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Feature - September 1, 2005
Another Aspect of the Sodomy Case
[By: Shobhna Decloitre (Media/Promotions Officer)]
The recent case involving two men convicted under the so called "sodomy law" of Fiji who later appealed and had their charges quashed is making news in the region. While the main focus of the media on this case was on the "sodomy law" aspect, another aspect of this case has almost faded into oblivion - that of trafficking in obscene publications.
This case saw the light of the day when on April 3 rd this year Australian tourist Thomas McCosker lodged a complaint with the police in Nadi that Dhirendra Nandan had stolen $1,500 in Australian currency from him. The police interviewed Nandan and found that he and the tourist had been staying as partners since late March and during this period McCosker took nude pictures of Nandan for publication on the internet. Nandan was to be paid modeling fees upon the publication of these pictures.
The police then questioned McCosker who admitted taking the nude photographs. Upon further questioning both admitted to having consensual oral and anal sex.
The police charged both men under the sodomy law pursuant to Sections 175 (a) and (c) and 177 of the Penal Code. They were convicted and sentenced by the Nadi Magistrate's Court to two years imprisonment. The pair then appealed the sentence and the conviction in the High Court.
The Fiji Human Rights Commission was invited as amicus curiae (friend of the Court) by the Lautoka High Court to address the Court on the issue of the "constitutionality of sections 175 and 177 of the Penal Code of Fiji.
Fiji Human Rights Commission lawyers, Director Dr Shaista Shameem and Legal Officer Deveena Sudhakar-Herman submitted that sections 175 (a) and (c) and 177 became invalid immediately after the 1997 Constitution came into effect. The Commission lawyers submitted that the sections breached the right to privacy and the right to equality before the law as contained in the 1997 Constitution and international human rights law. The Commission also submitted that this was really a case of prosecution for the wrong offence and that the relevant authorities should have considered charging McCosker and Nandan for trafficking in pornography under section 188 of the Penal Code.
Section 175 of the Penal Code states:
"Any person who -
(a) has carnal knowledge of any person against the order of nature; or
(b) has carnal knowledge of an animal; or
(c) permits a male person to have carnal knowledge of him or her against the order of nature, is guilty of a felony, and is liable to imprisonment for fourteen years, with or without corporal punishment."
Section 177 states:
"Any male person, who whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission any such act by any male person with himself or another male person, whether in public or private, is guilty of a felony, and is liable to imprisonment of five years with or without corporal punishment."
In its submission, the Fiji Human Rights Commission said that the offences under section 175 (a) and (c) and 177 of the Penal Code was contrary to the Constitution, the Bill of Rights and other international human rights law and, was invalid. This is because it discriminates against persons of different sexual orientation. Penalising private sex acts between consenting adults also offends against Privacy provisions in the Constitution.
Section 37 (1) of the Constitution provides:
"Every person has the right to personal privacy, including the right to privacy of personal communication."
This section, however, may be subject to limitations prescribed by law that are "reasonable and justifiable in a free and democratic society."
The Commission also submitted that sections 175 (a) and (c) and 177 were contrary to Section 38 (1) of the Constitution which states that "Every person has the right to equality before the law". It was the contention of the Commission that sodomy law of Fiji did not treat everybody as equal before law. This is because the sodomy law as it appears in the Penal Code criminalizes consensual sex acts between males only, whether done in private or public. It does not criminalise lesbian sexual activity. As such, the sodomy law constituted a breach of a person's right to equality before law.
In its submission, the Commission also stated that sections 175 (a) and (c) and 177 of the Penal Code was contrary to Section 38 (2) of the Constitution as it unfairly discriminated on the ground of sexual orientation. All human rights cases on this point internationally, including in South Africa, have come to similar conclusions.
In the judgment Justice Gerard Winter said that he was convinced that the distinctions created by Sections 175 (a) and (c) and 177 of the Penal Code discriminated against homosexuals. He declared that "Section 175 (a) and (c) of the Penal Code are inconsistent with the Constitution and invalid to the extent that this law criminalises acts constituting the private consensual sexual conduct between adults."
Justice Winter also declared that "Section 177 of the Penal Code is inconsistent with the Constitution and invalid to the extent that this law criminalises acts constituting the private consensual sexual conduct of adult males."
However Justice Winter said that the sections of the Penal Code dealing with carnal knowledge against the order of nature and acts of gross indecency would still apply to sexual conduct between adults and adult males where sexual activity occurred in public or without consent or involved parties under the age of 18.
This means that sex with children under the age of 18, male rape or sexual activity that occurred in public do not come under the ambit of the sexual orientation protection under the Constitution and could be prosecuted. The Fiji Human Rights Commission completely agrees with this aspect of the ruling.
In his judgment, Justice Winter also stated that the "case was rushed through the Magistrates Court system with little though for appropriate charges."
The Fiji Human Rights Commission in its submission had urged relevant authorities to charge McCosker and Nandan with trafficking in obscene publications as per section 188 (1) of the Penal Code.
This section states:
(1) Any person who -
.. for the purpose of distribution or public exhibition, makes, produces or has in his possession any one or more obscene. photographs . or any other object tending to corrupt morals is guilty of a misdemeanour, and is liable to imprisonment for two years or to a fine of two hundred dollars.
Trafficking in obscene publications is part of a larger picture of trafficking in persons. This involves the illegal trade in human beings and a modern form of slavery. Many victims of human trafficking are subjected to force, fraud, or coercion for the purpose of sexual exploitation and forced labour.
Trafficking in persons is a gross violation of human rights. It violates the universal human right to life, liberty, and freedom from slavery in all its forms.
McCosker in mitigation in the Magistrates Court had accepted that the photographs he took were intended for sale on the internet. This admission in court should have been the basis of another allegation on the trafficking issue by the Police and the Office of the Director of Public Prosecutions. In cases relating to human rights violations, the Human Rights Act 1999 in section 41 (a) states that in such cases "the court must act according to equity, good conscience and the substantial merits of the case, without regard to technicalities."
The Commission also submitted that "the Police during their investigations focused only on one aspect: that of sexual activity between the appellants. The officers failed to consider section 188 of the Penal Code when they investigated the offenses alleged to have been committed by the Appellants."
Section 188 (1) of the Penal Code does not conflict with human rights provisions of the Constitution because offences committed under this section are considered as serious human rights violations in breach of international human rights law.
The Fiji Human Rights Commission believes that a clear signal should be given to foreign visitors and local people that authorities, including courts in Fiji , do not take kindly to sexual exploitation of Fiji citizens.
Some years ago, a case of sexual exploitation of children in Fiji was in the limelight. The infamous Mark Mutch case involved an expatriate in Fiji who sexually exploited vulnerable children by producing pornographic materials. Mutch was charged with rape and indecent assault on children of a young age. He first assisted them by paying their school fees and also supporting their families financially, thus gaining their trust and confidence.
In the trial during the Mark Mutch case, the judge said "let the message be very clear to people like Mutch that any kind of sexual exploitation of children will not be tolerated in the Republic of the Fiji Islands ." A similar disapproval should attach to commercial sex trafficking generally.
Fiji has ratified the International Convention for the Suppression of the Circulation and Traffic in Obscene Publications. As such, it is obliged to play its role in helping curb the rising problem of trafficking in pornography and sexual exploitation of vulnerable groups of people, especially those who are poor.