Several Commonwealth countries around the world have recently completed reforms of their colonial-era laws to eliminate discrimination against women, children and LGBT people: Mozambique, Angola, Nauru, Palau, Seychelles and Belize come immediately to mind. They have redefined sexual offences to be gender-neutral, to pivot on the notion of consent, and to comply with international human rights norms. Their successes can be an inspiration to other Commonwealth nations that share a similar legal legacy.
Sexual offences laws in the Commonwealth – that is, criminal laws defining things like rape, sexual assault, ages of consent, sexual harassment, sexual abuse/grooming and permissible adult sexual intimacy – were largely written in 19th century Britain and passed around the Empire. Over a century later, many of these laws remain and it is clear that they are not fit for purpose. They fail to protect many people from sexual violence, and they foster and enable discrimination, particularly against women, children, disabled people and people who have a different sexual orientation or gender identity.
A few examples illustrate the problem. Rape provisions only apply to female victims in about half of the Commonwealth, leaving male victims of rape to find recourse in other provisions, often with lower sentences. Rape laws often fail to protect against rape with objects. In over half of the Commonwealth, there are express exemptions for husbands to rape their wives with impunity. Ages of consent for sexual relations and for marriage are lower for females than for males in many Commonwealth countries, legitimising child marriage and putting girls at risk of early pregnancy, health complications and premature withdrawal from education.
“All of these sexual offences laws perpetuate stigma, discrimination, violence, persecution and a lack of access to justice”
In two thirds of Commonwealth countries, “unnatural offences” known as “buggery” or “carnal knowledge against the order of nature”, which originated from Britain’s 1861 Offences Against the Persons Act, and the related offence of “gross indecency”, which originated in its 1885 Criminal Law Amendment Act, still reside in 21st century statute books. These laws disproportionately target and stigmatise consenting adults of the same sex who have a different sexual orientation or gender identity to the majority of people. There is no consideration of consent in these offences (as there is in rape provisions), no reference to the age of the parties, and no reference to whether it is a public or a private act. These laws also push LGBT people underground, which among others reduces their access to critical health services and contributes to the disproportionate prevalence of HIV in the Commonwealth relative to its population.
In addition to the generalised discrimination and calls to violence that these laws foster and enable, there are practical legal implications of having separate legal regimes for cases of non-consensual sexual conduct with a female or with a male: for example, in 80 per cent of the countries that have gender-specific (rather than gender-neutral) rape laws, the punishments are different for rapists depending on whether their victim is male or female. This means certain types of rape are taken less seriously than others, and while recognising that the majority of victims of sexual assault are female, these laws fail to properly vindicate the experiences of all victims of this horrific crime.
All of these sexual offences laws perpetuate stigma, discrimination, violence, persecution and a lack of access to justice. Countries looking to enhance protection for victims of violence, to improve public health outcomes, and to foster more tolerant and equal societies would do well to learn from their Commonwealth peers who have recently taken the journey to reform and brought their sexual offences provisions into the 21st century.
We are delighted, through The Equality & Justice Alliance, to provide technical assistance upon request to Commonwealth governments ready to take the journey.
The views and opinions expressed in this article are those of the author, not those of the Equality & Justice Alliance Consortium or its partners.