On June 22, 2022, the Haitian newspaper Le National reported that the executive branch of the Haitian government had postponed bringing into force the new Code Pénal (Criminal Code) of Haiti from June 24, 2022, to June 24, 2024. While the official reasons behind the decision are unclear, reports indicate that the legal profession and court officials lacked the necessary training on the contents of the new Criminal Code and that there needed to be more civic engagement regarding its implementation.
According to the U.S. State Department’s 2021 report on human rights practices in Haiti, the Haitian Ministry of Justice expected a “significant delay in the code’s implementation.” The United Nations Human Rights Council said that the postponement of bringing the code into force was “not a positive” development.
Reaction to the new Criminal Code was mixed, both among Haitian political actors, religious officials, and the population at large. The Haitian Conference of Bishops denounced the new Criminal Code for bringing what they viewed as foreign values into Haitian law, and a petition was launched calling on the president to revoke the new law, claiming it promoted homosexuality and lowered the age of consent to 15. Former Haitian parliamentarians also criticized the government for acting outside the parliamentary process and without debate, especially after having worked on a draft criminal code before the dissolution of the legislature.
The authors of the Criminal Code, who were members of a presidential commission, explained that it was drafted after consultative workshops with civil society, religious organizations, and the judiciary. In an op-ed published in the Haitian daily newspaper Le Nouvelliste, they attempted to rebut allegations made by the religious leaders and to assure Haitians that the new Criminal Code was drafted in an apolitical fashion, free of interference from the government.
The new code will replace the 1835 Criminal Code in accordance with a decree issued by then-President Jovenel Moise in March 2020. The new Code Pénal was not enacted by the legislative branch because there were no parliamentary elections before the term of office of members of the Chamber of Deputies expired in January 2020. Additionally, the Haitian Senate does not have the necessary quorum to operate in accordance with the 1987 Constitution. The source of the president’s power to enact new laws is unclear, and the Constitution states that the courts should apply only those decrees that are in conformity with the law. In decreeing the new Criminal Code, the president noted an urgent need to both criminalize certain offenses and bring Haiti into compliance with the its own Constitution, as well as with its obligations under international treaties. Because it was issued by a presidential decree, a future president can revoke the Criminal Code by decree as well.
The Contents of the New Criminal Code
The new Criminal Code will make significant changes to Haitian criminal law, notably in its effect on women, children, and sexual minorities. Abortion, for example, whether done by food, beverage, medicine, or violent means was previously illegal. The new Criminal Code will legalize abortion carried out in a recognized public or private clinic for a gestation period of up to 12 weeks, or in cases of rape, incest, or danger to the life of the mother. Sexual assault of a child under 15 years old was previously punishable by either 15 years of hard labor (in lieu of the 10-year sentence for sexual assault in general) or a life sentence of hard labor if the abuser was in a position of authority over the child. The new Criminal Code will add penalties for child prostitution, and includes a 15- to 20-year sentence for the rape of a child under 15 years of age. Crimes committed on the basis of a person’s real or presumed sexual orientation are now considered aggravating factors in sentencing. The new Criminal Code will also establish repeated sexual harassment as a crime, with penalties starting at six months’ imprisonment or 10,000 gourdes (approximately US$85).
Other major changes to Haitian criminal law through the decree will include the addition of crimes against humanity as a class of offenses. The new Criminal Code will also repeal outdated offenses such as article 246, referring to “the use made against a person of substances which, without giving death, will cause a more-or-less prolonged state of lethargy,” which was enacted in 1864 to repress superstitious behavior.
This article has been updated to reflect the postponement of the new Criminal Code’s coming into force.