A United Nation’s periodic review for Samoa has recommended the legalising of a sexual act between consenting adults, in a recent submission to the Human Rights Council.

The United Nations country team in Samoa has recommended the decriminalisation of the sodomy act amongst other suggestions in the report, which will be considered by the United Nations General Assembly in November.

It is part of the effort to address concerns of equality and non-discrimination with the working group in Samoa noting the need to repeal the Crimes Act 2013 to tackle the “cross-cutting issues”.

“The United Nations country team recommended that Samoa repeal all provisions in the Crimes Act that criminalised sodomy between consenting adults…,” the U.N. report states. 

The report also suggested that the nation carries out awareness-raising campaigns to combat the stigma against LGBTQI [lesbian, gay, bisexual, transgender and queer] members.

Under the Crimes Act 2013 a person who commits sodomy is liable to an imprisonment term of not exceeding 5 years. The law says it is no defence to a charge under the section that the other party consented.

According to the UN country team, in a previous review on Samoa, they noted six recommendations on combating discrimination and preventing violence based on gender identity. That includes recommendations to repeal provisions to criminalise sodomy between two consenting adults. 

Some of those recommendations were considered by the previous Government which passed laws in 2013 to legalise the impersonation of a female by any female in the country. The then Crimes Ordinance Act 1961, particularly on impersonation, was last enforced in the 1980s but discriminated against fa’afafine who are accepted by the Samoan community. Contacted for a comment, the President of the Samoa Fa’afafine Association, Alex Su’a said they are in support of the recommendation and it has always been one of the obstacles they faced.

Mr. Su’a said it was one of the grounds that was consistently raised by the association in its submission to the Universal Periodic Report even before criminal law review. 

“It’s not just fa’afafine, what about men and women,” said the President who is a lawyer by profession.

“This law is going into the privacy of two adults and it is basically interfering with what two adults are doing in their bedroom.

“The other question is enforcement…it is invading people's privacy and if adults consent to it and are not causing injury yet they are placed at the front of a public forum.”

The President added the counter argument of using religious reference to the sexual act and Sodom and Gomorrah is “counterproductive”. 

He then raised the question of what a fa’afafine has to do with such an argument that he viewed as being hypocritical towards them. 

Mr. Su’a said changing the laws will not happen overnight and the association’s position is to raise awareness, so that no-one is left behind in satisfying the Sustainable Development Goals.