Fiji first Pacific Island nation with colonial-era sodomy laws to formally to decriminalize homosexuality
04 March 2010
Marking a significant step towards achieving the country’s universal access goals, Fiji passed a law decriminalizing consensual homosexuality through the Fiji National Crimes Decree on 1 February 2010. With this legislation Fiji becomes the first Pacific Island nation with colonial-era sodomy laws to formally decriminalize sex between men*.
The new Crimes Decree removes all clauses about “sodomy” and “unnatural acts” and uses gender neutral language in the remainder of the sexual offences section.
“We’d like to congratulate the Government of Fiji on taking a bold step by removing the punitive law,” said Stuart Watson, the Pacific Coordinator of UNAIDS.
“This reform is an important milestone towards achieving a rights-respecting legal framework, not only for men who have sex with men but the entire community in Fiji.”
HIV, the law and human rights in the Pacific
In 2007 the UNAIDS Secretariat and UNDP reviewed the legislation of 15 Pacific Island countries relevant to HIV issues, including discrimination, ethics, access to treatment and privacy and confidentiality. The Cook Islands, Federated States of Micronesia, Fiji, Kiribati, Marshall Islands, Nauru, Niue, Palau, Papua New Guinea, Samoa, Solomon Islands, Tokelau, Tonga, Tuvalu and Vanuatu were included in this project.
This reform is an important milestone towards achieving a rights-respecting legal framework, not only for men who have sex with men but the entire community.
Stuart Watson, Pacific Coordinator of UNAIDS
Following this review, UNAIDS’ Pacific office along with the UNDP Pacific Center, and the Regional Rights Resource Team (RRRT) convened a meeting in New Zealand with Attorney Generals and Ministers of Health from the countries. Together with leading international and regional experts they discussed HIV, the law and human rights to relation to the specific national laws in the region that impact the response to HIV. The aim was to better support effective and rights-based legal responses to the epidemic.
The participants reaffirmed the importance of implementing “The Pacific Regional Strategy on HIV/AIDS 2007-2008”, endorsed by Pacific Heads of Governments in Samoa in 2004. This regional strategy is an all-encompassing plan that highlights the importance of human rights in any HIV intervention.
Call for review, reform and enactment of appropriate legislation
The Attorney Generals and Ministers of Health then called for the review, reform and enactment of appropriate legislation that reinforces universal human rights to protect and ensure the dignity of all people affected by HIV; that promotes an integrated response to HIV taking into account the interrelation between sexual and reproductive rights and prevention of HIV; and further protects the rights of people in communities regardless of gender, sexuality, sexual or gender identity, or other defining characteristic.
As a result of this initial UN-sponsored consultation, the Republic of the Fiji Islands requested technical assistance from UNAIDS and WHO to help draft comprehensive rights-based HIV legislation for the country. Parallel to the drafting and community consultation process for the national HIV Decree, and based on the High court’s ruling, the colonial era law criminalizing sex between men was removed. This became law on 1 February 2010 through the Fiji National Crimes Decree.
HIV in the Pacific
The 2009 AIDS Epidemic Update notes that there is generally a very low HIV prevalence in the Pacific compared with other regions. In these small island nations adult HIV prevalence tends to be well below 0.1%. National epidemics are overwhelmingly driven by sexual HIV transmission, although the specific populations most affected vary substantially within the region.
According to the Report of the Commission on AIDS in the Pacific the extent to which HIV is transmitted by sex between men in the Pacific is not known. Since most sex between men in the Pacific is hidden, illegal and denied, it is not addressed appropriately in most national HIV plans.
Behavioural surveillance identifies male-to-male sex among youth in Solomon Islands, Vanuatu and Samoa, as well as police and military in Fiji Islands, STI clinic patients in Fiji Islands and Samoa, and seafarers in Kiribati. Despite a possible link between unprotected sex between men and relatively high rates of HIV infection in Papua New Guinea, Fiji, New Caledonia, French Polynesia and Guam, none of these countries has conducted recent behavioural surveillance surveys or qualitative studies about the characteristics of these men, or initiated targeted campaigns to encourage them to use safer sexual practices.
Major obstacles to making such campaigns effective remain, both with the social stigma and the illegal status of homosexual activity. Not only are men ashamed of or embarrassed about disclosing their sexual activity, they are also deterred from finding out what they need to know to reduce their risk or to buy condoms.
Stuart Watson, believes that legal reform will enable better outreach to these communities.
“The change in law is a huge step towards being able to approach all communities with education programmes and prevention resources. This would enable better access to HIV prevention services for all, reducing HIV and sexually transmitted infection risk,” said Mr Watson.
* Male to male relationships are not legal and are punishable by imprisonment in the following 9 Pacific island nations: Cook Islands, Kiribati, Nauru, Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu.
A further 13 countries and territories in the Pacific do not criminalize men who have sex with men.