LGBT rights in the Cook Islands

LGBT rights in the Cook Islands
Same-sex sexual intercourse legal status Male illegal
Female legal
Penalty:
 Up to 14 years imprisonment (not enforced)
Discrimination protections Protections in employment; sexual orientation only (see below)
Family rights
Recognition of
relationships		 No recognition of same-sex couples
Restrictions:
 Local law limits marriage to one man and one woman

Lesbian, gay, bisexual, and transgender (LGBT) persons in the Cook Islands may face legal challenges not experienced by non-LGBT residents. Homosexuality is illegal for men in the Cook Islands, though female homosexual acts are legal.[1] Same-sex marriage is outlawed. Nevertheless, LGBT people do enjoy some limited legal protections, as employment discrimination on the basis of sexual orientation has been banned since 2013.

Homosexuality and transgender people have been part of Cook Islander culture for centuries. Historically, transgender people (nowadays called akava'ine; literally to behave like a woman) were seen as an important part of the family and the local tribe. The arrival of the missionaries quickly changed societal acceptance, and the first anti-gay laws in the Cook Islands were enacted. Nowadays, in part due to the Cook Islands' close relationship to New Zealand, attitudes towards members of the LGBT community are becoming more accepting, though there are still reports of discrimination.[2]

The only LGBT advocacy group in the Cook Islands is the Te Tiare Association. The group officially launched in June 2008, and encourages debates on the issue and has organised events with the aim of raising awareness of the lives of LGBT people.

History

The Cook Islands, much like the rest of Polynesia, used to be very tolerant of same-sex relationships and transgender people before the arrival of Christianity.[3]

Laws regarding same-sex sexual activity

Crimes Act 1969

Male homosexuality is illegal in the Cook Islands. Consensual male sodomy is punishable by up to seven years imprisonment,[4] while indecency between males is punishable by up to five years imprisonment.[5] The law was inherited by the former British Empire. Prosecutions have been rare, however.[6]

Section 154. Indecency between males

(1) Every one is liable to imprisonment for a term not exceeding five years who, being a male,
(a) Indecently assaults any other male; or
(b) Does any indecent act with or upon any other male; or
(c) Induces or permits any other male to do any indecent act with or upon him.
(2) No boy under the age of fifteen years shall be charged with committing or being a party to an offence against paragraph (b) or paragraph (c) of subsection (1) of this section, unless the other male was under the age of twenty-one years.
(3) It is not defence to a charge under this section that the other party consented.

Section 155. Sodomy

(1) Every one who commits sodomy is liable
(a) Where the act of sodomy is committed on a female, to imprisonment for a term not exceeding fourteen years;
(b) Where the act of sodomy is committed on a male, and at the time of the act that male is under the age of fifteen years and the offender is of over the age of twenty-one years, to imprisonment for a term not exceeding fourteen years;
(c) In any other case, to imprisonment for a term not exceeding seven years.
(2) This offence is complete upon penetration.
(3) Where sodomy is committed on any person under the age of fifteen years he shall not be charged with being a party to that offence, but he may be charged with being a party to an offence against section 154 of this Act in say case to which that section is applicable.
(4) It is no defence to a charge under this section that the other party consented.

Section 159. Keeping Place of resort for homosexual acts

Every one is liable to imprisonment for a term not exceeding ten years who-
(a) Keeps or manages, or acts or assists in the management of, say premises used as a place of resort for the commission of indecent acts between males; or
(b) Being the tenant, lessee, or occupier of any promises, knowingly permits the premises or any part thereof to be used as a place of resort for the commission of indecent acts between males; or
(c) Being the lessor or landlord of any premises, or the agent of the lessor or landlord, lets the premises or any part thereof with the knowledge that the premises are to be used as a place of resort for the commission of indecent acts between males, or that dome part thereof is to be so used, or is wilfully a party to the continued use of the premises or any part thereof as a place of resort for the commission of such acts as aforesaid.

Sections 152 and 153 of the Criminal Code set the age of consent for vaginal intercourse at 16. Lesbian sex is not mentioned at all in local laws, as was the case in the laws of the former British Empire.

Crimes Bill 2017

The draft Crimes Bill 2017, announced in August 2017, would decriminalise same-sex sexual activity between men.[7][8][9] Public submissions to the parliamentary committee examining the bill began on 9 August.[10][11] Due to the June 2018 general elections, public consultations on the bill have been put on hold.[12]

The bill has received the support of Marie Pa Ariki, an influential tribal chief, who has called the anti-gay law "unfair".[13]

Recognition of same-sex relationships

Same-sex marriage was outlawed by the Marriage Amendment Act 2000.[14] The law was clarified in 2007 to state that "no person shall be permitted to marry another person who is of the same gender as him or herself,"[15] and to legislatively define the gender of transsexuals. On 28 April 2013, Prime Minister Henry Puna expressed his personal opposition to the legalisation of same-sex marriage.[16][17]

Civil unions are not recognized either (though both civil marriage and civil unions by same-sex couples are recognized and performed in New Zealand).[18][19]

Discrimination protections

Discrimination on the basis of "sexual preference" is prohibited in employment, according to Section 55(e) of the Employment Relations Act 2012, which entered into force on 1 July 2013.[20]

Section 10(g) of the Cook Islands Disability Act 2008 prohibits discrimination against disabled persons based on their sexual orientation.[21]

Living conditions

The Cook Islands Christian Church is the largest religion on the islands, with more than half of the population claiming an affiliation to it. The Congregationalist church believes that homosexuality and cross-dressing are signs of immorality and this impacts both public attitudes as well as government policy. The Cook Islands LGBT community feels the need to be discreet and travel advisories also urge visitors to be discreet and not to engage in public displays of affection.[22]

Summary table

Same-sex sexual activity legal (For males; legalisation proposed)/ (For females)
Equal age of consent (For males; proposed)/ (For females)
Anti-discrimination laws in employment only (Since 2013)
Anti-discrimination laws in the provision of goods and services
Anti-discrimination laws in all other areas (Incl. indirect discrimination, hate speech)
Same-sex marriages
Recognition of same-sex couples
Stepchild adoption by same-sex couples
Joint adoption by same-sex couples
Gays, lesbians and bisexuals allowed to serve openly in the military (New Zealand's responsibility)
Right to change legal gender
Access to IVF for lesbians
Commercial surrogacy for gay male couples
MSMs allowed to donate blood

See also

References

  1. ↑ "Homosexuality World legal wrap up survey" (PDF). International Lesbian and Gay Association. 2006. Archived from the original (PDF) on 10 March 2012. Retrieved 2009-07-14.
  2. ↑ Pathways to Lesbian, Gay, Bi-sexual, Transgender (LGBT) Rights in the Cook Islands
  3. ↑ Polynesia's ancient same-sex acceptance
  4. ↑ Crimes Act 1969, section 155.
  5. ↑ Crimes Act 1969, section 154.
  6. ↑ Cooks bill puts spotlight on Pacific's anti-gay laws
  7. ↑ New draft Bill decriminalises homosexuality
  8. ↑ The Cook Islands are set to decriminalize homosexuality
  9. ↑ This island nation is set to decriminalise homosexuality
  10. ↑ Crimes Bill goes to committee
  11. ↑ Cooks to begin hearing submissions on Crimes Bill
  12. ↑ Election delays two important bills, Cook Islands News, 23 April 2018
  13. ↑ (in French) Reine des Îles Cook : Notre loi anti-gay est injuste
  14. ↑ Marriage Amendment Act 2000
  15. ↑ Marriage Amendment Act 2007
  16. ↑ Cook Islands PM rules out marriage equality
  17. ↑ No gay marriage in the Cook Islands, says prime minister
  18. ↑ Frequently Asked Questions
  19. ↑ Cook Islands Fact file
  20. ↑ Employment Relations Act 2012
  21. ↑ Cook Islands Disability Act 2008
  22. ↑ Information Cook Islands.
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