also guarantees the right of Freedom of association to all. The Government of Dominica has never in anyway used fear or intimidation to prevent defenders of any cause from exercising their rights guaranteed under the Constitution. Furthermore, there is no law in the Commonwealth of Dominica that requires individuals to state their sexual preference or conscientious position when associating. The Government of Dominica is not prepared to introduce to the Parliament any legislation to decriminalize sexual relations between adults of the same sex. The Act, however, only criminalizes the act and not what may be considered to be physical manifestations or association. Hence, the claim that members of any group “are forced to operate underground because of fear that their members will be victimized” is unfounded. The Government has not entered into the privacy of adults to determine their sexual activities and as such, the State has not arrested or prosecute anyone under that law. In 2012, the Government of the Commonwealth of Dominica joined Members States of the United Nations to support the Resolution Against Extrajudicial Killings. Extrajudicial killings based on race, ethnicity, religion or sexual orientation does not exist in Dominica. Our support of the resolution was in solidarity to people all over the world who continue to be punished without due process of law. It was in no way an endorsement of same sex relations. Hence, there is not a need for the Government of Dominica to take any follow up measures pursuant to the Resolution.
Support to people with HIVAIDS
Since the establishment of the National HIV/AIDS Prevention Unit in the Ministry of Health in 2003 there have been a number of programs geared at creating greater awareness, care, understanding and tolerance for those whom have been infected and affected by the disease. With assistance from our development partners much has been achieved. This has made it possible to provide drugs and treatment to persons infected and affected. Counseling, drugs and other treatment are provided to all people infected and affected by the disease irrespective of sexual orientation. The challenge of removing the stigma and the taboo associated with the disease has been very difficult the world over. Efforts continue to be made to educate the public
III. Excerpts on SOGIESC issues by UN agencies
Equality and non-discrimination
12. UNESCO encouraged Dominica to intensify its efforts to reduce discrimination based on gender and on sexual orientation and to consider organizing awareness-raising activities and gender-sensitive programmes.
IV. References to SOGIESC issues during the Working Group review
22. The Constitution of Dominica guaranteed all individuals protection from discrimination based on race, place of origin, political opinion, colour, creed or sex and, also, guaranteed the right of freedom of association. The Government had never used fear or intimidation to prevent defenders of any cause from exercising their rights, and there was no law requiring individuals to state their sexual preference or conscientious position when associating. The relevant legislation only criminalized specific sexual acts, and not what might be considered as physical manifestations or association, and nobody had been arrested or prosecuted for such acts. Nevertheless, the Government was not prepared to introduce any legislation to Parliament decriminalizing sexual relations between adults of the same sex.
23. In 2012, the Government of Dominica had supported the United Nations General Assembly resolution on extrajudicial summary or arbitrary executions (resolution 67/168), in solidarity with those who continued to be punished without due process of law. Therefore, there was no need for the Government to take any follow-up measures pursuant to that resolution.
24. Since the establishment of the national HIV/AIDS Prevention Unit in the Ministry of Health in 2003, a number of programmes bad been introduced with a view to creating greater awareness, care, understanding and tolerance for persons affected by AIDS. Counselling, medication and other treatment were provided to all people living with AIDS, irrespective of their sexual orientation. The challenge of removing the stigma and the taboo associated with HIV/AIDS had been extremely difficult, but efforts to educate the public continued.
33. The Netherlands […] expressed concern about the situation of lesbian, gay, bisexual and transgender persons in Dominica, mainly in connection with the unsafe environment for human rights defenders advocating equal rights for members of that group.
38. Slovenia […] encouraged Dominica to continue fighting discrimination and prejudice against lesbian, gay, bisexual, transgender and intersex persons. While noting that the death penalty had not been applied since 1986, it expressed concern that Dominica retained the death penalty.
45. The United States of America […] expressed concern about the criminalization of consensual same-sex activity between adults and noted that lesbian, gay, bisexual and transgender victims of violence and harassment often avoided reporting abuse.
51. Australia remained concerned by the legal provisions criminalizing sexual relations between lesbian, gay, bisexual and transgender persons.
66. Brazil […] noted that the right to life required greater attention and respect for sexual orientation required urgent attention.
77. Germany […] called for the abolition of corporal punishment and noted that lesbian, gay, bisexual, transgender and intersex persons were exposed to prejudice and violence because consensual same-sex activity was criminalized.
81. Ireland […] expressed concern about the criminalization of consensual same-sex activity and of defamation, and expressed regret that recommendations made during the first cycle regarding the Sexual Offences Act had not enjoyed the support of Dominica.
V. Conclusions and/or recommendations
Dominica noted the following recommendations
94.13 Step up the implementation of measures to reduce discrimination based on gender and sexual orientation, including awareness activities (Chile);
94.14 Take the necessary measures to reduce prejudices and discrimination based on the sexual orientation of the person (Argentina);
94.15 Intensify its efforts to reduce discrimination based on gender and sexual orientation (Portugal); 94.16 Make every effort to reduce discrimination based on sexual orientation and consider abolishing all legislation which entails constraints to the realization of the rights of the lesbian, gay, bisexual and transgender population, including laws which criminalize sexual relations between consenting adults of the same sex (Brazil);
94.17 Decriminalize homosexuality and combat discrimination based on sexual orientation or gender identity (France);
94.18 Decriminalize consensual adult same-sex activity by amending article 14 and repealing article 16 of the Sexual Offences Act (Ireland);
94.19 Repeal all provisions that criminalize same sex relations, including in particular article 16 of the Sexual Offences Act (Germany);
94.20 Repeal all provisions that discriminate against persons on the grounds of their sexual orientation or gender identity, including those in the Sexual Offences Act (United Kingdom of Great Britain and Northern Ireland);
94.21 Repeal provisions in national law that criminalize same sex relations, including in the Sexual Offences Act, and take steps to ensure the rights of these persons are protected (Australia);
94.22 Modify existing sections of the Criminal Code that apply to buggery and indecency so that same-sex sexual activity between consenting adults is not criminalized, and adopt legislation that prohibits discrimination on the basis of sexual orientation and gender identity (United States of America); 94.23 Establish anti-discrimination laws and regulations ensuring that lesbian, gay, bisexual and transgender persons and other vulnerable groups enjoy equal treatment (Netherlands);
94.24 Reinforce its anti-discriminatory legal framework in order to provide for a strengthened protection of the rights of the lesbian, gay, bisexual, transgender and intersex community (Italy).
VI. Further information
You will find all documents relating to Dominica’s second review at UPR-Info and OHCHR’s websites.