LGBT rights in Samoa

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LGBT rights in Samoa
Same-sex sexual activity legal? Illegal
Up to 7 years imprisonment (not enforced)

Same-sex sexual acts are illegal in Samoa.

Samoan society is tolerant of transgenderism, but not of homosexuality. There is a tradition of raising some boys as girls to play an important domestic role in Samoan communal life. Such individuals are known as fa'afafine.[1] Groups advocating for better representation of fa'afafine and decriminalization of homosexuality include the Samoa Fa'afafine Association which sees anti-gay laws as hindering the full incorporation of both fa'afafine and gay and lesbian Samoans into society.[2]

Crimes Act 2013[edit]

Sections 67, 68, and 71 of the Crimes Act 2013 criminalize same-sex sexual acts.[3] This Act took effect 1 May 2013.[4]

Section 67. Sodomy - (1) A person who commits sodomy is liable:

* * * *

(c) in any other case, to imprisonment for a term not exceeding five (5) years.

(2) Sodomy is complete upon penetration.

(3) It is no defence to a charge under this section that the other party consented.

Section 68. Attempts to commit sodomy - A person is liable to imprisonment for a term not exceeding five (5) years who:

(a) attempts to commit sodomy; or

(b) assaults any person with intent to commit sodomy.

Section 71. Keeping place of resort for homosexual acts - A person is liable to imprisonment for a term not exceeding seven (7) years who:

(a) keeps or manages, or knowingly acts or assists in the management of, any 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 premises, 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 of the premises 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 some part of the premises 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 the indecent acts.

"Sodomy" was defined in the case of Police v Poi, [2007] WSSC 49, as meaning penetration of the male or female victim's anus by the offender's penis.[5]:page: 22

Sections 58D, 58E, 58G, and 58J of the Crimes Ordinance 1961 (now repealed) criminalized same-sex sexual acts.[6] In 2011, it was reported that Samoa would decriminalize same-sex sexual acts between consenting adults under a new Criminal Code recommended by Samoa's Law Reform Commission.[7][5]:pages: 24, 27 The government, however, rejected the Commission's recommendation.[8]

Recognition of same-sex marriage[edit]

In August 2012, Prime Minister Tuilaepa Sailele Malielegaoi reportedly "scoffed" at the idea that Samoa would follow the lead of New Zealand in legalising same-sex marriage. When asked if he would support legalisation, he said, "You are dreaming."[9] He reiterated this position, on explicitly religious grounds, in March 2013.

My view as the leader of Samoa on this gay marriage issue is simple: There is no way, none whatsoever, that this issue will ever be considered in Samoa. The Samoan parliament would never consider a bill such as this, at least not in my time. It is the strong and combined view of the government of Samoa and the country's religious denominations. We stand united against this because Samoa is founded on Christian beliefs. And Christian beliefs are against this type of behavior which the Bible states, was the reason for the curse that brought destruction on Gomorrah and Sodom. It is very clear that the sacrament of marriage is between a man and a woman. Same sex marriage is a sin. And no matter how people present this issue, no matter how they wrap it up, there is only one truth, and that is, this type of behavior is a sin.[10]

Discrimination protections[edit]

Sexual orientation discrimination is prohibited in employment, according to section 20(2) of the Labour and Employment Relations Act 2013.[11]

Crimes motivated by sexual orientation and/or gender identity are criminalized under Section 7(1)(h) of the Sentencing Act 2016.[12]

Summary table[edit]

Same-sex sexual activity legal No For male (Penalty: Up to 7 years imprisonment; not enforced) / Yes For female
Equal age of consent No For male / Yes For female
Anti-discrimination laws in employment only Yes
Anti-discrimination laws in the provision of goods and services No
Anti-discrimination laws in all other areas (Incl. indirect discrimination, hate speech) No
Same-sex marriages No
Recognition of same-sex couples No
Step-child adoption by same-sex couples No
Joint adoption by same-sex couples No
Gays and lesbians allowed to serve openly in the military Has no military
Right to change legal gender Yes Samoa has a large transgender community called the Fa'afafine.
Access to IVF for lesbians No
Commercial surrogacy for gay male couples No
MSMs allowed to donate blood No