An overhaul of Haiti’s archaic 185-year-old criminal laws provides stiffer penalties for rape, decriminalizes begging and, for the first time, addresses modern-era crimes like cybersecurity and terrorism financing while giving a clearer definition of what constitutes sexual harassment.
But the language of the new penal code on the legalization of abortion, discrimination based on sexual orientation, bestiality, scrubbing criminal records of felons and the age of sexual consent for girls is stirring controversy. Outraged Haitians have taken to the streets in protest and support of a Change.org petition demanding protection of the country’s morality, and a retreat by the government.
The laws, published by President Jovenel Moïse by executive order in late June, have been met with so much cultural, religious and societal resistance that more than 135,000 Haitians have signed the online petition describing the series of changes as “attacks by the government on the morality of Haitian society, on its customs and culture, while ignoring the real needs of the population.” In Creole and English, visitors are asked to reject “the legalization of child prostitution, incest, bestiality and homosexuality in Haiti.”
“The new laws are not necessarily in line with general Haitian values and customs,” said Pastor Gregory Toussaint, the founder of Tabernacle of Glory Church in North Miami and several Protestant churches in Haiti.
Toussaint, a rising firebrand preacher whose megachurch broadcasts services to Haitians in several languages, launched the Change.org petition last month in conjunction with the Protestant Federation of Haiti so that government officials, he said, can have “a sense of what the people are thinking and how many people are pretty much unhappy with the changes in the code.”
“A penal code is a legal document and like any legal document, you have things that are unsaid. We call them loopholes … and they can be exploited in a certain way,” he said. “The claims we are making is that, a lot of the things the penal code is promoting, they are actually doing it through the loopholes; the fact that it’s talking about a certain subject but it’s not talking about it completely. As a result, it leaves room for interpretation.”
The Moïse administration has pushed backed on the accusations while also inviting the public to debate the 1,036 different laws, which don’t go into effect for another 22 months.
In a stern letter, the Catholic Church voiced its objection to several of the provisions. Following a Mass in the seaside village of Jacmel in mid-July, the Association of Salesian Cooperators of Haiti led parishioners in a peaceful march through the town’s streets chanting anti-Jovenel, anti-abortion, anti-homosexuality and anti-same sex marriage.
But it is the Protestant pastors, who have quietly been leading a growing movement in Haiti since the Jan. 12, 2010, earthquake, who have been the most vocal.
Long publicly silent on the growing opposition and frustration to Moïse, who has been ruling by presidential decree since January, the widespread insecurity and deteriorating human rights landscape, the Protestant churches are breaking their silence and emerging as a new counterforce. Pastors are publicly condemning the laws as illegal, taking on the administration and vowing to continue to send their flock into the streets in protest amid a COVID-19 pandemic and talk of upcoming elections.
The backlash, led by disillusioned evangelicals, presents a new obstacle for Moïse. It is being viewed by some analysts as a loss of support in a key conservative constituency and a sector that is increasingly showing its political muscle in once traditionally Catholic countries across Latin America. It’s a level of conservatism that has helped moderate and center-right governments like Haiti’s gain power.
“This is going to be at the heart of the elections debate,” said Lemète Zéphyr, a Federation spokesman and president of its ethics commission. “Once someone stands in this camp, the population will not support you.”
Zéphyr accused Moïse of not holding timely elections in October deliberately so Parliament would become dysfunctional, allowing him to rule by executive order. Zéphyr said the president is acting without checks and balances at the expense of the Haitian population so that he can please the international community, which first signaled the need for a new criminal code as far back as 1997.
“The executive has no business making laws,” Zéphyr said. “The institution that exists to do this work is called the Haitian Parliament and as long as there is a move to change the Constitution, the penal code, the civil code without Parliament, it shows clearly a will on the part of the executive to do what it wants without any control, without any transparency. That has nothing to do with democracy and it’s contrary to modern politics.”
Zéphyr insists that the Protestant churches are not the only ones upset by the changes. There are people of other faiths, as well as those who aren’t involved in any church, who object to the new penal code on moral and social grounds, he said.
The opposition is not new. In years past, the administrations of both former presidents René Préval and Michel Martelly failed to make changes to the penal code. In 2007, Préval failed to send two new codes to Parliament even though they were ready, and Martelly set up a commission to further study the proposed changes.
Under Moïse the most recent Parliament had the code since 2017, but failed to adopt any of the provisions before the terms of two-thirds of the Senate and the entire Lower Chamber of Deputies expired in January.
So with the quiet backing of the international community, Moïse had Haiti adopt the measures by executive order, igniting a debate and an analysis that at times has been steeped in misinterpretation and full of resistance.
Lawyers, judges and legal scholars for weeks have been scrutinizing the document, which has come under attack for different reasons. While many agree that most of the newly rewritten text is clearer and simpler to understand, they also criticize, as Toussaint does, the ambiguity in some of the provisions.
Bernard Gousse, a lawyer and legal scholar, began working on the overhaul during his tenure as justice minister in Haiti’s 2004-06 interim government. He said while some of the reaction is understandable given Haitian culture and many Haitians’ own lack of knowledge about their country’s own laws, some of it is also overblown.
Take for example, the new law condemning forced sex with animals, known as bestiality. All of Haiti’s laws dating back to the adoption of the first criminal code in 1835, spoke only of the mistreatment of animals.
Critics say that while the new law says it’s a crime to force anyone to have sex with a beast, it makes no mention of someone voluntarily doing so, making such an act acceptable.
“This doesn’t mean that the law allows you to go and have sex with an animal,” Gousse said. “I am so baffled by this interpretation.”
Similar interpretations have been applied to language on incest because the new law — which for the first time makes sex with family members a felony and lists which relations would be considered incest — fails to mention aunts, uncles and cousins, which culturally are considered close relatives in Haitian society.
“First cousins are free to marry and as a matter of fact, there are valid marriages between first cousins as of today,” Gousse said. “This battle is 195 years too late.”
Then there is the matter of the laws outlawing discrimination based on sexual orientation. Never before mentioned in any Haitian law, sexual orientation is mentioned at least seven times in the new code. Pastors, judges, lawyers and some Haitians have translated the inclusion as being a legal recognition of homosexuality and support for gay marriages in the country.
Those involved in the construction of the code say this is not the case, and people should not read into what’s written. Besides, marriage is not governed by the criminal code but by civil law, which remains unchanged.
And there are the articles that mention the age of 15 in some sex crimes, which have been interpreted as lowering the consensual age of sex to 15. Not the case, said Gousse, who points out that the age reference is part of a new law stating that if one has sex with a minor under the age of 15, it is rape and carries a stiffer sentence. Over 15, he said, it is still considered rape but the burden of proof rests with the prosecutor.
While some groups, including the Association of Professional Magistrates, argue that the law is contrary to the Haitian Constitution, which considers Haitians to be adults at age 18, Haiti’s civil law, in existence since 1826, allows a girl to marry at 15 with her parents’ consent.
“There is no such thing as a sexual age of majority. There is a civil majority, which is set at 18,” Gousse said.
Gousse said given the strong cultural resistance to some of the changes, including the legalization of abortion, there should have been a public debate about the proposed laws before the code was published by presidential decree.
“A criminal code is a piece of legislation where a society says what it accepts and what it rejects. You have moral issues, sex, family issues that cannot be decided by technocrats, that must be decided by the people after intense and public debate. Those issues should have been debated. There was no rush to go with this piece of legislation in that manner.”
At the very least, the code should have been voted on by the Parliament, he said.
“I regret that the Parliament was not able to vote on it,” Gousse said. “There was a commission … and there was a report. I saw the report, where almost 90% of the content was approved by the Senate and the commission that reviewed that code.”
On Sunday, the Haitian government’s communications office sent out a 10-page document written by seven members of the Presidential Commission for the Reform of Justice that was appointed by Préval to tackle the code’s rewrite amid international pressure that Haiti’s laws needed to be tougher on certain crimes, do more to protect human rights and address modern problems.
Zéphyr, the spokesperson for the Protestant Federation, said the arguments have done nothing to change public opinion or the churches’ stance.
“They are in contradiction with the culture of the country, the popular beliefs of the population, the Constitution and the civil code,” he said. “The executive is not here to make laws, that’s not its role. And the reality we are living now is not one where they should be making all of these changes. It’s a context of coronavirus, where people are fighting to stay alive. They do not have the support of the state.”
“There are people here who are living in insecurity, who are in the midst of an epidemic, who don’t have electricity. We are going on two months without electricity in Haiti,” Zéphyr said. “That should have been the priority.”
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