Last edited: January 25, 2005

The Walrus’s Agenda

The Barbados Advocate, December 6, 2004

By Jeff Cumberbatch

The time has come, the Walrus said, To talk of Many Things, Of Shoes, of Ships, of Sealing-Wax, Of Cabbages and Kings (Lewis Caroll)

I suppose that my recent criticism of Mr. Roger Marshall’s assertion that there is a scriptural basis for the death penalty as “arrant nonsense” was a bit excessive, but I am tired of the abuse of a text, widely viewed as authoritative, to justify all sorts of unethical, bigoted conduct. The danger is that the unquestioning majority of ci tizens will readily accept these self-serving interpretations and, contrary to their instinctive ethical sentiments, rationalise immorality, bigotry, racism, genocide and many other ills which run counter to the messages of love, tolerance, humility and p eace brought by the Son of God.

The sad history is there—apartheid, misogyny, slavery, racism, hatred, war, genocide, and ostentatious affluence have all been justified on the basis of Biblical interpretation. Now, Mr. Marshall and others are using it to justify the death penalty. And I suppose that in the absence of any specific form of this punishment being expressly advanced, any measure will suffice. So are we now free to execute our murderers by stoning, decapitation or crushing by an elephant? Or am I missing some other covenant which clarifies this issue?

I am confirmed in my view that the greatest problem of this decade will not be poverty, nor hunger, nor crime, but a dangerous, religious fundamentalism that could plunge this world into ethical chaos. So I apologise to Mr. Marshall for my unscholarly assessment of his argument, but I reject it out of hand. And if I needed further support for my position, it came recently from a most unlikely source. A recent issue of “Boondocks” the comic strip, had Huey, the afroed young revolutionary asking rhetorically “Honestly, do you think that if Jesus were alive today, He would support the death penalty?” Somehow, I doubt it.

Perhaps when God stated that “he who sheds man’s blood, by man shall his blood be shed,” and when Jesus cautioned Peter that “he who takes the sword, shall die by the sword,” they simply meant that those who cause suffering and pain to others, will likewise suffer at some time later. Not necessarily by State action, or by human agency, but at the discretion of God.

An understanding that finds reflection in the concept of Karma and the golden rule that you should do unto others as you would have them do unto you. I may be wrong but, as a simple person, I find it incredible that God would have inspired a message of salvation for all mankind and then couched it in such opaque terms that only a limited few persons such as Mr. Marshall, Mr. Tony Jordan and others would understand. “Thou shall not kill” seems clear enough to me, and far more consistent with a thesis of love and forgiveness than hanging a person by the neck until dead.

There is much ignorance in the public domain as to which forms of consensual sexual conduct are unlawful. Thus we often read or hear of legalising homosexuality or decriminalising prostitution, both technically inaccurate expressions, especially in the sense in which they are used. In fact and in law, homosexuality per se is not illegal, though one aspect of it, buggery or intercourse per anum, is. Further, homosexuals who indulge in public displays of affection involving genital contact, may be accused of public indecency. But both of these offences are equally “committable” by those of heterosexual persuasion, so that they are not homosexual offences as much. Further, the act of prostitution itself is not criminal in law, thought almost all the means of ensuring its occurrence; soliciting, brothel keeping, living off the earnings of prostitution, are themselves unlawful. Nevertheless, there are those who will not be convinced otherwise, and so we hear constantly of the damnation that awaits us if we decriminalise homosexuality or legalise prostitution. As it is, we may be in trouble already.

One critical question is, if we were in a situation where we were seeking for the first time to make certain kinds of sexual behaviour unlawful, what criteria would govern our determination and with what results? In other words, if we were in an original position, behind a veil of ignorance as it were, how would we decide which sexual behaviour should be unlawful or not? Of course we would have to take into account the nature of our society as ostensibly Christian. However, since we are not a theocracy, but a democratic constitutional republic, the more liberal point of view should also be taken into account. Some factors immediately come to mind.

Clearly we would want to criminalise all sexual contact which is not consensual, including bestiality, sex with those below the age of consent, and sex with mental defectives. In addition, sexual congress in public should be prohibited as well as any outrageous behaviour of a sexual nature in public—serious indecency, indecent exposure, lewd conduct etc.

Be yond these however, what remains is sexual relations between consenting adults in private—whereby no harm to the public is reasonably foreseeable. Any attempt to bar such contact, let alone criminalise it, would thus require justification. I am not disposed to providing any indicia to determine this outcome, but a cursory assessment of how we have done so far betrays some inconsistency and some rather odd perspectives. Thus buggery, even between married couples is illegal, but pre-marital sex is not; so me homosexual activity between adult males in private is illegal, but adultery, forbidden by the Seventh Commandment, is not; and sado-masochism may be illegal at times while sex without a condom is not, as is oral sex.

Are these distinctions based on rational thought? Biblical teaching? Or simply historical accident?

(Jeff Cumberbatch is a lecturer in law at UWI, Cave Hill)

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