Pilgrim sides with the CCJ on whether one man can rape another

One of the island’s most respected criminal lawyers has declared his backing for Tuesday’s judgement by the Caribbean Court of Justice (CCJ) which found that a man could be charged with raping another man, contrary to the position of the local court.

This means that because of the judgement of Barbados’ final appellate tribunal, Stephen Alleyne’s 2015 rape case will have to return to the Magistrate’s Court for a preliminary hearing.

In a 6-1 majority verdict delivered by Justice Denys Barrow, the CCJ ruled that “on a correct interpretation of Section 3 (1) of the Sexual Offences Act, a man can be charged for the rape of another man.”

And on Wednesday, Queen’s Counsel Andrew Pilgrim said he agrees with the CCJ’s ruling.

“I see it as a matter of principle, that it is possible for a man to rape a man…because the Sexual Offences Act does not distinguish between genders and rape can become….when a person’s anus is violated or a person’s vagina is violated,” the senior criminal attorney told Barbados TODAY.

Pilgrim explained that such violation can take place whether digitally, by a penis or otherwise.

“I tend to agree with the CCJ,” he added.

The Queen’s Counsel also said he did not attach any special significance to the dissenting view of Barbados-born CCJ judge, Justice Andrew Burgess who said he found that the Act did not create an offence of rape of a male by another male.

“The duty of a system like ours is that everybody doesn’t have to agree. Unfortunately when you get to the apex court, the dissent is neither here nor there. There is nothing you can do about it. If the court doesn’t agree, the majority rules. It is as simple as that.

“If you like Justice Burgess’ reasoning, that is one thing. But is doesn’t matter because now the law is settled. If the apex court later over-rules itself and says it agrees with Justice Burgess’ dissenting judgement, the law would change. But right now the law is settled. That’s it,” Pilgrim declared.

Another prominent attorney and Constitutional law expert, Gregory Nicholls did place some significance on the dissenting judgement.

“The two judgements themselves, the lead decision of the court and the dissenting opinion of the court, raise some very persuasive points that would really take some time to consider what would be the impact and effect of them, as it relates to the law,” Nicholls told Barbados TODAY.

“Obviously, the majority decision is the one that sets what the law is until such time as the court is persuaded to deal with it,” he noted.

Nicholls also noted that the decision of the Barbados Court of Appeal and that of the CCJ followed “naturally” from the perspective that there was no unanimous decision in the Barbados Court of Appeal.

“The CCJ upheld the dissenting position in the Barbados Court of Appeal. Mr Justice Burgess would have upheld the decision of the majority.”

The regional court sitting in Port of Spain ruled that “The Act used gender-neutral language and extends the definition of rape to include anal penetration. The court found that, considering the literal meaning of the words used in the Act, their context and comparable legislation, any person, male or female, can be the offender or victim of rape.”

Before the start of the evidence in his trial in the District ‘B’ Magistrates’ Court, Alleyne had been discharged by the presiding Magistrate after hearing submissions on the charge that alleged he had non-consensual sexual intercourse with another man on August 2, 2015. emmanueljoseph@barbadostoday.bb