Law commission looks to cross off ‘archaic’ offenses

Cayman Islands laws that make it an offense to practice certain types of worship, criminalize activities associated with being homeless, and which ban a number of publications within the islands – despite many of those publications being available online – may soon be history.

The Law Reform Commission is currently reviewing the Cayman Islands Penal Code, which contains most of the criminal offenses for which a person can be punished within the islands, at the request of Attorney General Sam Bulgin. The code was first introduced in 1975 and has received only minor changes since.

“[The code was] revised primarily by the adjustment of type and length of punishments with the introduction of some new offenses,” the law commission reported. “Some of the criticisms of the code are that parts of it are archaic and constitutionally incompatible.”

Cayman’s Constitution Order, 2009, established a formal bill of rights in the territory for the first time. The majority of the bill took effect in November 2012, enabling protections against things like torture and slavery, as well as providing various rights to movement, privacy, non-discrimination and expression, among others.

The law commission noted there were some provisions within the Penal Code that could be at odds with the guarantees of those rights in the Cayman Constitution Order. There may be others that were simply “not consistent with modern legislative trends.”

Some of the criminal offenses to be reviewed by the law commission were listed within a report presented to the Legislative Assembly in late June.

Section 158: Idle and disorderly persons

This section of the Penal Code criminalizes begging and, in some case, fundraising for charity. Section 158(a) notes a person who “places himself in any public place for the purpose of gathering alms” could face imprisonment of up to four years under the current Penal Code.

The section seeks to prevent the practice of things like “obeah, myalism [West Indian folk religions], duppy-catching or witchcraft” and also criminalizes things like palm-reading or tarot card fortunetelling.

The Penal Code also contains a separate offense for obeah, which has been defined in various ways as “sorcery,” “spell-casting” or a West Indian religious practice. The law commission noted that section of the Penal Code needs to be reviewed.

The idle and disorderly persons section also criminalizes anyone who “obtains charitable contributions” unless authorized on behalf of Cabinet.

Sections 171-179: Defamation

An entire subsection of the Penal Code is dedicated to criminalizing speech or written communication that is untrue and which causes damage to a person’s reputation.

Typically, defamation either by libel (published or broadcast statements) or slander (public statements) is dealt with in civil court, but Cayman has been reluctant to remove the criminal provision in the Penal Code against it.

Human Rights Commission Chairman James Austin-Smith, a victim of defamatory articles in the Cayman Reporter newspaper back in 2015, declined to pursue criminal complaints against the publication and instead chose to handle the matter in civil court.

“My personal view is that criminalizing statements is a sledgehammer to crack a nut,“ he said at the time. “If you’ve got the protection of the civil law, criminal libel is perhaps something that we need to move on from and probably don’t need anymore. There are subsets of freedom of expression. The question becomes … where do you draw the line?”

The law commission also intends to review prohibition against “insulting the modesty of a woman” – which can lead to three years in prison for making any sound or gesture that “intrudes upon the privacy of a woman” or insults her modesty.

Section 157 – Obscene publications

The ban against obscene publications is largely targeted at the distribution or exhibition of pornographic materials including “photographs, cinematograph films, discs, tapes or other obscene objects or any other object tending to corrupt morals.”

In practice, such materials are widely available on the internet. However, Cayman still has a five-page list of various banned publications, including adult magazines, that cannot be imported for sale in stores but which can be viewed by anyone with a computer.

The bill of rights in section 10, which deals with freedom of conscience and religion, and section 11, which sets out freedom of expression, could put the Cayman Islands in legal difficulty when it comes to banning publications.

Banned books in the Cayman Islands also include many texts on the various magical arts, known as “obeah” in the Caribbean.

Some of the prohibited publications still listed are: “The Book of Magical Art,” “Hindoo Magic and Indian Occultism,” the “Sixth and Seventh Books of Moses,” and the “Great Book of Magical Art.”

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