Case No. UKUT-00092-(IAC)

, their mere existence intensifies a toxic homophobic culture that allows lesbian, gay, bisexual and transgender (LGBT) people to be bullied at school, that fuels their mistrust of police, and allows them to be alienated from – or even abused by – their families. Despite this, each island has a core group of LGBT activists leading the fight for equality . … Like many islands, St. Lucia depends on tourism – its beaches are constantly included in “best honeymoon” articles. But while its tourism minister said in 2015 that the island welcomes visitors from the LGBT community, the country has no plans to change its gross indecency and buggery laws. For the country’s Universal Periodic Review at the UN in 2015, St. Lucia rejected decriminalizing same-sex relationships and creating anti-discrimination laws.” 36.Dr Mahoney’s examination of the criminal statistics from the Central Statistics Office of St Lucia reveal that there has been a steady flow in crimes reported and detected for the offence of buggery. The table prepared by Ms Wilkins includes, inter alia, the following information. For 2017: 24 crimes reported (refers to all crimes reported); 23 accepted (refers to as matters that are reported, investigated and found not to be false) and 7 detected (refers to matters that are investigated and person/s are arrested and charged, or warning given). For 2016: 4 crimes reported, 4 accepted and 2 detected. There is no other information available on the nature of the crimes reported, accepted or detected. It is therefore unclear whether these are limited to buggery as defined by section 133(1)(a) i.e. without the consent of the other person or (b) i.e. merely having sexual intercourse per anus between two consenting males. Mr McVeety submitted that it is curious that given the number of buggery crimes recorded as detected in recent years, Dr Mahoney was unable to give any example of the local press reporting such a crime. When questioned about this, Dr Mahoney emphasised that the absence of such reports is not that surprising given the deeply conservative and religious society, and the wish by the government and the majority of the population to render sexual minorities invisible as well as a desire to avoid adverse publicity for the tourism industry. Dr Mahoney was also asked why United and Strong had not publicised the cases of buggery, she explained that as a group they had to be very careful about what they said. In addition, they may not have even known about them given the lack of publicity and the reluctance of gay men generally in St Lucia to come forward or seek help.37.The Canadian IRB report published on 26 April 2013, addressing the treatment of sexual minorities in St Lucia does not specifically address whether people have been arrested for consensual buggery. However, an older Canadian IRB publication dated 6 December 2005 referred to a police source accepting that the criminal code dealing with buggery had been used in recent years but that most homosexuals are “in the closet” and would not openly come out as being gay. 38.St Lucia has not ratified the International Covenant on Civil and Political Rights, which protects privacy, including private consensual acts between adults. In 2011 and 2015, St Lucia rejected recommendations of the UN Human Rights Council to relax the criminalisation of same-sex behaviour and was the only UN member in the Americas formally to oppose the inclusion of sexual orientation and gender identity in a UN human rights non-discrimination declaration. 39.The US State Department report for 2017 states that there was “widespread societal discrimination” against LGBTI persons and “the few openly LGBTI person faced daily verbal harassment”. Although the academic article draws attention to two individuals who felt safer in the north of St Lucia where they were able to identify as openly gay at times, they felt compelled to conceal their sexual identity at work and when commuting for work purposes had to undergo a form of identity shifting know as ‘passing’. I accept Dr Mahoney’s evidence that whilst there are some openly gay men in St Lucia, including the two questioned for the academic article and an employee at United and Strong, they are very few in number. I accept Dr Mahoney’s evidence that the very few openly gay men in the north of St Lucia must conceal their sexual identity at regular intervals in their daily life, for reasons relating to a fear of persecution. 40.The HRW report describes the seven Eastern Caribbean islands as the most homophobic group in the Caribbean with toxic homophobic cultures. Academic studies referred to by Dr Mahoney also refer to pervasive homophobia expressed within families and in schools, work and in everyday life. The Rights in Exile Programme quoted by Dr Mahoney summarises the daily discrimination that gay people face because of their sexuality. This includes two examples of St Lucians who reported homophobic victimisation but were refused help by the police.41.Widespread negative social attitudes towards homosexuality reflect and are reinforced by the laws criminalising same-sex sexual relations and the attitude of the government: in November 2017, two ministers publicly engaged in homophobic and anti-LGBT rhetoric and the Minister in the Office of the Prime Minister Sarah Flood-Beaubrun said that she opposed changes to Saint Lucia’s anti-LGBT laws, and that same-sex parents were not ‘ideal parents’. This is despite United and Strong having visited her in June 2017 with information about the unacceptable nature of discrimination targeting members of the LGBT community. United and Strong have delivered training to police and government officials but as Dr Mahoney notes, they continue to espouse homophobic ideas. The training provided to the police has been very limited, but this has not prevented LGBT people having suspicions about the organisation’s independence and trustworthiness.42.There are also reports of LGBT tourists experiencing homophobic motivated victimisation in ‘safe’ contexts such as tourist resorts and overseas university campuses. Violence / threats of violence / underreporting 43.There are no statistics available on homophobic violence or victimisation in St Lucia. The official crime data on St Lucia does not specify whether any of the crimes are motivated by homophobia and there is no data at all on the experiences of the victims of crime. Even in countries that criminalise homophobic victimisation, official reports underestimate the extent of such incidents. The official data on St Lucia is unhelpful in demonstrating the true extent of violent crimes against gay people. 44.However, several murders have been reportedly linked to homophobia: United and Strong is quoted in the Canadian IRB report dated 11 June 2009 as stating that the gay community faces “a daily reality of fear, stigma, discrimination and persecution” and that no one was convicted for the murders of two gay men in 2005 and 2006. According to the 2013 Canadian IRB report, United and Strong have reported that: “there are attacks against homosexu als that ‘go unnoticed.’ Abuses have taken place. We have had deaths of gay men that are still unsolved or unresolved…These were openly gay people and these cases were not cases where they were just killed. The killings were brutal, with multiple stab wounds and beatings. There have been gay people who have been beaten in the street. Society targets the highly effeminate guys and the butch looking women. Some have been raped. They get verbally abused on a daily basis. And what works against them is the fear of reporting these incidents. People are internalizing things, instead of seeking help.” 45.In an article addressing the 43rd homicide victim in St Lucia in 2017, Linus Constantine, St Lucia News Online describes the body of 18-year old Marvin Anthony having been found with his throat slit and 56 stab wounds. This article refers to wide speculation that Marvin was gay and his murder looks like a hate crime. The article then states: “This is not uncommon in St Lucia. Over the last 10 years, several members of the LGBT community have met their deaths in similar fashion. There were the de a t hs of Verne Romolus, Germaine Nestor, Marcellus Augustin and the death of Ethelbert ‘Romeo’ Evelyn in Dennery. They were all openly gay and they were all beaten and stabbed to death. ” 46.The appellant explained in his interview that he knew Linus Constantine personally because they worked together, and there were rumours he was gay. 47.The Rights in Exile Programme report dated July 2016, referred to by Dr Mahoney reported that the police do not properly investigate cases of violence against gay people and alleged homophobic murders remain unsolved. In an online article dated 4 June 2018 describing the difficulties of leading a gay life in St Lucia, reference was made to an older US State Department report from 2008 which described at least two cases of violence against homosexuals including one young man having been hung from a tree because he was openly gay. The number of reported murders of those who were openly gay or rumoured to be gay must be seen in the context of St Lucia’s very small population size. The evidence that the police are reluctant to properly investigate crimes of violence against gay men has been denied by the government but is entirely consistent with the homophobia prevalent in St Lucian society. 48.The St Lucian police have become overstretched and have struggled to cope with a general increase in serious crime in the last few years. In the Canadian IRB report dated 20 July 2017, reference has been made to a news website (St Lucia Times 1 July 2017), quoting the National Security Minister as having said that St Lucia “is facing an unprecedented crime wave” with 29 homicides already recorded in 2017. This is linked to a dramatic increase in gang related activity. Various sources quoted in the IRB report describe the police force as plagued by weaknesses in numbers, morale and infrastructure. Given the need to quell gang activities, investigating crimes of violence against gay men, particularly given the legal framework and the prevailing attitudes is most unlikely to be viewed as a priority by the St Lucian police. This lends support to the claim by United and Strong that the police have not adequately investigated murders allegedly motivated by homophobia.49.The 2013 Canadian IRB report also records that several sources stating that advocates for LGBT rights in St Lucia received death threats. This report also quoted a lawyer as saying that the police are very often mentioned as perpetrating acts of violence against sexual minorities and that crimes are therefore not reported because of fear of abuse by the police.50.Dr Mahoney has explained that homophobic victimisation is underreported in St Lucia because of a number of interrelated factors: (a) same sex behaviour is criminalised; (b) homophobic discrimination and victimisation are not recognised as crimes; (c) those who are gay fear prosecution and abuse from the police; (d) United and Strong are in practice limited in what they can do; (e) self-loathing, guilt and ‘internalised homophobia’ deters reporting; (f) few people are willing to be open about their sexuality in such a conservative society. Dr Mahoney refers to two instances where individuals reported homophobic victimisation to the police but were refused help. United and Strong have stated: “ the fact that the law [against same sex sexual activity] is there, there is no formal redress for homosexuals. It basically means that when you go to the police for something, it exposes you. Right now it is the police officers on their own deciding not to enforce this law. Homosexuals ask themselves, what if the police officers decide to [arres t] me because this law exists.” 51.Human rights reports, including the US State Department’s report for 2017, refer to few reports of violent crimes against gay people. I accept Dr Mahoney’s evidence that there is likely to be a significant degree of underreporting of such crimes for a combination of reasons. Her evidence in this regard is consistent with the 2017 US State Department which notes a reluctance to report incidents and a 2016 report from the Rights in Exile Programme, in which it is said that many victims will not report crimes out of the fear that they themselves will be prosecuted, while state agencies in charge of investigations often identify crimes against LGTB persons as crimes of passion or blame the victims’ lifestyle for attacks.52.In terms of reporting incidents to United and Strong, Dr Mahoney explained that many LGBT activists believe that their headquarters was burnt down by homophobic arsonists in 2011, even though the alleged cause was an electrical fault, and its members are known as activists and “self-avowed criminals”. Dr Mahoney is therefore of the view that LGBT individuals in St Lucia are likely to fear being “outed by association” if they align themselves with this organisation. An individual is therefore likely to be inhibited reporting issues to United and Strong. United and Strong leaders have said that LGBT individuals in St Lucia are so much in fear of being found out that they are reluctant to even use the critical prevention, education and health services that they need to protect themselves and others. It also puts them off from testing for sexual infections, even, in some cases if they are suffering from HIV or AIDS symptoms. There is therefore force in Ms Wilkins’s submission to the effect that given that LGBT individuals are reluctant to use ostensibly confidential medical services even when their life might be at risk, they are also plausibly reluctant to report, even anonymously, LGBT hate crimes. F indings on the country background evidence 53.Having conducted a thorough assessment of all the country background evidence, I have reached the following conclusions:(i)The evidence from cogent sources (US State Department and HRW) suggests that the indecency statutes and anal intercourse laws have been rarely enforced. There is an absence of references to any such arrests and prosecutions in the local press but there are more anecdotal references to prosecutions a few years ago. The picture that emerges from the official statistics on the criminal offence of buggery is unclear, but nonetheless concerning. There remains a distinct possibility that some of the crimes of buggery that have been recorded relate to consensual acts. I accept Ms Mahoney’s evidence that it is very challenging to find reliable official data in St Lucia. In any event, the mere fact that criminalisation of same-sex sexual relations is in existence and is known to have been used in the past, adds an additional and aggravating dimension to the prevalent homophobic attitudes in society and the government. However, the evidence is not sufficiently clear to support a finding that openly gay men face prosecution by the state, under sections 132 or 133(2) of the Criminal Code.(ii)Whilst United and Strong has been an advocate of LGBT rights in St Lucia and the region, its role in assisting those who fear or have faced discrimination and violence for reasons relating to their sexuality is limited. United and Strong has publicised the difficulties faced by LGBT people in St Lucia, but its role is limited to more general advocacy. It is not a support agency able to offer meaningful support to LGBT people who have faced discrimination or violence. There is a deep-seated reluctance on the part of gay men to seek help, support or protection either formally or informally in St Lucia. There is no formal complaint structure or mechanism for LGBT people in St Lucia. (iii)There are a very small number of openly gay men in St Lucia. They face daily harassment, verbal taunts and threats. They also face discrimination in obtaining accommodation and in employment. Historically and currently, homophobia and homophobic victimisation are normative experiences for gay men in St Lucia. St Lucia is a deeply conservative, traditional and religious society in which there is widespread disapproval of homosexuality. The fear of being disowned by family, stigmatised by society and “internalised homophobia”, as well as fears of violence and the possibility of criminal prosecution, are all factors contributing to gay men not being openly gay in St Lucia. (iv)Levels of criminality and violence in St Lucia are very high overall. The level of violence against those perceived to be gay is unclear. This is a consequence of the government not recognising sexually motivated victimisation as a crime, the absence of official records and underreporting. There are a variety of sources (for example, United and Strong and St Lucia News Online) providing unverified reports of men perceived to be gay having been killed in particularly violent circumstances for reasons relating to their sexuality. I accept the evidence that over the last 10 years men perceived to be gay have been murdered in particularly violent circumstances, and there is no obvious explanation for this, other than their perceived sexuality. This is very concerning. The reported violent homophobic incidents may not be of sufficient frequency by themselves to amount to a consistent pattern of mistreatment, but the relatively small number must be seen in the light of the very small number of openly gay men and the very small population size. When the violent incidents are combined with the laws criminalising same-sex relations and the discrimination in society, I accept there is a climate of significant fear and anxiety for gay men in St Lucia.(v)The evidence available supports an absence of a sufficiency of protection against violence toward men who are perceived to be gay. The police force is over-stretched, and their record of investigating murders considered to be motivated by homophobia, is poor. There is evidence that victims of threats of violence and violence motivated by homophobia are unwilling to seek protection from the police because they fear further abuse from the police and the state. There is no entity in St Lucia, state or otherwise, in relation to which a complaint can be made for reasons relating to a person’s homosexuality. This must be seen in the context of a society where there is endemic discrimination against openly gay men. (vi)The few openly gay men in St Lucia face a daily diet of verbal abuse, threats of violence, harassment and discrimination in almost every sphere including education, employment, accommodation and within the family. The discrimination faced by gay men can be properly described as frequent and protracted. This discrimination occurs in a country which criminalises same-sex sexual relations and has demonstrated an inability or reluctance to fully investigate serious incidents of violence against men perceived to be gay. (vii)When all the evidence is considered cumulatively, openly gay men face a real risk of persecution on the entire island of St Lucia and the requisite high threshold is met. To use the language of Article 9 of the Qualification Directive, the accumulation of various measures against men perceived to be gay in St Lucia, including violations of their human rights is sufficiently severe to affect openly gay men in a manner that constitutes persecution. Although the general attitudes in the north of the island may be more tolerant than the south, this is entirely relative and there remains a real risk of persecution for openly gay men residing anywhere on the island.(viii)Not all St Lucian gay men are at risk of persecution. The prevailing homophobia is so deep-rooted and pervasive, that there are instances of gay men having “internalised” it. Some St Lucian gay men may live discreetly not because of a fear of persecution but because of social pressure or cultural and religious reasons. It will therefore be necessary to carefully consider in each individual case whether a St Lucian gay man would choose to live discreetly and the reasons for this.