Last edited: April 16, 2005

Sex Law Illegal: Lawyer

Fiji Times, April 8, 2005

PROHIBITION of sex between men under the Penal Code may be unconstitutional, a lawyer says.

Referring to the imprisonment of two men who pleaded guilty to unnatural offence and indecent practice between two males in Nadi, Jon Apted said sections 175 and 177 could be argued in a court.

The Citizens Constitutional Forum said offences relating to homosexuals were discriminatory.

“If the men committed a crime by making a pornographic film, so be it, but they should not be jailed for having sex,” CCF director Jone Dakuvula said.

Australian Foreign Affairs Minister Alexander Downer has sent a counsel to visit Thomas McCoskar, 55, who was jailed for having sex with a local man and taking nude pictures in an apartment.

Mr Apted said the CCF had a good point. “Section 28 of the Constitution, which is the supreme law and, therefore, overrides the Penal Code to the extent of any inconsistency, guarantees everyone equal treatment under the law and forbids discrimination by or under law between different groups and individuals on various grounds,” he said.

The court, he said, needed to decide whether sections 175 and 177 of the Penal Code, were unconstitutional discrimination on at least two grounds.

“It can be argued on the ground of gender, because while sex between men is prohibited, sex between women is not prohibited.

“It can be argued because consenting sex between gay men was prohibited but sex between heterosexuals was not.”

He said the sections of the Penal Code offended the right to privacy contained in the Constitution.

Mr Apted said the right protected a person from unreasonable intrusion by the State into his or her private affairs.

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