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Human welfare and the law

Dr Derrick Aarons

Sunday, August 06, 2017

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TODAY, August 6, 2017, marks 55 years since we made our political break with our British colonialists, and over this period of time we have sought to make true our chosen motto “Out of Many One People”.

However, our attempt to be pluralistic and inclusive for all our inhabitants seems to be at odds with the approach by some participants in the currently raging debate regarding the possible decriminalisation of sex between consenting adult men.

It is instructive that the law being discussed was written for us by our British colonialists in 1864, a law against male same-sex sexual activity, the Offences against the Person Act.

Paradoxically, the British granted us independence in 1962, 98 years after imposing that Act, and within five years of that, in 1967, they themselves repealed their 'buggery law'.

Repeal of the law

Two weeks ago Britain marked the 50th anniversary of their decriminalisation of homosexuality on July 25, 1967.

They showed a one-hour documentary on BBC that portrayed the injustice meted out to reputed homosexuals in their society during the 1950s when hundreds of them were jailed, resulting in the passage of the Sexual Offences Act in 1967 that decriminalised homosexual acts in private between two men over the age of 21 years.

Despite the foregoing developments in the 'mother country', however, 50 years on some members of our society are fighting 'tooth and nail' to maintain that law in the governance of Jamaica.

It is instructive that the Offences Against the Person Act does not criminalise the status of being homosexual in Jamaica.

Also, it does not address sexual orientation or the related or relative attractiveness of men towards and by men. Neither does it do so for women. Instead, the Act focuses only on 'conduct' between men.

Offences Against the Person

The Offences Against the Person Act, under Section 79, 'Outrages on decency', states that “any male person, who, in private or public, commits, or is a 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”.

We should note that the Act does not define 'gross indecency', which, however, has been interpreted as referring to any kind of physical intimacy.

Section 76, 'Unnatural Offences', states: “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.”

Unjust laws

In a free and just society, every person lives under a rule of law, as opposed to a whim-ridden rule of men.

The law has four main purposes: 1) to establish standards and minimally acceptable behaviour; 2) maintaining order; 3) resolving disputes; and 4) protecting liberty and rights. However, as history has taught us, some laws may be just and others unjust. The colonial law supporting slavery was an unjust law.

That used to support and sustain apartheid in South Africa was another. Proponents for maintaining this discriminatory law in Jamaica (it does not prohibit same-sex activity between women) have used either of two approaches to sustain their position.

They have used either the 'slippery slope' fallacious method of argumentation, or seek to impose their religious views on the more secular people in society.

Fallacious argumentation

Proper reasoning and logic dictates that you judge each case on its own merit. You then cross each bridge if and when you get to it. It is not only fallacious, but unjust to argue that although position A may be discriminatory, because there is a risk that decriminalising A may lead to B (note – it is only a risk, not a certainty), and I do not want B, then I will hold on to my position regarding A irrespective of all considerations.

Such arguments are untenable in any department of philosophy or any place where logic and rational argumentation are taught.

As humans, we are supposed to be rational moral agents. We should also note that the dictates of the Bible and other religions are carried out by people of faith.

In any pluralistic society, however, if the religious views of the majority are forcibly imposed on a secular minority, then that amounts to religious tyranny.

The latter commonly occurs in some countries of the Middle East.

The issue of fairness

Whilst religious tyranny has occurred in many western societies in the past, the advent of a greater recognition of basic human rights and freedoms for all people have moved the governance of many countries to separate the functioning of the State from the functioning of the church.

With this move, laws have been guided by moral considerations rather than by Christian dogma or other religious views.

Consequently, as the rule of law requires the protection of the rights of even the smallest minority that exists (the individual), and as Jamaica is a truly pluralistic society, then good governance requires that our political leaders make decisions that are based not on the prejudices or religious beliefs of a very vocal majority, but on considerations that include justice for the rights and welfare of a very stigmatised minority who also pay their fair share of society's taxation.

Dr Derrick Aarons MD, PhD, is a consultant bioethicist /family physician, a specialist in ethical issues in medicine, the life sciences and research, and is the ethicist at the Caribbean Public Health Agency – CARPHA. (The views expressed here are not written on behalf of CARPHA)




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