JUDGE RULES: AGE OF CONSENT IS 16 FOR ALL
10/04/2011
Submitted by
ILGA-Europe
Original source: http://www.chronicle.gi/headlines_details.php?id=21474
The age of consent for anal sex between homosexual men was lowered from 18 to 16 yesterday, the practical result of a landmark declaration by the Supreme Court.
The judgement in the controversial case also decriminalised anal sex between consenting men and women. Until now, heterosexual buggery was punished under Gibraltar law.
Reacting to the news, the Evangelical Alliance slammed the decision as “a bad day for Christian morality”.
The court had been asked by Chief Minister Peter Caruana and Attorney General Ricky Rhoda to make a declaration on whether Gibraltar law on the age of consent for gay men was constitutional.
At issue was the difference between the age of consent for homosexuals compared to that for lesbian and heterosexual couples.
Until yesterday, males had to wait until they were 18 before they were legally allowed to have anal sex. In contrast, heterosexual and lesbian sex was legal at 16.
In the judgement, Chief Justice Anthony Dudley ruled that the age differential was unconstitutional.
“It is, however, not for this court to take a view as to what the age of consent in Gibraltar should be [as] that is a matter which can only be for the legislature to determine,” he said in a 15-page judgement.
“But at this juncture this court cannot restrict or limit the existing rights of heterosexuals to engage in sexual activity by increasing the age of consent applicable to them and therefore the only option available to me is to rule that for the purposes of the penal provisions found in the [Criminal Offences] Act the age of consent for homosexual anal sex is to be read as 16.”
For now at least, gay males can have legal sex as from the age of 16, the same as their heterosexual peers.
In the longer term, however, the final decision on the age of consent rests with the Gibraltar Government and the community.
The Government has stated in the past that it would hold a referendum on the issue if the court found the age differential to be unconstitutional.
One possibility is to raise the age of consent for everyone, though this would be fraught with problems as it would impact on existing legal rights.
Some ministers within the Government are clear on this point, which was widely debated following a private members bill in Parliament by Justice Minister Daniel Feetham.
Like the judge, Mr Feetham argued that the age differential breached Gibraltar’s Constitution and that the immediate practical effect of acknowledging this would be a lowering of the age of consent for gay men to 16.
RELIGIOUS LASHBACK
Yesterday the Evangelical Alliance, which staunchly opposed equalisation and argued gay sex was unnatural, said it would challenge the decision.
“As a Christian leader and a father, I think this is a bad day for Christian morality,” said Reverend Ewen Maclean, from the Church of Scotland in Gibraltar and a spokesman for the Alliance.
“I think it’s a bad decision for society.”
“It’s obviously a good day for those wanting to commit sex acts with boys of 16 and 17 years old.”
Charles Gomez, the lawyer for the Alliance, said the judgement had implications not just for Gibraltar but across Europe.
“This is the first time ever in Europe that anal and vaginal intercourse have been deemed to be the same,” he told the Chronicle.
“In no other country has this happened before.”
“In terms of jurisprudence, it is a case of major European importance.”
“Given that this is a matter of major European interest and it’s no longer local…we will be looking to see whether an appeal can be mounted.”
“This is a case of pan-European importance.”
In his judgement, Mr Justice Dudley reflected on the religion-based arguments that defended the age differential.
The Gibraltar Government had argued that lowering the age of consent for gay men would be offensive to local faiths and would undermine social cohesion.
Either way, the judge remained unconvinced.
“Those whose religious beliefs lead them to the conclusion that anal sex is morally wrong are wholly entitled to that view and for a measure of respect for that view,” he said.
“There is, however, no basis for the proposition that their rights are affected simply because others do not share that morality and choose to engage in such an act.”
Government lawyers had also planned to use health grounds too but ultimately withdrew that line, a mistake according to Mr Gomez.
GAY REACTION
Local equality rights group GGR, which was represented in court by barrister John Restano and has long campaigned on this issue, welcomed the court’s decision.
“Despite many difficulties over the years, it is good to see the law finally agreeing with our arguments,” said GGR spokesman Charles Trico.
“This is an opportunity for political attitudes to change to this question, and for people to wake up to the fact that Gibraltarians have ‘moved on’ from prejudice towards a more accepting attitude towards minorities.”
“It’s a step closer to equality.”
“We hold no bad feeling or rancour towards any side, and extend a hand of friendship towards anyone who may represent an opposing view.”
“We are also always willing to dialogue with any government or Party whatever their colours.”
STRAIGHT COUPLES TOO
Yesterday’s judgement also declared that criminalising anal sex between consenting heterosexuals was unconsti-tutional and breached the individual’s right to private life.
“It is difficult to think of a more intimate part of an individual’s private life than how he wishes to express his sexuality,” the judge said.
“If properly consenting heterosexuals choose to do so through anal sex that is a matter entirely for them.”
The Gibraltar Government was represented in the case by Ricky Rhoda, QC, and Karina Khubchand. Prosecutor Liam Yeats appeared in court yesterday. Barristers Gillian Guzman and Julian Santos appeared for the British Government, which supported the equalisation of the age of consent. Keith Azopardi and Kenneth Navas appeared for Unite (The Union), which also backed equality for gay men.
The age of consent for anal sex between homosexual men was lowered from 18 to 16 yesterday, the practical result of a landmark declaration by the Supreme Court.
The judgement in the controversial case also decriminalised anal sex between consenting men and women. Until now, heterosexual buggery was punished under Gibraltar law.
Reacting to the news, the Evangelical Alliance slammed the decision as “a bad day for Christian morality”.
The court had been asked by Chief Minister Peter Caruana and Attorney General Ricky Rhoda to make a declaration on whether Gibraltar law on the age of consent for gay men was constitutional.
At issue was the difference between the age of consent for homosexuals compared to that for lesbian and heterosexual couples.
Until yesterday, males had to wait until they were 18 before they were legally allowed to have anal sex. In contrast, heterosexual and lesbian sex was legal at 16.
In the judgement, Chief Justice Anthony Dudley ruled that the age differential was unconstitutional.
“It is, however, not for this court to take a view as to what the age of consent in Gibraltar should be [as] that is a matter which can only be for the legislature to determine,” he said in a 15-page judgement.
“But at this juncture this court cannot restrict or limit the existing rights of heterosexuals to engage in sexual activity by increasing the age of consent applicable to them and therefore the only option available to me is to rule that for the purposes of the penal provisions found in the [Criminal Offences] Act the age of consent for homosexual anal sex is to be read as 16.”
For now at least, gay males can have legal sex as from the age of 16, the same as their heterosexual peers.
In the longer term, however, the final decision on the age of consent rests with the Gibraltar Government and the community.
The Government has stated in the past that it would hold a referendum on the issue if the court found the age differential to be unconstitutional.
One possibility is to raise the age of consent for everyone, though this would be fraught with problems as it would impact on existing legal rights.
Some ministers within the Government are clear on this point, which was widely debated following a private members bill in Parliament by Justice Minister Daniel Feetham.
Like the judge, Mr Feetham argued that the age differential breached Gibraltar’s Constitution and that the immediate practical effect of acknowledging this would be a lowering of the age of consent for gay men to 16.
RELIGIOUS LASHBACK
Yesterday the Evangelical Alliance, which staunchly opposed equalisation and argued gay sex was unnatural, said it would challenge the decision.
“As a Christian leader and a father, I think this is a bad day for Christian morality,” said Reverend Ewen Maclean, from the Church of Scotland in Gibraltar and a spokesman for the Alliance.
“I think it’s a bad decision for society.”
“It’s obviously a good day for those wanting to commit sex acts with boys of 16 and 17 years old.”
Charles Gomez, the lawyer for the Alliance, said the judgement had implications not just for Gibraltar but across Europe.
“This is the first time ever in Europe that anal and vaginal intercourse have been deemed to be the same,” he told the Chronicle.
“In no other country has this happened before.”
“In terms of jurisprudence, it is a case of major European importance.”
“Given that this is a matter of major European interest and it’s no longer local…we will be looking to see whether an appeal can be mounted.”
“This is a case of pan-European importance.”
In his judgement, Mr Justice Dudley reflected on the religion-based arguments that defended the age differential.
The Gibraltar Government had argued that lowering the age of consent for gay men would be offensive to local faiths and would undermine social cohesion.
Either way, the judge remained unconvinced.
“Those whose religious beliefs lead them to the conclusion that anal sex is morally wrong are wholly entitled to that view and for a measure of respect for that view,” he said.
“There is, however, no basis for the proposition that their rights are affected simply because others do not share that morality and choose to engage in such an act.”
Government lawyers had also planned to use health grounds too but ultimately withdrew that line, a mistake according to Mr Gomez.
GAY REACTION
Local equality rights group GGR, which was represented in court by barrister John Restano and has long campaigned on this issue, welcomed the court’s decision.
“Despite many difficulties over the years, it is good to see the law finally agreeing with our arguments,” said GGR spokesman Charles Trico.
“This is an opportunity for political attitudes to change to this question, and for people to wake up to the fact that Gibraltarians have ‘moved on’ from prejudice towards a more accepting attitude towards minorities.”
“It’s a step closer to equality.”
“We hold no bad feeling or rancour towards any side, and extend a hand of friendship towards anyone who may represent an opposing view.”
“We are also always willing to dialogue with any government or Party whatever their colours.”
STRAIGHT COUPLES TOO
Yesterday’s judgement also declared that criminalising anal sex between consenting heterosexuals was unconsti-tutional and breached the individual’s right to private life.
“It is difficult to think of a more intimate part of an individual’s private life than how he wishes to express his sexuality,” the judge said.
“If properly consenting heterosexuals choose to do so through anal sex that is a matter entirely for them.”
The Gibraltar Government was represented in the case by Ricky Rhoda, QC, and Karina Khubchand. Prosecutor Liam Yeats appeared in court yesterday. Barristers Gillian Guzman and Julian Santos appeared for the British Government, which supported the equalisation of the age of consent. Keith Azopardi and Kenneth Navas appeared for Unite (The Union), which also backed equality for gay men.
