Last edited: January 02, 2005

Decriminalisation of Buggery on the Horizon?

Jamaica Observer, December 30, 2001

By O Hilaire Sobers

EARLIER this month, the Joint Select Committee on the Charter of Rights indicated that it is prepared to recommend to Parliament the repeal of laws that criminalise homosexual acts. Under the law, consensual buggery (between males and males and females) and “gross indecency” (kissing, fondling) is prohibited. The law does not prohibit homosexual acts between females.

Despite a compelling case made to the committee by JFLAG earlier this year, it declined to go further and recommend the inclusion of a constitutional guarantee against discrimination based on sexual orientation.

Given the general cultural antipathy to homosexuality, the committee should be commended for at least recognising that the time has come to stop criminalising acts committed in private that have no visible bearing or effect on the public good. In a democracy, the purpose of criminal law is to protect people from being victimised by the harmful behaviour of others. It is not a tool to merely impose one’s religious or moral beliefs on others.

The recommendation of the committee may face some significant opposition, considering the shrill and raucous defence of the legal status quo by the Prime Minister, PJ Patterson, at last year’s PNP conference. Patterson has since advocated his own “impeccable credentials” as a heterosexual, which may have the effect of fortifying political resistance to, as opposed to political support for the committee’s recommendation.

International human rights jurisprudence has long recognised that criminalisation of (consenting) homosexual conduct is a violation of basic human rights. One of the leading international human rights tribunals, the European Court of Human Rights, has made this declaration at least twice. In the Dudgeon case (1981), a homosexual resident of Northern Ireland complained to the European Court about local laws (similar to Jamaica’s)that criminalised sexual acts between consenting males. The Court held that the applicant had suffered an unjustifiable interference with his right to respect for his private life, in violation of Article 8 of the European Convention On Human Rights (which has some similarities to sections 13 and 19 of the Jamaican Constitution). It should be noted that the Court relied exclusively on the right to privacy to ground its decision, as the Convention doesn’t contain any provision guaranteeing protection against discrimination because of sexual orientation. Such a guarantee is enshrined in the South African Constitution. The South African Constitutional Court has relied on this guarantee (National Coalition for Gay and Lesbian Equality vs Minister of Justice) to declare unconstitutional the offences of consensual sodomy. The Court has also declared these offences to be violations of the rights of equality, dignity, and privacy under the Constitution of South Africa.

Given the trend of international jurisprudence, should we in Jamaica simply ignore or dismiss it as culturally irrelevant, given traditionally strong religious opposition and the dominance of ‘boom bi bi’ attitudes? Should Parliament, in considering the recommendation of the Joint Select Committee, capitulate to populism or principle?

In considering its position, I would hope that Parliament does not fall into the trap of assuming that the decriminalisation of consensual homosexual acts is tantamount to moral endorsement of those acts. Parliament may wish to consider that adultery was once a criminal offence. The decriminalisation of adultery has not meant any diminution in moral repugnance to it. Decriminalisation should signal not endorsement of homosexuality, but acceptance of people’s fundamental right to behave in keeping with their own beliefs, rather than those imposed by the law.

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