Tuesday, May 26, 2009

Gibraltar's Gay age of consent and California ruling on gay marriage on Proposition 8

As you may have read in Gibraltar's local media, a Bill to equalise the age of consent for homosexuals and heterosexuals, by setting this at 16, the age that already applies for heterosexuals and lesbians, was heard in the Gibraltar Parliament recently.

Daniel Feetham, the Minister for Justice, took the unusual step of bringing a motion asking for leave to introduce a Private Members’ Bill for an Act to amend the Criminal Offences Act.

There is overwhelming international legal and local constitutional pressure to implement equalisation although the issue is untested in the local courts.

The Equality Rights Group GGR welcomed the Bill:

"After nine years of GGR raising the public debate on sexual minorities in Gibraltar, we are pleased to see that Parliament has finally considered the question of age of consent inequality currently in force."

I was pleased to see the Bill has been passed to proceed to a formal reading of a Bill in Parliament.

As GGR Chairman Felix Alvarez recently said:

"Whilst Government has failed to introduce the debate as a public Bill on what, after all, is a public issue and instead, preferred to rely on one of its own members in a purely private capacity, it has, nonetheless passed the motion to proceed on the formal reading of a Bill to equalise the legislation. This, in effect, falls short of Government’s legal requirement to comply with what is unarguably an international law obligation and not, as they have argued, a mere question of ‘conscience'."

As Brian Reyes concluded when referring to a recent 'Child Porn' case, "Time for the legislators to get moving on this…swiftly, methinks", there's much to be done to bring legislation in these and other matters concerning human rights and anti-discrimination in Gibraltar, to international and European law standards!

Gay age of consent: Is 16 too young?

Back in March this year, Peter Caruana, Gibraltar's Chief Minister indicated that the Government was likely to be obliged to make the age of consent the same for heterosexuals and gays, although he expressed his own moral disagreement with this, saying that "young people have enough pressure on them at that stage of life". He did however concede that the 'leveling' is likely to happen. The 'great unspoken', as the Chronicle recently described this, is that it is expected that Peter Caruana, a devout Catholic who nonetheless backed the original decriminalisation of gay sex, may refrain from backing the substantive bill, which includes this issue of 'age of consent' when it goes before Parliament.

There's no question that this is a difficult moral issue and it's no surprise that emotions have been running high in Gibraltar over the issue of age of consent... and not just for gay males!

The Gibraltar Women’s Association have been arguing that the age of consent for sex should be 18 for men and women.

Back in January this year, responding to correspondence in the Gibraltar Chronicle the GWA were critical of the GGR lobbying of the Council of Europe. In a statement the GWA said they "wholeheartedly" agreed with a letter to the newspaper from Andrew Mifsud (10th January 2008 in the Gibraltar Chronicle).

"Mr Mifsud may be ‘bewildered’ but we are absolutely ‘flabbergasted’.

The Gibraltar Women’s Association is not a minority group as is the GGR and Mr Alvarez has no right to fight for rights which the majority of women in Gibraltar (including lesbians) have not asked for or want.

If a heterosexual couple consent to buggery it is their own decision and nobody needs to know!"

The GWA added that the fact that this is illegal "protects women who do not consent to anal sex"! Hmmm... Well, I'm no lawyer, but I would have thought, surely that issue is adequately covered in rape and sexual abuse laws in Gibraltar... and bears very little on the question of age of consent for gays?

Referring to Mr Alvarez the GWA further stated that "in any case, it is already legal between consenting males over the age of 18 so we fail to see what his problem is and why he feels the need to involve the Council of Europe in this matter".

I would respectfully suggest to the ladies of the GWA, that Mr Alvarez's 'problem' is probably not far removed from the same concerns on Mr Feetham's mind. In a recent interview with Paco Oliva, Daniel Feetham, Gibraltar's Minister for Justice, was asked, "why couldn’t you have raised the age of consent to 18"?

This question for me is the critical question in this entire debate.

I believe that when people who support the principle of equalisation come to consider the consequences they will rapidly come to the conclusion that it would be very much harder to obtain a social consensus to increase the age of consent to 18. For a start it would also take Gibraltar in the opposite direction of travel to the rest of Europe in respect of these matters. Strongly Catholic countries have equal ages of consent below 16. That includes Spain at 13, Italy at 14, France at 15 and Portugal at 16. Of the Council of Europe members only Turkey, the Ukraine and with some exceptions Malta have ages of consent set at 18.

But consider the practical and legal difficulties. The age of consent for heterosexual and lesbians has been 16 since at least 1888 when an Ordinance was passed to protect “women and girls” and the legal age at which people can get married in Gibraltar has been 16 for decades. Lets be clear about it, the main motivating factor behind an increase of the age of consent to 18 would be in order to avoid lowering the age of consent for homosexual intercourse. Is that right? Consider, for example, the position of a 17-year old in a steady relationship who now found that his or her ability to have heterosexual intercourse had been curtailed in order to prevent the lowering of the age of homosexual intercourse.

It would also be necessary to raise the age at which people can get legally married. Consider also the bizarre situation that would arise if a 16 or 17 year old married girl were faced with the situation that the age of consent is raised to 18 or the case of young married couple (possibly a serviceman married to a 17 year old girl) coming to Gibraltar from Great Britain where the age of consent is 16. What should we do? Require them to refrain from having sexual intercourse whilst in Gibraltar, or would there be a two-tier system of a different sort whereby they would be exempt from prosecution whilst locals would be liable to prosecution for having sexual intercourse! Do we carve out exceptions for people who are married? What about those who are not married whose relationships are being interfered with retrospectively?

In all these cases people could complain that, under Article 8 of the Convention, their private life had been interfered with, and that raising the age of consent was neither proportionate nor necessary for the protection of their health or morals."

It is quite clear, despite the somewhat over alarmist worries expressed, with good intent I'm sure, by the GWA, that the equalisation of age of consent is the right thing to do.... and the sooner Mr Feetham's motion is passed to law, the better.

Age of Consent - Facebook Group

A Facebook Group has been set up in the hope of obtaining the views of young people in Gibraltar. This is what it asks:

The Women's Association of Gibraltar is asking for the age of sexual consent to be increased from 16 to 18. This means anyone under 18 who has sex will come under the criminal law.

Do you agree? Will this criminalise a lot of young people? Will it lead to increasing shame and a greater generational gap between children and parents?

The Gibraltar Chronicle has carried a lot of criticism of people who want the age of consent between gays and straights equalised. The only voice that is missing is that of the young people themselves. So - should young Gibraltarians make their thoughts heard in the media?

You can visit the Facebook Group here: Age of Consent - Gibraltar

Proposition 8 - Restrictions On Same Sex Marriage

From one Chronicle to another... tonight, the San Francisco Chronicle is reporting the state Supreme Court ruling today, that California voters legally outlawed same-sex marriage when they approved the Proposition 8 amendment in November, but the constitutional amendment did not dissolve the union of 18,000 gay and lesbian couples who wed before the measure took effect.

The 6-1 decision was issued by the same court that declared a year ago that a state law defining marriage as the union of a man and a woman violated the right to choose one's spouse and discriminated on the basis of sexual orientation.

Prop. 8 undid that ruling. The author of last year's 4-3 decision, Chief Justice Ronald George, said today that the voters were within their rights to approve a constitutional amendment redefining marriage to include only male-female couples.

I'm sad to hear this. I agree with Ellen DeGeneres the twelve-time Emmy Award-winning American stand-up comedienne, television hostess and Hollywood actress, who has strongly campaigned against the Proposition 8 amendment ever since it was proposed. She was "saddened" by the passing of the original ban on same-sex marriage in California.

The talk show host, who is married to Hollywood actress Portia Rossi, recently said that by electing Obama America has taken a giant step forward toward equality but with the Proposition 8 amendment "took a giant step" backwards. She recently quoted Keith Olbermann on msnbc.com, who she thought was "very eloquent and brilliant when he said:

"To me this vote is horrible. Horrible. Because this isn't about yelling, and this isn't about politics. This is about the human heart, and if that sounds corny, so be it."

Ellen added:

"What he said is all that needs to be said. It really is just about following your heart and people paying attention to what the right thing is!

This (the movement) needs for people to not be ignorant. It needs for people to open their minds and understand that it (same sex marriage) is a fundamental right: people need to be allowed to love who they want to love and marry who they want to marry. I don't know what it's going to take, but I have faith that people will realize that this is wrong."

Today's ruling... is a sad indictment on that hope.. and of love and people's humanity. It's about the right to love who you want and to marry whoever you happen to love!

At least, the the ruling does not affect the 18,000 who did manage to get married, before this amendment came into effect!

In concluding this blog post... just for the record... (and in no way apologetically) I will add that I am not gay! I'm just a simple male heterosexual who cares for and loves his fellow man... male, female, gay, lesbian or whatever they happen to choose as their sexual preference!