The Constitutionality of the ‘Homosexual Advance Defence’ in the Commonwealth Caribbean

Abstract

Defences to homicide have often been characterised as “concessions to human frailty”. The challenge for legislators and judges has been to determine the breadth of the permissible concessions and the categories of human frailty that ought to be accommodated by the law. A series of appellate decisions in the Commonwealth Caribbean in cases concerning the killing of gay men have ignited debate about the nature and application of defences to homicide. The main defences accepted by the courts in these decisions were justifiable homicide (a complete defence to murder which results in acquittal on the ground that the homicide was done in service of the state) and provocation (a partial defence to murder which results in a conviction of manslaughter on the ground that the defendant was provoked to lose his or her self-control). In each case, the basis of the defence was founded on a “homosexual advance defence”, that is, an allegation that the defendant killed the victim in response to an unwanted same-sex sexual advance. The success of such homosexual advance defences sits uneasily with the requirements of Commonwealth Caribbean constitutions, which mandate that the constitutions are “supreme law” and that all other laws must be modified, invalidated or abolished if they fall short of constitutional standards. At the centre of the debate over defences to homicides of gay men, particularly in the context of constitutional rights, is the question whether the human frailty accommodated by the law can, or ought, to include fear and stereotypes of same-sex sexuality.

This article presents a critical analysis of the homosexual advance defence in the Commonwealth Caribbean. It is argued, through a thematic presentation of the case law and comparative analysis, that the application of the defences of provocation and justifiable homicide in gay homicide cases is inconsistent with constitutional rights in Commonwealth Caribbean states. It is argued that continued reliance on a homosexual advance defence is inconsistent with the rights to life and equality in Commonwealth Caribbean constitutions.

Keywords: equality; LGBT; Commonwealth Caribbean; constitutional law; right to life; homicide