Cook Islands Parliament decriminalises homosexuality

Photo: Parliament of the Cook Islands

Cook Islands Parliament has repealed provisions in its Crimes Act that criminalised homosexuality.

The Crimes (Sexual Offences) Amendment Bill 2023 which, among other things, aimed to decriminalise homosexuality was presented to Parliament and went through second and third reading before being passed into law on Friday.

This Bill amends the Crimes Act 1969 which states men can be jailed for five years for engaging in what’s dubbed “indecent acts” with other men. People hosting these acts in their premises (under section 159) faced up to 10 years’ jail.

The Amendment Bill was supported by the Cook Islands Party led coalition government and Opposition leader Tina Browne. Cook Islands United Party leader Teariki Heather and Democratic Party MP Vaitoti Tupa opposed the Bill during the debate.

Pride Cook Islands president Karla Eggelton said: “On behalf of Pride Cook Islands, we congratulate our Prime Minister and his government for doing the right thing – Love is Love! Te Iti Tangata, hug the ones you love, and now you can tell them they belong. We are one.”

Prime Minister Mark Brown told Parliament this amendment “brings into the 21st century laws which were passed nearly 60 years ago removes legal language that is no longer appropriate in this day and age”.

“Every country in the world, at some stage, has had to deal with this matter of removing discriminatory laws that criminalise people. Our country is no exception,” PM Brown said.

“We are a people of love and respect.  Today we are doing our job as lawmakers. We have removed a discriminatory and unjust law that goes against our constitution and our values as a nation. We are doing what is right and what is just.  We are protecting our people. That is what we have done today.” 

The Amendment Bill aims to also provide more protection for victims of rape and repealed provision that married women can only be raped by their husbands “if they are separated”.

“In addition, growing acceptance of the need for states to respect privacy and not discriminate means that the state should not criminalise consensual anal intercourse, whether in a heterosexual or homosexual context, or other forms of consensual homosexual behaviour.”

He said the Bill is not intended to “change the word of God”.

“Today, we passed legislation that will ensure we provide greater and equal protection from sexual crimes to all individuals under the law; legislation that will ensure that sexual criminal activity is prosecuted equally across the board,” Brown said.

“Today my party has fulfilled its pledge to stomp out all forms of discrimination among our society and to uphold our Government’s Constitutional commitments to human rights. Today we have decriminalised any consensual activity that involves people over the age of consent.

“Getting consensus within my caucus took a lot of work. I want to acknowledge the individual views that the members of our team have on parts of this bill relating to the decriminalising of sexual activity between members of the same sex. Our team has debated this matter thoroughly in our caucus. While each of us respect each member’s respective views on this subject, we are also mindful of our role as lawmakers in Parliament.”

Brown said “the role of the government is to protect our people and to protect our rights”.

Meanwhile, there were some strong views that the changes will contravene God’s law.

Cook Islands United Party leader Teariki Heather and Democratic Party MP Vaitoti Tupa strongly opposed the Bill during the debate.

In tabling the Bill, Minister for Justice Vaine “Mac” Mokoroa stressed to the Cook Islands public that those who have been in charge of progressing these amendments took a very cautious, a very prudent, systematic, and structured approach in bringing this bill to this house.

“We undertook widespread consultation with key stakeholders, with the outer Islands and with the wide range of groups and organisations within our country. Consultation was also undertaken with legislation drafters and advisors from within New Zealand and Australian government agencies,” Mokoroa said.

“I stand and can honestly state that this Bill took seven years because, part of the biggest obstacle of this matter is of our strong religious belief, we are a strong religious country…. this particular religious belief is what is affecting all of us, especially those of our members representing their constituency from here and from outer islands.”

Cook Islands United Party leader Teariki Heather said his party did not support the amendment.

“Our nation is a Christian nation. Our nation is a God-fearing nation,” Heather said.

Heather said “everything goes back to God’’.

“I urge everyone to question their conscience. This Bill will open up another door,” he said.

Heather said Cook Islands law often followed New Zealand law, and that country had legalised same-sex marriages.

“Do we want to become like them? Do we want to receive the consequences?” Heather asked.

Vaitoti Tupa, of the Cook Islands Democratic Party, also spoke in opposition to the Bill.

“The old Crimes Act was supported by the people of the Cook Islands,” Tupa said.

“I believe in our forefathers who established these laws.”

Tupa also invoked the story of Sodom and Gomorrah, which were two biblical cities that God destroyed due to their sin and wickedness.

Tupa said he wanted the issue to go to “a referendum of the people”.

“I reject these amendments,” Tupa said.

However, Cook Islands Democratic Party leader Tina Browne spoke in favour of the Bill.

“Our Constitution provides for fundamental human rights and freedom. It prohibits us for discriminating people based on sexuality,” Browne said.

“It provides that everyone should be treated equally.”

Browne said people should not have “second thoughts” about supporting this Bill, especially as the Cook Islands had signed up to the United Nations Convention on the elimination of discrimination.

Browne said it was “unfortunate” that the Bill had taken so long to get to this point, but this was “in the past”, and now everyone had to move forward.

“I have a clear conscience in supporting this Bill,” she said.

Government MP Tingika Elikana said the amendments were “timely”. 

Elikana had previously been chair of the Select Committee which had consulted with the public about the Crimes Bill.

“It’s upgraded the language used, and it’s removed misconceptions about certain conducts,” Elikana said.

Pride Cook Islands president Karla Eggelton told RNZ it was significant moment for the nation.

“It’s massive,” Eggelton said.

“We are so grateful for all the people and all the organisations throughout our community who have been working tirelessly to make this happen. This is big,” she said.

“And I think the message that we want to tell people is: hug your friend, hug your neighbour, hug your niece, hug your daughter, because now we are truly equal.”

Eggelton said the passing of the Bill reflected the Cook Islands’ changing society.

The Bill aims to also provide more protection for victims of rape and removes marriage as a defence against rape.

Moves to repeal the anti-homosexuality laws in the Crimes Act has faced multiple delays and have been in the process since 2017. In 2019, lawmakers made a u-turn on promises to decriminalise homosexuality after public consultation. A draft Crimes Bill penned in 2017 had removed “indecent acts between males” and sodomy as crimes, but these provisions were brought back and extended to females.