Last edited: October 31, 2004

Keep Law Out of Gays’ Bedrooms, Says Harding

Jamaica Observer, October 31, 2004

By Dwight Bellanfante, Observer staff reporter

THE law has no business in the private bedrooms of consenting adults, such as homosexuals and prostitutes, former attorney-general and justice minister, Dr Oswald Harding is insisting.

Harding remains unconvinced by the argument that the law should be used to enforce moral codes, and argued that the private activities of consenting homosexuals and prostitutes should not be criminalised.

Harding, who was attorney-general and justice minister and later foreign minister in the Jamaica Labour Party (JLP) administration of the 1980s, is basing his argument on the findings of the Wolfden Committee in Britain in 1954. He noted that the report recommended by a majority of 12 to one that homosexual practices between consenting adults in private should no longer be a crime. And it unanimously recommended, he said, that in the case of prostitution, though it should not itself be made illegal, there should be legislation “to take it off the streets” on the grounds that public soliciting was an offensive nuisance to ordinary citizens.

Harding was delivering the inaugural lecture of the Institute of Law and Economics at the PCJ Auditorium in Kingston last week.

He further posited that the Wolfden Committee’s report reflected those of noted philosopher John Stuart Mill in his Essay on Liberty to the effect that the function of the law “is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation or corruption of others, particularly those who are vulnerable because they are young, weak in body or mind or inexperienced”.

His comments have a particular relevance in today’s Jamaica, and internationally, against the background of current topical debate about the banning of Jamaican entertainers for anti-gay lyrics. The issue of same sex marriages has also featured prominently in the run-up to the American presidential elections.

Homosexual acts are deemed illegal in Jamaica under existing buggery laws, while prostitution is officially outlawed, though often winked on.

During his address, Harding also echoed the Wolfden Committee’s basis for the recommendation for relaxing laws against homosexual practices on the grounds that: “There must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business”.

The position of the American Law Institute was also used to bolster the argument that consensual relations between adults, in private, should be excluded from the scope of the criminal law.

In its 1955 draft model penal code, that body recommended that: “No harm to the secular interests of the community is involved in a typical sex practice in private between consenting adult partners, and there is the fundamental question of the protection to which every individual is entitled against State interference in his personal affairs when he is not hurting others”.

Elaborating on his position, Harding explored the contrary positions of Lord Devlin who challenged the notion of value-free law, noting that “the suppression of vice is as much the law’s business as the suppression of subversive activities”. He further suggested that the lack of a common morality promoted social disintegration, “so that society is justified in taking steps to preserve its moral code as it does to preserve its government and other essential institutions”.

But Harding turned that position on its head by pointing to the lack of supportive evidence, as well as by a comparison with a state (Nazi Germany) that had actually sought to enforce moral codes and beliefs, with disastrous consequences for itself and humanity.

“It would have been helpful if Lord Devlin had provided examples of some modern societies which have disintegrated because of the loosening of moral bonds. And it might be a better thing for some societies to disintegrate by loosening its moral bonds. Nazi Germany comes to mind, those societies disintegrate from within more frequently than there are broken up by external pressures,” said Harding.

He also explored the changing notions of public decency and how the public’s views towards certain moral issues had changed over time.

“That there are changes in the moral standards is visible all about. The fact that some pay lip service to an official sexual morality does not disguise the changes.

“The explosion and proliferation of massage parlours, as advertised in our local newspapers, speak to new practices in the contemporary social reality,” said Harding. In summation, Harding offered a position on the length to which the law should go in enforcing morality.

“It is not the function of the law to intervene in the private lives of citizens or seek to enforce any particular pattern of behaviour further than to preserve public order and decency and to protect the citizen from what is offensive or injurious and to provide safeguards against exploitation and corruption of others,” he said.

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