THE Jamaica Forum of Lesbians, All-Sexuals and Gays (J-FLAG) said it is no longer calling for a wholesale repeal of the buggery law, but for the decriminalisation of sexual acts between consenting adults of the same sex.
In light of this, the community said it is not in agreement with the recent call by Opposition Leader Andrew Holness for the buggery law to be put to a referendum. Holness, who was speaking recently in Parliament, called on the Portia Simpson Miller-led Government to allow Jamaicans to decide whether the buggery law should be repealed through a referendum.
However, J-FLAG said a wholesale repeal of the buggery law would not be helpful to anyone because it would create a lacuna in the law.
“So, for instance, if a little boy or little girl should be raped in the anus, in the absence of the buggery law, there is no protection. So, as it is right now, the buggery law does serve some useful purpose, but it is problematic for consenting adults in private,” said Brian Paul, sub-regional co-ordinator of the Caribbean Forum of the Liberation and Acceptance of Genders and Sexualities (CariFLAGS) and advocate for J-FLAG.
According to Paul, a repeal would not necessarily be helpful because of the narrow definition of sex under the Sexual Offences Act of Jamaica. Under the Act, sex is defined as the penetration of a vagina by a penis, and by extension rape is defined as non-consensual sex between a man and a woman.
“Because rape is so narrowly defined, if it is a non-vaginal sexual assault, anal for instance, then the buggery law does serve some useful purpose, as the buggery law is the only way you can treat with ‘anal rape’,” Paul said.
He argued that a repeal of that law without requisite amendments to the Sexual Offences Act to make rape gender-and orifice-neutral would not benefit anyone.
“So what we have been calling for is for the buggery law to be reviewed, or limited, so as not to criminalise the consenting sexual habits of adults in private,” he told the Jamaica Observer.
This, he said, would be an amendment to the law to allow for consent as a defence, and for adults to engage in intercourse as they see fit, while allowing others to have the protection of the law if there is non-consensual buggery.
“So a referendum may be challenging, because it might not necessarily explain all the nuances involved in reviewing or amending the law, and it may simply ask ‘Do you feel the buggery law should be repealed?’ which would be either yes or no, and because of moral perspectives the majority of Jamaicans would say no, the buggery law should remain,” Paul said.
His views were shared by Father Sean Major-Campbell, priest at Christ Church in Vineyard Town, who said he fully supported a repeal or review of the buggery law as it makes no sense for Jamaica to continue to keep a law it cannot enforce. To enforce it effectively, the priest said, Jamaica would have to be prepared to make a tremendous investment in miniature biological cameras.
“To enforce it you would have to call upon an already stressed and burdened police force to assign officers to people’s bedrooms, hence the value of the miniature biological cameras, because you would have to plant these cameras in people’s bodies to see whether or not anything is entering the body, so it makes no sense,” he told the Observer.
Meanwhile, Paul took issue with the fact that the Jamaica Constitution does not include sexual orientation as grounds for protection against discrimination. He argued that sexual orientation was excluded because of the fear that this would eventually lead to gay marriage.
According to Paul, this is an important exclusion as it is the reason that Javed Jaghi’s landlord was able to evict him because he is gay. Jaghi, whose case is currently before the Supreme Court, is the first Jamaican to challenge the anti-sodomy laws.
“He had no constitutional redress simply because he was discriminated against on the basis of his sexual orientation and that was not in the Constitution. So on what grounds do you challenge the eviction?” he questioned.
Paul explained that Jaghi could have only challenged the case on the grounds that the buggery law itself is unconstitutional, and this was the basis on which his landlord was able to evict him. In light of this and other incidents, Paul said Parliament needs to set up committees to look at the gaps in the constitution to see that it is not protecting all citizens.
“There are many forms of discrimination which are implicitly allowed because of the gaps in the Charter of Rights,” he said. J-FLAG, he said, has modified its public education approach and is engaging the populace through social media and public seminars.
“Our challenge is to really break down the issue so the average Jamaican can understand that the buggery law is not a moral tool or public health tool, it’s really about sexual activity and the State’s role in telling adult citizens what they can or cannot do in the privacy of their homes,” he said.
The LGBT movement, according to Paul, is the civil rights movement of this generation in many ways. He noted that this movement has not only attracted the support of United States President Barack Obama, but several other global leaders.
The international community, he said, is particularly interested in Jamaica’s struggle and its progress in dealing with the issue.
As for the mentioned Javed Jaghai matter I am not so sure (albeit I am not a lawyer) but the Rent Restriction Act just at a glance seems to give the landlord all proxy and power to terminate a rental arrangement for virtually any reason and as it has been revealed only today on HOT 102FM Mr Jaghai was not in a tenant agreement with the accused landlord but was merely sharing a space with the real tennant who happens to be his friend, I know wonder if Mr Jaghai has standing in this challenge and why has the actual tennant been named as a claimant instead to further strengthen the case?
Mek we see nuh, meanwhile here is my two cents on the Professor Bain matter as it plays out to much upheaval from citizens:
also see the Gleaner's quick news brief:
Peace and tolerance