Sexuality and the law

THE ISLAND'S buggery laws as they relate to homosexuality are outdated and out of sync with the trend that has been developing in other countries, according to local legal experts.

They argue that the law should be amended where two consenting adults should be able to enjoy their privacy without the fear of being prosecuted. There is no law in Jamaica that specifically addresses homosexuality. The Offences Against the Person Act prohibits "acts of gross indecency" (generally meaning that a person can be charged for exposing oneself or for engaging in sexual intercourse in public). Then there is the offence called buggery, which falls under Section 76 of that Act and is defined as anal intercourse between a man and a woman, or between two men.

But where the legal scholars have a problem with the law is that no use of force or denial of consent is required for the commission of the offence of buggery. They also point out that most prosecutions involve consenting adult men suspected of indulging in anal sex. "In all my years as an attorney, I cannot recall seeing a man and a woman engaging in consensual anal sex ever prosecuted for buggery," said Clayton Morgan, president of the Cornwall Bar Association. "The buggery and gross indecency laws basically sanction discrimination against gay men."

Mr. Morgan said that he had successfully defended two clients who were charged for buggery after they were caught naked and in a compromising position. "For a start, the charge was ridiculous," he said. "They were not caught in a public place or in the vicinity of the public. They were two consenting adults minding their own business. The buggery charge, which carries a penalty of up to ten years in prison, was dismissed and they pleaded to the lesser charge of gross indecency. To prove buggery, one has to first prove penetration or run successful tests on blood or semen to show that there was actual intercourse."

Hilaire Sobers, human rights activist and attorney, agreed. According to him, other countries have sought to change their statutes as they relate to homosexuals and Jamaica was lagging way behind. "We see where England have changed the law recently in five of its British colonies and where there is also a global trend at decriminalising homosexuality," Mr. Sobers pointed out. "Our homophobic attitudes do not put us in good stead with the rest of the international community where human rights consciousness is currently a top priority in many countries."

Several months ago, Britain scrapped laws in its five Caribbean territories, acting after legislatures refused to do so. The order from the British Privy Council, which acts as the highest court for the territories, decriminalises homosexual activities between adults in private. The order, which is already in effect, applies to Anguilla, the Cayman Islands, the British Virgin Islands, Montserrat and the Turks and Caicos. The British government had for years attempted to persuade local politicians to repeal the laws in island legislatures. It notes that anti-gay laws in the islands violate human rights agreements signed by Britain.

"Jamaica simply needs to start moving with the times," noted Miami-based Jamaican lawyer, Christopher Adams. "These archaic laws need to be changed where all citizens can be guaranteed full protection under the constitution. Come to think of it, who are we trying to protect? Homosexuality is alive and well in Jamaica and it cuts right across the board. Doctors, lawyers, politicians, musicians, teachers, maybe even your next door neighbour or the guy that sits beside you at church. We need to start dealing with this thing in a mature manner and stop pretending as if we are living in a dream world."