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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