Authorized Sex: Same-Sex Sexuality and Law in the Caribbean

• Author: Tracy Robinson
• Pages: 3-22

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AUTHORIZED SEX: SAME-SEX SEXUALITY AND LAW IN THE CARIBBEAN

We should be free to define our own identity and concept of life

and self –– including our sexuality –– without the compulsion

of the state.1 When the state insists, through law or otherwise, that we

must be sexed in a specific way — be it heterosexual, monogamous,

nuclear family-oriented, married, or mother — it strikes at the heart of

our dignity as human beings, and treats us as unworthy as persons and as

citizens (Cornell 1995, 10). ‘Erotic autonomy’, as Jacqui Alexander

describes it, is, therefore, a crucial benchmark of our citizenship (Alexander

1997). Autonomy here is not simply ‘the right to occupy an envelope of

space in which a socially detached individual can act freely from interference

by the state’ because, as Albie Sachs J points out, ‘… people live in their

bodies, their communities, their cultures, their places and their times’.2

Alexander’s notion of erotic autonomy strongly suggests that individuals

are entitled to choose lives of intimacy, closeness and community with

others.

Alexander’s (1991, 1994, 1997) seminal critiques of the Trinidad and

Tobago Sexual Offences Act 1986 and The Bahamas Sexual Offences

and Domestic Violence Act 1991 — prominent legislative responses to

local and global violence against women campaigns — demonstrate that

this state initiated woman-protection was fundamentally entangled with

and compromised by the use of the state power to re-authorize

heteropatriarchy, retrench sexual freedom, and outlaw sexual dissidence.

Yasmin Tambiah’s (2002) very fine study of the 1986 Trinidad and Tobago

law reads much more closely the processes of reform that led to the 1986

Act — the progress of debates in and outside Parliament, the shades of

Tracy Robinson

Authorized Sex

Same-Sex Sexuality and Law

in the Caribbean

Chapter 1

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SEXUALITY, SOCIAL EXCLUSION AND HUMAN RIGHTS

opinion and the alterations in the draft legislation — as social discourse

nuanced by place and time and hierarchies and relations of race, gender

and sexuality. While Alexander’s analysis underscores the force of law as

overwhelming and coercive state power, Tambiah plainly shows that law

is deeply embedded in, and connected to, the everyday and social processes

as well. In this way law also influences and shapes sexual decision-making,

expressions, cultures and identities in the Caribbean.

Both Alexander (1991, 1994) and Tambiah (2002) reveal the instability

of law and legal understandings, confirming that contemporary lawmaking

in the Caribbean provides critical insights into Caribbean sexualities.

Tambiah’s appraisal of the making of the Trinidad and Tobago Sexual

Offence Act shows how national and idiosyncratic the lawmaking process

is. Notwithstanding that, some lawmaking projects in the Caribbean can

be understood in regional terms as well. The Trinidad and Tobago Act

was the first modern sexual offences law in the Caribbean in 1986.3 In

1991, The Bahamas enacted new legislation and so did Barbados in 1992.4

Antigua and Barbuda enacted new sexual offences legislation in 1995,

Dominica in 1998, Belize amended the provisions of its criminal code in

1999, and Saint Lucia enacted a new criminal code in 2004.5 Each of

these statutes represents a lawmaking process that is dense and distinctive

and, undeniably, offers its own story. A regional angle provides another

view of the relationship between law and sexuality in the Caribbean.

This essay turns our attention to how the region-wide overhauling of

laws dealing with violence against women and the family over the last 25

years revised the focus and boundaries of authorized sex and sharpened

the notion and danger of the homosexual other. Historically, the criminal

law proscribed unnatural non-procreative sexual behaviour and who was

doing it and with whom was generally irrelevant. The spectre of ‘the

homosexual’ is, legally speaking, a relatively modern one. I look not only

at the modern sexual offences laws but a wave of family law reforms

since 1980 that are giving growing recognition to ‘common law unions’

and even ‘visiting relationships’. This specialized vocabular y of Caribbean

conjugality, valorizing heterosexual reproductive intimacy, becomes a

signifier of Caribbean authenticity. One consequence of this is that the