Our law does not discrimate against homosexuals
IT is usual to hear people speak of repealing the buggery law. This, of course, is not possible, since buggery is a common law offence and as such it is not a legislation that can be repealed by an authorised law-making body. Common law is not repealed, as it was never legislated by a legislative body. What is possible, is to repeal the legislation which provides for the punishment (not the creation) of the offence of buggery, and that is section 76 of the Offences Against the Person Act (OAPA), which should be read along with section 77 which provides for the punishment for the attempt to commit buggery, and section 79 which deals with acts of gross indecency between male persons.
But, what constitutes the offence of buggery? According to Criminal Law (2nd edition) by Smith and Hogan, the common law offence or crime of “buggery consists in intercourse per anum or per vaginam by a man or a woman with an animal. It can be committed by a husband with his wife. As in rape, penetration must be proved, but emission need not. Consent is no defence. Indeed, the consenting party is also guilty of the offence, not merely as an abettor, but as a principal offender. The person effecting the intercourse is known as the agent and the other party as the patient.”
I, by this article, wish to correct the impression, which has been assumed to be correct and held by our leaders, society, and the world at large, that sections 76, 77, and 79 of the OAPA are discriminatory in that the provisions discriminate against homosexuals. Although from a reading of the sections it is patently clear that it does not discriminate against any homosexual or heterosexual, our leaders have allowed the inaccurate and untrue statement that the law is discriminatory to be repeated in the public domain so often that it may be coming to be widely accepted to be true. Justice and truth require that this untruth be exposed and corrected. Section 76 of the OAPA.
provides that: “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.”
You will observe that the section does not provide for the punishment of a homosexual. It refers to “whoever”. In that event, the section is applicable to any man, whether a homosexual or heterosexual or bisexual, or all-sexual. How then can this be said to discriminate against homosexuals when heterosexuals and bisexuals who commit the offence are just as liable to be punished? As a matter of logic, it clearly cannot be true to say that this provision unfairly singles out homosexuals for punishment. Jamaicans, and Jamaican leaders need to know this and to publicly refute the untruthful assertion that our law is discriminatory.
The second section complained about as being discriminatory against homosexuals is section 77, which provides that: “Whosoever shall attempt to commit the said abominable crime, or shall be guilty of any assault with intent to commit the same, or of any indecent assault upon any male person, shall be guilty of a misdemeanour, and being convicted thereof, shall be liable to be imprisoned for a term not exceeding seven years, with or without hard labour.”
As it is with section 76, does section 77 single out the homosexual for punishment? The third section of the OAPA which is frequently alleged to be discriminatory is section 79. This section provides that: “Any male person who, in public or private, commits, or is party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be guilty of a misdemeanour, and being convicted thereof shall be liable at the discretion of the Court to be imprisoned for a term not exceeding two years, with or without hard labour.” In this section the offence that is punishable must be committed by a male. But does it require that the male person be homosexual for the offence to be committed? Here also the answer is “no”. And here again, as a matter of logic, it follows that the male person may be heterosexual, bi-sexual, allsexual, or homosexual.
The provision for punishment in this section therefore cannot be said to discriminate against homosexuals. The truth is that these sections 76, 77 and 79 of the OAPA which, although an old law, really speak to a kind of behaviour which Jamaican society, to this day, finds to be unacceptable, regardless of the sexual orientation or sexual practices of the offender.
As a matter of logic also, not even the Charter of Rights provision in the constitution that a marriage is between one man and one woman can be said to discriminate against the homosexual because again, that man may be a homosexual or a heterosexual or bi-sexual. Where then is the discrimination? What the OAPA does is not to punish any particular kind of male or person, but to punish for the behaviour or kinds of behaviour and/or conduct that we in Jamaica believe to be unnatural, obscene, and unacceptable.
Blaming the OAPA for spread of HIV
Another area of inaccuracy and false allegation regarding the OAPA is in relation to the spread of HIV. I have been to fora and heard speakers assert that the fear of prosecution for a criminal offence under the OAPA is the reason for homosexual men not seeking medical attention thereby resulting in the increased rate of the spread of HIV among the homosexual population, as they remain untreated.
However, it is wrong to blame the failure to seek medical treatment on the existence of the OAPA, as even if information were to be given by an HIV-infected homosexual person to his health provider of contact with another male person that information could not be used to mount a successful prosecution for an offence under sections 76, 77 and 79 of the OAPA. Whatever fear the homosexual person may have in this context, it ought not to be a fear of prosecution pursuant to the sections of the OAPA.
The attempt to link the spread of HIV infections with the existence of the OAPA is therefore not only simply wrong, but seems to be an intentionally false representation to put the blame on the law. It may be that the fear is really a fear of infection with a serious disease resulting from what they know to have been irresponsible conduct. Whatever the real reason for the fear, however, homosexuals, and indeed the whole society need to be told the truth, which is that in seeking medical attention and informing the doctor or health provider that the infection may have been the result of sexual intimacy with another male cannot be used as a basis for prosecution, and therefore the law ought not to be blamed for the spread of HIV infections among homosexuals.
Our leaders need to tell journalists and the media in general who ask them, and foreign leaders who may have been misinformed, that these laws are not discriminatory, certainly not against homosexuals. Whatever else needs to be changed, it is not the OAPA; for that law has never been and is not now the source of discrimination against homosexuals in Jamaica. It is good law that must not be amended or tampered with.
Maurice C Saunders is an attorney-at-law.