Legal Eagle : Our laws should reflect reality
In recent weeks, Justice Minister Delroy Chuck has made several eyebrow-raising comments on the buggery laws of Jamaica. It is no secret that there is hardly another issue that anyone can discuss or debate in Jamaica that is more contentious, provocative and politically sensitive. At the heart of this issue is Section 76 of the old, almost archaic, piece of legislation called the Offences Against the Person Act, 1864.
The precursor to our present buggery law is the Buggery Act, 1533 of England. It was among some of the earliest legislation from England, which targeted what was described as the detestable and abominable crime committed with mankind or beast. The penalty under the 1533 Act was harsh. Convicted sodomites had to suffer pains of death, loss of good chattels and land. The death by hanging in 1853 of James Pratt and John Smith, who were convicted of sodomy, is evidence of the brutality of the early laws.
With the colonisation of Jamaica by the British, it was not surprising that the Offences Against the Person Act, 1864 was dragged to Jamaica by the British colonisers. Section 76 of the 1864 Act described the offence as unnatural, and outlined the offence and penalty as follows: "Whosoever shall be convicted of the abominable crime of buggery, committed either with mankind or with any animal, shall be liable to be imprisoned and kept to hard labour for a term not exceeding 10 years".
Sections of the society would wish for an amendment to Section 76 to delete the words: "either with mankind or". If that were done, the offence would only include mankind having sexual contact with animal.
PENETRATION OF THE ANUS
What the law currently does is to make the penetration of the anus a criminal offence. Consequently, it does not criminalise two adult males kissing each other, sleeping together or fondling each other, among other things. But if there is penetration of the anus, a crime is committed.
In England, the buggery law was repealed in 1967 so far as it related to consensual homosexual acts in private. Fifty years later, our Parliament has never even seriously considered what to do with Section 76 of our existing legislation.
It is hypocritical of the Government to hide behind a referendum to resolve this problem one way or the other. Over many years, our Parliament has passed many legislation that have had more far-reaching and significant impact on our daily lives than the repeal or upholding of what is termed the buggery law.
To my best recollection, Jamaica's last referendum was held in 1961. It is an empty promise for the Government to point to a referendum as the solution to resolve a legal issue that can be debated and decided in Parliament. Jamaica just cannot afford the millions of dollars to be spent on a referendum just to determine if our buggery laws should be repealed or amended. As a country, we have not been able to have a referendum to determine the critically important issue as to whether or not to leave the Privy Council.
The simple solution is for Parliament to debate the buggery laws by giving each member of Parliament an opportunity to speak on the issue and thereafter vote according to conscience or the instructions of their constituents. A vibrant parliamentary debate is a good start. The problem, it seems, is that most parliamentarians do not want to speak publicly about this thorny issue. But maybe the time is now.
As best as possible, our laws must reflect our moral norms and the realities of our present existence.