The decision of the Crimes Bill select committee to reinstate the ban on homosexual acts and sodomy is because they are of the view that the country is not ready yet to move with the rest of the world on such matters.
This is contrary to government commitments to international human rights law and its responsiblity and duty to respect, protect and to fulfil human rights – and not to invoke customs tradition or religion to avoid their obligations.
International conventions and declarations are important because they provide specific definitions of what constitutes discrimination and gender-based violence.
In 2008 and 2013 Government implemented non-discriminatory legislation to comply with its obligations under the Convention on the Elimination of all Forms of Discrimination Against Women.
That obligation is to end sex and gender-based discrimination by providing specific legal protection to LGBT people (lesbian, gay and others) in the Employment Relations Act 2012. Under Section 55(e), discrimination on the basis of “sexual preference” has been prohibited in employment since 2013.
And the Cook Islands Disability Act 2008 prohibits discrimination against disabled persons based on their sexual orientation.
The proposed Crimes Act 2020 should equally provide equal protection to all people, regardless of their “sexual preference” and “sexual orientation” who are victims/survivors of gender-based violence.
To address the select committee’s concern on the issue of “indecent act”, they should consider a definition that would cover any “indecent act” on all persons, and should read: “Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the person.”
Gender-based violence is violence that is directed at an individual based on his or her biological sex or gender identity.
It includes physical, sexual, verbal, emotional, and psychological abuse, threats, coercion, and economic or educational deprivation, whether occuring in public or private life.
The “indecent act” of sexual intercourse carried out forcibly or under threat of injury against a person without their consent is a violation of a person’s human right. The elimination of all forms of gender-based violence is recognised as a priority for the international community.
The review of the Cook Islands Crimes Act 1969 is important because it is outdated.
There is the need to reform and update the provisions and review the definitions on sexual offences, incest, rape, and assaults.
Despite the current laws prohibiting these violent assaults and indecent acts, they are prevalent in our community and in families.
The current Act provides legislative protection to a husband who rapes his wife, and should be removed. The outdated provisions of sodomy should be removed given that, that provision has never been enforced.
The majority of people exercise their right to privacy and do not fornicate in public or speak openly about their sexual conduct, activity, orientation or preferences.
Consensual anal or oral sex between adult persons of the age of consent should not be a criminal offence. Heterosexual couples also engage in consensual anal and oral sex.
It appears the Select Committee “want to prohibit that kind of conduct”, the chairman says.
“Ïf you remove those provisions then you more or less encourage it to be in the open because now there is no law that says that kind of conduct is prohibited,” he adds. ”Having that in the law books is probably a deterrent to people to come out in the open and be open about it.”
The laws should not be made to infringe a persons right to privacy and consensual sexual relations and activity between people of the age of consent.
They should be there to prevent violence, protect victims and punish perpetrators.
Legislation that criminalises all forms of violence codifies the rights of all persons to live free of violence and that such behaviours is unacceptable.
Editor, meitaki maata.
I want to explain my position regarding the proposed changing of the 1969 Crimes Act with regard to sodomy.
I was one of the concerned parents that spoke against the changing of the Act at the Matavera public meeting.
My concern is the opening up of the Cook Islands to the gay population from outside of the Cook Islands.
In 2012 it was reported to me that, going on to sun-down, three kids came running up the beach at Titikaveka, all excited calling out, "Mama, mama, e nga tangata papa’a tera i ta’atai e ongiongi ra i to raua apinga."
Editor, you may have heard past reports of men from Australia and New Zealand buying young boys and girls in Thailand for their use.
It is better to hope for the best and plan for the worst, than do nothing.
I would like to encourage the House of Ariki and the Koutu Nui and all our leaders to rise up and speak against this change in the 1969 Act for the sake of our beautiful Cook Islands and the protection of our people.
To our Religious Advisory Council, this is your domain, this is your area of responsibility. Please arise and come forth for our people. The people must hear you speak.
It is for these kinds of matters/issues that you are here today (remember Esther).
Editor, during my years on the Bench as a Justice of the Peace, there was never an infringement of the 1969 Act that came before me.
In the Cook Islands we don't shun our boys and girls. They are us and we are them and we love them. They are important members of our society.
Papa Tui Short