SVG High Court dismisses case brought by LGBTQ+ men

A case brought by two members of the LGBT community, challenging the buggery and gross indecency laws in St. Vincent and the Grenadines (SVG), was dismissed by the High Court on Friday February, 16, 2024. Justice Esco Henry dismissed the case brought by Javin Johnson and Sean Macleish.

The two men who are Vincentian nationals currently reside overseas.

Johnson and Macleish in 2019 challenged Sections 146 of the Criminal Code 1988 of St. Vincent and the Grenadines, which prohibits anal intercourse, with a sentence of up to 10 years. Section 148 of the same Code, criminalizes public or private same-sex indecent practices. The two gay men sought constitutional redress of the colonial-era laws, both claiming that they were forced to leave the country as they openly identified themselves as gay.

High Court Judge Esco Henry

The two men were advised by Jeremy Johnson QC, and Peter Laverack of 5 Essex Court, England, asserting that these laws of St. Vincent and the Grenadines strip them of their dignity and autonomy.

The men claimed in their Affidavits that they have been exiled from St. Vincent and the Grenadines due to the severity of these draconian laws, and their attendant damaging effects.

In 2017, Javin Johnson, then 22-years-old, successfully claimed asylum in the United Kingdom having established that he could not live as a gay man in SVG.

Sean Macleish, 53, is resident in Chicago, Illinois, but failed in his public advocacy for the removal of these laws so that he can return home with his partner.

In her ruling on Friday morning, Justice Henry held that the men had no legal standing to bring the claims, in light of the fact that they live overseas and have not lived in St Vincent and the Grenadines for some time. The argument of the two men in which they stated that they had been forced to leave SVG because of their sexual orientation was also dismissed.

The High Court upheld the government’s argument that the laws are reasonably required for public health and morality, with Justice Henry stating “… to my mind, the thought of a public health crisis occasioned by an un-stemmed deluge of new HIV cases, is a real and serious concern which reasonably justifies a public health response of the kind embedded in the challenged provisions.”

The High Court judge also pointed out that she recognises that all states do not have the same measure of resources to tackle the myriad of health and other issues confronting them adding, “Without judgment, I take judicial notice of the notoriously known inadequacies of the current health care capabilities in the state amidst the increasing demands on it. I am satisfied that the policy issues which dictate the state’s response are matters best left to the state …”.

She made no finding that the challenged provisions infringe either sections 9 or 10 of the Constitution.

Justice Henry added “I reiterate my misgivings expressed earlier regarding the claimants’ allegations of ill-treatment by others”, and that the claimants have not established their claim that they have been expelled, and had their freedom of movement curtailed or infringed by the challenged provisions or consequences flowing from them.

The judge dismissed Johnson’s and MacLeish’s case respectively in their entirety and ordered them to pay costs of EC$7,500 to the Office of the Attorney General.

The defendants were the Attorney General; The Incorporated Trustees of the Seventh-Day Adventist Church; The Incorporated Trustees of the Evangelical Church of the West Indies; The New Testament Church of God; The Archbishop and Primate (Spiritual Baptist) of St. Vincent and the Grenadines; The Church of God St. Vincent and the Grenadines; The Incorporated Trustees of the New Life Ministries; The Light of Truth Church of God; Kingstown Baptist Church of St. Vincent and the Grenadines; Living Water Ministries International of St. Vincent and the Grenadines; and Hope Evangelism Outreach Ministries.

King’s Counsel Joseph Middleton, along with Peter Laverack, Jomo Thomas and Zita Barnwell appeared for the claimants, while Solicitor-General Karen Duncan, Senior Crown Counsel Cerepha Harper-Joseph, Crown Counsel Franeek Joseph, and Crown Counsel Gabrielle Mayers appeared for the respondents.

Attorneys Mandella Peters and Cheryl Bailey appeared on behalf of the interested parties in Johnson’s case, and Meisha Cruickshank for the interested parties in MacLeish’s claim; while Christopher Hummel Smith and Grahame Baller appeared for the interested party, Vincy Chap.

Along with St. Vincent and the Grenadines, five other English-speaking Caribbean nations have and continue to criminalize gay sex. These are Saint Lucia, the Commonwealth of Dominica, Jamaica, Guyana, and Grenada.

A number of Caribbean nations have recently repealed similar laws, namely Antigua and Barbuda, St. Kitts and Nevis, and Barbados in 2022, while Trinidad and Tobago did so in 2018.

Meanwhile Maria Sjödin, executive director of Outright International, reacting to the High Court ruling, stated: “The rejection of the bid to decriminalize same-sex conduct in Saint Vincent and the Grenadines is a huge disappointment and significant setback for LGBTQ rights in the country. We urge the government to reconsider its position and take meaningful steps towards ensuring the full protection and dignity of all citizens, regardless of their sexual orientation or gender identity.”

Barnwell told SEARCHLIGHT yesterday, Monday February, 19, 2024 that they will be perusing the judgement and will have discussions with the other parties, their clients will be advised and a decision taken if to appeal the ruling.