Backing Down On Buggery? Some Personal Rights Can Be Sacrificed For General Morality ............

Byron Buckley, 

THE RECENT political leadership debate has given new legs to the national discussion on the repeal or retention of the law against buggery.

Opposition Leader Portia Simpson Miller has proposed a review of the law, with legislators allowed to vote according to conscience, after consultations with constituents. Prime Minister Andrew Holness has indicated his willingness to reflect the views of the people or the status quo on the contentious law.

A review of the buggery law is timely and appropriate in light of the recent pressure from several of Jamaica's bilateral and multilateral partners to relax the provision. Our 50th year of Independence is a good point at which our society should pause and take stock of our cultural norms, values and mores; and, where appropriate, shed, reinforce or improve them.

The issues, from a jurisprudential perspective, include:
PRIVACY: the right of individuals to behave as they choose in the confines of their homes. Added to this is the notion of consensual behaviour.
MORALITY: Should or shouldn't the law be based on morality? And whose morality - private or public?
PRIVATE VS PUBLIC INTEREST: Where do we draw the line? How do we strike a balance?

There is a growing number of Jamaicans across the moral spectrum who are prepared to turn a blind eye to consenting adults - heterosexuals and homosexuals - engaging in consensual anal sex in the privacy of their homes. This view points to nascent support for the decriminalisation of buggery. As we review the buggery law, we must ask ourselves if freedom of consent and the right to privacy are sufficient grounds on which to repeal a law or decriminalise an act.

The Wolfendem Committee on Homosexual Offences and Prostitution in 1957 restated that: "It is not ... the function of the law to intervene into the private lives of citizens, or to seek to enforce any particular pattern of behaviour ... ."

However, the United Kingdom Privy Council denied an appeal by homosexual men who asserted that they had the right to engage in sadomasochist sexual behaviour involving the inflicting of pain. Their argument was based, inter alia, on Article 8 of the European Convention on Human Rights, which states that "everyone has the right to respect for his private and family life, his home and correspondence".

But in his ruling in the case (R. v Brown) Lord Templeman pointed out that:

"Society is entitled and bound to protect itself from the cult of violence. Pleasure derived from the infliction of pain is an evil thing." The court found the appellants guilty of acts occasioning bodily harm, although the victim had consented to the acts inflicted on him. The import of the ruling is that the law does have a reach into the bedroom if acts deemed criminal - even if consensual - are being committed. And in this case, bodily harm and pain were being inflicted.

So as our legislators and the society consider reviewing the buggery law, we must determine whether the act of anal sex is injurious to a person and, therefore, should be criminalised or decriminalised.

The weakness of the consent-and-privacy argument is illustrated by the following scenario. While it is legal for a man to have consensual sex with his neighbour's sister, mother and daughter in the privacy of his home, it would be illegal for him to do the same with HIS mother, sister and daughter. Even if they consented, he would be guilty of the crime of incest.

Moral foundation

Why are these behaviours - incest, buggery, sadomasochist sex - considered crimes? Why does the law have to regulate these actions? One view is that laws usually rest on a moral foundation that is shared and agreed to by the society. As Lord Devlin, in his essay on 'Enforcement and Morality', has pointed out, there is a public morality that is critical to keeping society together; and that society may use the criminal law to preserve morality that is considered essential to the society's existence. For example, some persons fear that relaxing the buggery law will promote homosexuality, which they consider inimical to family life and procreation.

Society, Lord Devlin, argued, is "held together by the invisible bonds of common thought. If the bonds were too far relaxed, the members would drift apart. A common morality is part of the bondage. The bondage is part of the price of society; and mankind, which needs society, must pay its price."

So the Jamaican society, I contend, must decide what's the price or trade-off in relaxing or retaining the buggery law.

According to Devlin, society has a prima facie right to legislate against immorality and society may use the law to preserve morality in the same way as it uses it to "safeguard anything else that is essential to its existence".

Some people argue that since the crime of buggery is not being prosecuted in the main, what purpose does the law serve? Why not repeal it along with the anti-marijuana law, especially in the case of the latter where there is constant violation?

It should be noted that even though a law might be frequently violated, it serves the purpose of establishing a standard of behaviour. For example, road traffic laws, despite frequent violation, are still enforced so as to restrain breaches and promote behaviour the society has agreed on.

In addition, the traffic laws remain despite frequent flouting by motorists because they and other laws prescribe behavioural standards as societal ideals.

Devlin argues that there can be no theoretical limits to the power of the state to legislate against what it considers as immorality, as it is believed there is no theoretical limits to the power of the state to legislate against treason and sedition.

"We may argue," notes Devlin, "that if a man's sins affect only himself, it cannot be the concern of society. If he chooses to get drunk every night in the privacy of his own home, is any one except himself the worse for it? But if half of the population gets drunk every night, what sort of society would it be? You cannot set a theoretical limit for drunkenness before society is entitled to legislate against the practice."

Adds Devlin: "Immorality then, for the purpose of the law, is what every right-minded person is presumed to consider to be immoral. Any immorality is capable of affecting society injuriously and, in effect, to a greater or lesser extent it usually does; this is what gives the law its locus standi. It cannot be shut out. But ... the individual has a locus standi too; he cannot be expected to surrender to the judgement of society the whole conduct of his life."

The debate over the repeal/retention of the law against buggery raises the old and familiar question of striking a balance between the rights and interests of society and those of the individual. The rights of each must be restricted to ensure, as far as possible, that the essential needs of each are protected. While the development of criminal law mainly subjugates the rights of the individual to the interests of society, going forward the guiding principle should be the toleration of the maximum individual freedom that is consistent with the integrity of society.

Byron Buckley is an associate editor at The Gleaner. The views expressed in this article do not necessarily reflect the views of this newspaper. Email feedback to columns@gleanerjm.com andbyron.buckley@gleanerjm.com.